LEGAL STUDIES TEXTBOOK

GRADE XII (ISC)

 CONTENT

LEGAL STUDIES TEXTBOOK

GRADE XII (ISC)
CONTENT
SYLLABUS
1) Law of Crimes
2) Alternate Dispute Resolution (ADR)
3) Legal Services Authorities Act, 1987
4) Indian Contract Act, 1872
5) Law of Torts
6) Transfer of Property Act, 1882
7) Fundamental Rights, Duties and Directive Principles of State Policy
8) Important Laws
9) Legal Maxims
1. Law of Crimes
Crime
Stages
Stage - 1: Intention
Stage - 2: Preparation
Stage - 3: Attempt
Stage - 4: Accomplishment
Meaning and Difference between Intention, Motive & Knowledge
Motive
Intention
Knowledge
Elements - Concept of Mens Rea and Actus Reus
Actus reus
Mens rea
Categories of Crime
Crimes Against a Person
Crimes Against Property
Inchoate Crimes
Statutory Crimes
Financial and Other Crimes
Elements, Illustrations & Punishments IPC
Offences against Human body
Culpable Homicide & Murder (Sections 299, 300, 302 & 304)
 Section 299 - Culpable Homicide
Section 300 - Murder
Section 302 - Punishment For Murder
Section 304 - Punishment for Culpable Homicide
Death by rash and negligent act (Section 304A)
Section 304A - Negligence
Dowry death (Section 304B)
Section 304B - Dowry Death
Assault and Criminal Force (Sections 350, 351 & 352)
Section 350 - Criminal Force
Section 351 - Assault
Section 352 - Punishment for Assault or Criminal Force
Cruelty by Husband or his relatives (Section 498A IPC)
Section 498A IPC - Cruelty by Husband or his relatives
Offence against Property –
Theft (Section 378 & 379)
Section - 378 - Theft
Section - 379 - Punishment for Theft
Extortion (Section 383 & 384)
Section - 383 - Extortion
Section - 384 - Punishment for Extortion
Robbery (Section 390 & 392)
Section - 390 - Robbery
Section - 392 - Punishment for Robbery
Dishonest Misappropriation of Property (Section 403)
Section - 403 - Dishonest Misappropriation of Property
Criminal Breach of Trust (Section 405 & 406)
Section - 405 - Criminal Breach of Trust
Section - 406 - Punishment for Criminal Breach of Trust…
Cheating (Section 415 & 417).
Section - 415 - Cheating
Section - 417 - Punishment for Cheating
Theft, Robbery, Extortion and Dacoity
When Theft is Robbery
When Extortion is Robbery
The Difference between Theft, Extortion, Robbery and Dacoity
2. Alternate Dispute Resolution
Introduction
Judicial vs. Quasi-Judicial Bodies
Concept of Tribunals
What is the need for Tribunals
 What is the difference between a Court and a Tribunal
What does the National Green Tribunal (NGT) do in particular?
What does the Income Tax Appellate Tribunal Do?
Section 89 CPC
Benefits of the ADR System
What are all the disputes covered under ADR?
Arbitration (all the sections that are aforementioned are from the Arbitration and Conciliation
Act, 1996)
Meaning
Arbitration Agreement
Court referral of Arbitration (section 8)
Arbitral Award
Meaning
Significance
Comparison with a Judgement
Setting aside of an arbitral award
Mediation and Conciliation
Meaning and Scope
Role of the Mediator
Role of the Conciliator
Sanctity of Settlement arrived through Mediation and Conciliation
Difference between Arbitration and Conciliation
Difference between Mediation and Conciliation
Differences between Arbitration and Mediation
Meaning
Jurisdiction
Award of Lok Adalat and Its Significance
3. Legal Services Authorities Act, 1987
Importance of Article-39 A
Legal Services Authorities Act, 1987
Objectives
Eligibility for Free Legal Aid
Legal Services Authorities Hierarchy : (Low to high)
Functions of the Central Authority
Role of Educational Institutions and Paralegal Volunteers
Paralegal Volunteers
Educational Institutions
4. Indian Contract Act, 1872
Introduction
Proposal
Promise
 Agreement
Contract
Meaning of Contract
Types of Contracts
Formation of Contract
Essentials of a Valid Contract
Offer and acceptance
Offer
Acceptance
Intention to create a legal relationship
Consideration
Capacity to Contract
Major
Sound Mind
Not Prohibited By Law
Free Consent
Free Consent- Sections 13 to 22
Coercion
Undue Influence
Fraud
Misrepresentation or misinformation
Mistake or miscommunication
Section 19
Legality of object
Void Agreement (Section 23 to 30)
Section 24
Section 25
Section 26
Section 27 :
Section 28
Section 29
Section 30
Differences Between
Coercion & Undue Influence
Fraud & Misrepresentation
Void & Voidable Contract
Valid Contract & Void Agreement
Void Agreement & Void Contract
5. Law of Torts
Introduction
Origin of Tort
Definition of Tort
Objectives of Tort
Essential Conditions of Tort
Existence of a Duty to Exercise Care
Wrongful Commission or Omission of an Act
Glasgow Corporation v. Taylor (1992)
General Cleaning Corporation Ltd v. Christmas (1953)
Actual Harm or Legal Harm
Injuria Sine Damnum
Ashby v. White
Bhim Singh v. State of Jammu and Kashmir
Damnum Sine Injuria
Gloucester Grammar School vs. Rival School Teacher
Legal Remedy
Kinds of Tort
Tort of Negligence
Essentials of negligence
Duty Of Care
The Duty must be towards the plaintiff
Breach of Duty to take care
Actual cause or cause in fact
Proximate cause
Consequential harm to the plaintiff
Intentional Tort
Battery
Assault
Defamation
Nuisance
Halsey V. Esso Petroleum Co. Ltd
Rose v. Miles (1815) 4M & S.101
Strict Liability
Definition and Principles of Strict Liability
Rule in Rylands v Fletcher
Essentials of Strict Liability
Key Elements of Strict Liability
Examples and Application of Strict Liability
Exception to the Rule of Strict Liability
Absolute Liability
Definition and Principles of Absolute Liability
Rule in M.C Mehta Case
Key Elements of Absolute Liability
 Examples and Application of Absolute Liability
The Public Liability Insurance Act, 1991
Strict Liability vs. Absolute Liability
Vicarious Liability
Conditions for Vicarious Liability
Employer-Employee or Principal-Agent Relationship
Tortious Act Committed Within the Scope of Employment or Agency
Connection Between the Tortious Act and the Employment or Agency
No Personal Motive on the Part of the Employee or Agent
6. Transfer of Property Act, 1882
Introduction
Property
Origin
Definition
Types of Property
Movable Property
Immovable Property
The Transfer of Property Act, 1882
Section 3 of the Transfer of Property Act, 1882, states that immovable property does
not include standing timber, growing crops, or grass.
The General Clauses Act, 1897
The Registration Act, 1908
Transfer of Property
Meaning (Section 5)
What may be transferred (Section 6)
a) Transfer of Spes Succession
b) Right of Re-Entry
c) Easement
d) Restricted Interests
dd) Right to Future Maintenance
e) Mere right to sue
f) Public office
g) Pensions
h) Nature of interest
i) Statutory prohibitions on the transfer of Interest
Persons competent to transfer (Section 7)
Modes of Transfer
Sale of immovable property:
Mortgage of immovable property:
Leases of immovable property:
Exchange of immovable property:
 Gift of immovable property:
Actionable claim:
What are the differences between sale, mortgage, exchange and lease
Doctrines
Doctrine of Election
Doctrine of Lis Pendens
7. Fundamental Rights, Duties and Directive Principles of State Policy
Introduction
Salient features of Fundamental Rights
Importance of Fundamental Rights
Amendability of Fundamental Rights
Schedule of Fundamental Rights
Fundamental Rights
Right to Equality
Article 14 – Equality before the law
Article 15 – Prohibition of discrimination
Article 16 – Equal opportunity in case of public employment
Article 17 – Abolition of untouchability
Article 18 – Abolition of titles
Right to Freedom
Article 19
Article 19(1)(a) – Freedom of speech and expression
Article 19(1)(b) – Freedom to assemble
Article 19(1)(c) – Freedom to form associations or unions or cooperative societies
Article 19(1)(d) – Freedom to move freely
Article 19(1)(e) – Freedom of residence
Article 19(1)(g) – Freedom of profession
Article 20 – Protection of citizens in case of conviction for offences
Article 21 – Right to Life
Article 21A – Free education for children of 6-14 years of age
Article 22 – Protection against arrest and detention in certain cases
Article 22(1)
Article 22(2)
Right against Exploitation
Article 23 – Prohibition of trafficking of human beings and forced labour
Article 23(1)
Article 23(2)
Article 24 – Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
Article 25 – Freedom of conscience and free profession, practise, and propagation of
religion
 Article 26 – Freedom to manage religious affairs
Article 27 – Freedom as to payment of taxes for promotion of any particular religion

Article 28 – Freedom as to attendance at religious instruction or religious worship in

certain educational institutions
Cultural and Educational Rights
Article 29 – Protection of Interests of Minorities
Article 29(1)
Article 29(2)
Article 30 – Right of Minorities to Establish and Administer Educational Institutions

Article 30(1)
Article 30(2)
Right to Constitutional Remedies
Article 32 – Right to Constitutional Remedies
Habeas Corpus
Certiorari
Prohibition
Mandamus
Quo Warranto
Restriction on the exercise of Fundamental Rights
Restriction on freedom of speech and expression
Restriction on freedom of assembly
Restriction on freedom to form association
Restriction on freedom of movement, residence and settlement
Restriction on freedom of profession, occupation, trade or business
Restrictions on practise of religion
Restriction on minority rights
Directive Principles of State Policy
Meaning
Features
Justiciability
Differences between Fundamental Rights and Directive Principles of State Policy.
Fundamental duties
Meaning
Enumerations
Importance of Fundamental Duties
Basic structure doctrine
8. Important Laws
Human Rights Laws
Definition of Human Rights
Difference between Human Rights and Fundamental Rights
 The Protection of Human Rights Act, 1993
Object of enactment
Composition (Section 3)
Functions of the National Human Rights Commission (Section 12)
Ombudsman
Meaning
Concept of Ombudsman
Meaning and Scope of Lokpal
Meaning and Scope of Lokayuktas
Limitation of the Lokpal and Lokayukta act:
Difference between Lokpal and Lokayukta
9. Legal Maxim
Actus Non Facit Reum Nisi Mens Sit Rea
Ad Valorem
Amicus Curiae
Audi Alteram partem
Assentio Mentium
Bona Fide
Bona Vacantia
Caveat Emptor
Corpus Delicti
Damnum Sine Injuria
De Die In Diem
De Minimis Lex Non Curat
Doli Incapax
Ejusdem Generis
Ex Post Facto
Ignorantia Facti Excusat-Ignorantia Juris Non Excusat
Injuria Sine Damnum
Locus Standi
Nemo Debet Esse Judex In Propria Sua Causa
Nemo Debt Non Quad Habit
Noscitur A Sociis
Obiter Dicta
Pari Materia
Per Incuriam
Qui Facit Per Alium, Facit Per Se
Quid Pro Quo
Ratio Decidendi
Res Ipsa Loquitur
Res Judicata Accipitur Pro Veritate
Salus Populi Est Suprema Lex
Stare Decisis
Ubi Jus Ibi Remedium
 SYLLABUS
1) Law of Crimes
1. Crime

a. Stages

b. Meaning and difference of Intention, Motive and Knowledge

c. Elements - Concept of Mens Rea and Actus Reus

2. Five categories of crimes (Meaning With Examples) -

a. Crimes Against a Person

b. Crimes Against Property

c. Inchoate Crimes

d. Statutory Crimes

e. Financial Crimes

3. Elements with illustrations and punishments of the following offences under

the Indian Penal Code

a. Offences against Human body –

i. Culpable Homicide & Murder (Sections 299, 300, 302 & 304)

ii. Death by rash and negligent act (Section 304A)

iii. Dowry death (Section 304B)

iv. Assault and Criminal Force (Sections 350, 351 & 352)

v. Cruelty by Husband or his relatives (Section 498A IPC)

b. Offence against Property –

i. Theft (Section 378 & 379)

ii. Extortion (Section 383 & 384)

iii. Robbery (Section 390 & 392)

 iv. Dishonest Misappropriation of Property (Section 403)

v. Criminal Breach of Trust (Section 405 & 406)

vi. Cheating (Section 415 & 417).

2) Alternate Dispute Resolution (ADR)

1. Judicial and Quasi Judicial Bodies;

a. Meaning of Judicial Bodies

b. Meaning of Quasi Judicial Bodies

c. Difference between Judicial and Quasi Judicial Bodies

2. Tribunals

a. Concept of Tribunals as Quasi-Judicial Forums

i. National Green Tribunal (NGT)

ii. Income Tax Appellate Tribunal (ITAT)

3. ADR system

a. Section 89 CPC as source of ADR system

b. Benefits of ADR system

c. Disputes that can be covered under ADR system

d. Types of ADR (Definition)

i. Arbitration

1. Meaning

2. Arbitration Agreement

3. Court Referral of Arbitration (Section 8)

4. Arbitral Award

a. Significance

b. Comparison with a judgement

c. setting aside an arbitral award

 ii. Mediation

1. Meaning and Scope

2. Role of the Mediator

3. Sanctity of Settlement arrived through Mediation

iii. Conciliation

1. Meaning and Scope

2. Role of the Conciliator

3. Sanctity of Settlement arrived through Conciliation

e. Differences between:

i. Arbitration and Conciliation

ii. Conciliation and Mediation

iii. Mediation and Arbitration

4. Lok Adalat

a. Meaning

b. Jurisdiction

c. Award of Lok Adalat

d. Significance

3) Legal Services Authorities Act, 1987

1. Importance of Article 39A of the Constitution of India;

2. Legal Services Authority Act, 1987-

a. Objectives;

b. Eligibility for getting free Legal Aid;

c. Legal Services Authorities and Committees at various levels

(only hierarchy);

d. Functions of the Central Authority (Section 4).

3. Role of Educational Institutions and Para Legal Volunteers.

4) Indian Contract Act, 1872
1. Introduction to Contracts

a. Proposal

b. Promise

c. Agreement

d. Contract

i. Meaning of Contract

ii. Types of Contracts

1. Valid

2. Void

3. Voidable

4. Express

5. Implied

2. Formation of Contract

3. Essentials of a Valid Contract

a. Offer and acceptance

b. Intention to create legal relationship

c. Consideration

d. Capacity to Contract

e. Free Consent - Sections 13 to 22

f. Legality of object

4. Void Agreement (Section 23 to 30)

5. Differences between -

a. Coercion & Undue Influence

b. Fraud & Misrepresentation

 c. Void & Voidable Contract

d. Valid Contract & Void Agreement

5) Law of Torts
1. Tort - Introduction

a. Definition of Tort

b. Essential Conditions of Tort

c. Kinds of wrong in tort law

i. Intentional Torts (Meaning & Examples)

1. Trespass to body - Assault & Battery

2. Trespass to Property

3. Nuisance

4. Defamation

5. False Imprisonment

ii. Tort of Negligence (Meaning, Elements & Examples)

iii. Strict Liability

1. Strict / No Fault Liability - Rule in Rylands v Fletcher

with exceptions

iv. Absolute Liability

1. Rule of Absolute Liability - Rule in M.C Mehta Case

v. Vicarious Liability (Meaning & Principles)

vi. Difference between Strict and Absolute Liability

6) Transfer of Property Act, 1882

1. Property

a. Types of Property:

i. Movable Property
 ii. Immovable Property

1. Definition of Immovable Property under S.3 TPA

2. Definition of Immovable Property under S.3(26) General

Clauses Act 1897.

2. Modes of Transfer of Property

a. Transfer of Property

i. Meaning (Section 5)

ii. What may be transferred (Section 6)

iii. Persons competent to transfer (Section 7)

b. Modes of transfer of property (Definition & Illustrations)

i. Sale

ii. Mortgage

iii. Lease

iv. Exchange

v. Gift

vi. Actionable Claim

c. Differences between Sale, Mortgage & Lease

3. Doctrines

a. Doctrine of Election

b. Doctrine of Lis Pendens

7) Fundamental Rights, Duties and Directive

Principles of State Policy
1. Fundamental Rights guaranteed by the Constitution.

a. Right to Equality (Articles – 14-18)

b. Right to Individual freedoms (Articles – 19-22)

c. Right against exploitation (Articles – 23-24)

 d. Right to freedom of religion (Articles – 25-28)

e. Right of cultural minorities (Articles – 29-30)

f. Right to Constitutional Remedies - Writs (Article 32)

2. Restriction on the exercise of Fundamental Rights

3. Directive Principles of State Policy - Meaning, Justifiability; Differences

between Fundamental Rights and Directive Principles of State Policy.

4. Fundamental duties – Meaning and all enumerations.

5. Basic structure doctrine

8) Important Laws
1. Human Rights Laws

a. Definition of Human Rights

b. Difference between Human Rights and Fundamental Rights

c. The Protection of Human Rights Act, 1993

i. Object of Enactment

ii. Composition (Section 3)

d. Function of NHRC (Section 12)

2. Ombudsman

a. Meaning and concept

b. Scope and limitation of Lokpal and Lokayukta Act 2013

c. Differences between Lokpal and Lokayukta.

9) Legal Maxims
1. Important Legal Maxims. Meaning of the following:

a. Actus non facit reum nisi mens sit rea

b. Ad valorem

c. Amicus Curiae
d. Audi alterem partum

e. Assentio Mentium

f. Bona fide

g. Bona Vacantia

h. Caveat Emptor

i. Corpus Delicto

j. Damnum Sine Injuria

k. De Die in Diem

l. De Minimis Lex Non Curat

m. Doli Incapax

n. Ejusdem Generis

o. Ex Post Facto

p. Ignorantia Facti Excusat - Ignorantia Juris Non Excusat

q. Injuria Sine Damnum

r. Locus Standi

s. Nemo Debet Esse Judex in Propria Sua Causa

t. Nemo debt non quad habit

u. Noscitur a Sociis

v. Obiter Dicta

w. Pari Materia

x. Per Incuriam

y. Qui Facit Per Alium, Facit Per Se

z. Quid pro quo

aa. Ratio Decidendi

bb. Res ipsa loquitur

cc. Res Judicata Accipitur Pro Veritate

dd. Salus Populi Est Suprema Lex

ee. Stare Decisis

ff. Ubi Jus Ibi Remedium

 1. Law of Crimes
Crime
Crime is the intentional commission of an act usually deemed socially harmful or
dangerous and specifically defined, prohibited, and punishable under criminal law.

● Three essential attributes for constitution of a crime: [Kenny’s Outlines of

Criminal Law]

○ crime is an act of commission or an act of omission on the part of a

human being, which is considered harmful by the State;

○ the transgression of such acts is prevented by a threat or sanction of

punishment administered by the State; and

○ the guilt of the accused is determined after that accusation against him
has been investigated in legal proceedings of a special kind in
accordance with the provisions of law.

● The definition of crime changes from age to age and differs from state to state
because it varies according to cultures, social values and beliefs and the
dynamics of social and political forces and factors, individually or
cumulatively.

Stages
Whenever a crime is committed, there is a proper strategy or stages behind it. In the
case of every crime, first, there is an intention to commit a wrong, followed by the
preparation to commit it, thus constituting the second stage. Thirdly, there is an
attempt to commit the wrong, followed by the fourth and last stage, i.e.,
accomplishment.

Stage - 1: Intention
● Intention is the first stage of committing a crime and is often regarded as the
mental or psychological stage. At this stage, the offender decides his intent and
the manner in which he would proceed towards committing the crime.

● The person cannot be penalised at this stage as mere intention or having a

mental concept to commit a wrong would not constitute an offence.
Stage - 2: Preparation
● Preparation for committing a crime is the second stage of the crime, and it
consists of organising the essential resources for performing the criminal act.

● Mere intention or preparation are not punishable as in several cases it becomes

difficult or at times impossible for the prosecution to prove that the
preparations in question are for the commission of the specific crime.

Stage - 3: Attempt
● An attempt is a straightforward move towards the commission of a crime after
the preparation of an agenda.

● As per the law, an individual is guilty of attempting to commit a wrong even if

the facts are such that carrying out the offence seems to be impossible.

Stage - 4: Accomplishment
● The last and final stage of committing an offence is the successful completion
of the act, so, if the person succeeds in committing a crime, they will be
culpable of the whole offence. However, if they fail to commit the crime, they
will still be guilty of their attempt.

● An example of accomplishment may include the following:

○ A fires a bullet at B with the motive of killing him. In such a case, if B is

dead, A will be held guilty of committing the offence of murder,
whereas, if B is injured, it will be a case of an attempt to murder.

Meaning and Difference between Intention, Motive &

Knowledge
Intention, Motive and Knowledge are all terms that are used interchangeably in day-
to-day life. However, their legal significance is such that they are differentiated
clearly.

Motive
● Motive is the ulterior element for committing a crime. It is something that
makes a person commit a crime. For every crime, there is a reason, and that is
motive.

● For example, If A and B are enemies for the last 10 years. And one day A kills
 B. From their previous relation, it can be assumed that what could be the reason
for A to kill B.

Intention
● Intention to commit a crime is seen from the act which a person commits. The
intention of a person can be seen from the overt act. It is the offender's mental
state while perpetrating the offence. (overt: done or shown openly,
undisguised)

● For example, giving poison to someone shows the intention of a person killing
another person.

Knowledge
● Knowledge is having possible information of the consequences of an act.

● For example, If A knows that B’s intestines are swelling and any blow on it
may cause serious injury to B, resulting in death. And A gives a blow to B on
that part. Here A has knowledge of the act he committed.

Elements - Concept of Mens Rea and Actus Reus

Criminal law operates on the principles of a Latin maxim, “actus non facit reum, nisi
mens sit rea” which literally means “an act does not make one guilty unless
committed with a criminal intent”.

Thus, to make a person criminally liable, it must be proved that an act, which is
forbidden by law, was caused by their conduct, and the conduct was accompanied by
an intention to do the crime.

Thus, there are two components of every crime, a physical element (actus reus) and a
mental element (mens rea).

Actus reus
● This refers to the act or omission that comprises the physical elements of a
crime as required by the statute. The requirement of actus reus varies
depending on the definition of the crime.

● For example, theft under IPC (S. 378) is defined as: “Whoever, intending to
take dishonestly any movable property out of the possession of any person
without that person’s consent, moves that property in order to such taking, is
said to commit theft.
 ○ A being B’s servant and entrusted by B with the care of B’s suitcase,
dishonestly runs away with the suitcase, without B’s consent. A has
committed theft. In this case, running away with the suitcase without
B’s consent is the actus reus.

Mens rea
● Under criminal law, mens rea is considered as the “guilty intention” and unless
it is found that the “accused” had the guilty intention to commit the “crime”, he
cannot be held “guilty” of committing the “crime”. This basically implies that a
person committing the crime is mindful of his/her actions and knows that
accomplishment of that act would result in a crime. To simplify, the intention
of the person committing a crime should be mala fide.

○ Mens rea can either be established by direct evidence or by drawing

inferences from the established facts and circumstances of a given case.

● The object of the law is always to punish a person with a guilty mind and not
put an innocent person to punishment.

● In the aforesaid example of theft, if A would have taken the suitcase if B

without his consent by mistake, it may not constitute the offence of theft; the
commission of a crime of theft requires proof of “dishonestly” taking away the
suitcase.

● Further, mens rea can be further divided into four levels depending upon the
degree of intent of committing the crime. These four levels are:

○ Negligence: This is the least and in fact the mildest form of mens rea
where the person is negligent of their actions and does not ensure
reasonable care in their act/omission.

○ Recklessness: This is of a slightly higher amplitude than negligence

where the person can anticipate the crime which may arise out of the
act/omission but did not expect or intend the same and acts negligently.

○ Knowledge: The third level is knowledge where the person is associated

with the risks that may occur on his act/omission and still continues with
such act/omission. Here, they are not negligent.

○ Intent: This is of the highest amplitude where the person intentionally

carries out an act or omits something in order to commit the crime.
Categories of Crime
Although there are many different kinds of crimes, criminal acts can generally be
divided into five primary categories: crimes against a person, crimes against
property, inchoate crimes, statutory crimes, and financial crimes.

Crimes Against a Person

● Crimes against a person are those that result in physical or mental harm to
another person.

● They can be divided into two main categories;

○ Forms of homicide and other violent crimes.

■ culpable homicide

■ first-degree murder

■ second-degree murder

■ vehicular homicide etc.

Where the physical harm to another individual is so severe that it

causes death, a defendant may be charged with any one of several
types of homicide.

○ Conversely, violent crimes, which are also very severe, include, but not
limited to:

■ assault and battery

■ arson

■ child abuse

■ domestic abuse

■ kidnapping

■ rape and statutory rape

● Crimes against a person often carry the steepest penalties.

Crimes Against Property
● Crimes against property typically involve interference with the property of
another party.

● Although they may involve physical or mental harm to another, they primarily
result in the deprivation of the use or enjoyment of property.

○ Many property crimes are theft crimes, including, but not limited to:

■ burglary

■ larceny

■ robbery

■ auto theft

■ shoplifting

Inchoate Crimes
● Inchoate crimes refer to those crimes that were initiated but not completed, and
acts that assist in the commission of another crime.

● Inchoate crimes require more than a person simply intending or hoping to

commit a crime. Rather, the individual must take a “substantial step” towards
the completion of the crime in order to be found guilty.

○ Inchoate crimes include, but not limit to:

■ aiding and abetting

■ attempt

■ conspiracy.

● In some cases, inchoate crimes can be punished to the same degree that the
underlying crime would be punished, while in other cases, the punishment
might be less severe.

Statutory Crimes
● Statutory crimes include those crimes, in addition to the crimes discussed
above, which are prescribed by statute. Statutory crimes may overlap with
other types of crimes.
● These crimes are specifically prohibited by statute because society hopes to
deter individuals from engaging in them.

● Three significant types of statutory crimes

○ alcohol related crimes

Alcohol-related crimes include, but not limit to, a variety of offences

regarding how and where alcohol can be consumed, such as:

■ Driving Under the Influence (DUI/OWI/DWI)

■ Open Container Violations

■ Minor in Possession of Alcohol

■ Public Intoxication

■ Underage DUI

■ Boating DUI

■ Selling and Supplying Alcohol to Minors

■ Refusing to Perform a Field Sobriety Test

■ Refusing to Perform a Breathalyser or Provide a Blood

Sample

○ drug crimes

Drug crimes concern any involvement in the creation or distribution of

drugs, including, but not limiting to:

■ drug possession

■ drug manufacturing

■ drug trafficking.

○ traffic offences

Traffic offences include crimes that may arise while an individual is

driving a vehicle on public roadways. Additional traffic offences
include, but not limit to:

■ driving on a suspended or revoked licence

 ■ driving without a licence

■ hit-and-run accidents

■ reckless driving

■ vehicular assault.

○ Where a traffic offence results in death, it can be charged as a far more

serious crime, such as a form of homicide.

○ financial/white collar crimes.

● Because a DUI/OWI/DWI involves both alcohol and the use of a vehicle, it is

considered both an alcohol related crime and a traffic offence.

Financial and Other Crimes

● Finally, financial crimes often involve deception or fraud for financial gain.
Although white-collar crimes derive their name from the corporate officers
who historically perpetrated them, anyone in any industry can commit a white-
collar crime.

○ These crimes include, but not limited to, many types of:

■ fraud and blackmail

■ embezzlement

■ money laundering

■ tax evasion

■ cybercrime

Elements, Illustrations & Punishments IPC

Offences against Human body
Culpable Homicide & Murder (Sections 299, 300, 302 & 304)
Section 299 - Culpable Homicide
Whoever causes death by doing an act without the intention of causing death, or with
the intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.

When assessing culpable homicide under Section 299 of the IPC, three important
criteria must be examined.

To begin, the accused must have been responsible for the death of another person.

Second, the accused must have had the intention to cause bodily harm but not death,
or the knowledge that the act is likely to kill.

Finally, the act of causing death must have occurred without justification or excuse
within the law.

Section 300 - Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or

2ndly.—If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or

3rdly.—If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death, or

4thly.—If the person committing the act knows that it is so imminently dangerous that
it must, in all probability, cause death, or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the risk of causing death or
such injury as aforesaid.

Section 300 of the IPC states that a person is guilty of murder if the following factors
are present:

1. The act of causing death: The accused must have killed another person.

2. The purpose to cause death: The accused must have had the intent to kill the victim.
Alternatively, the accused must have known that their conduct was likely to result in
the victim's death.

3. The act was committed with the knowledge that it would result in death: The
accused must have been aware that their acts were likely to result in the victim's death.
Section 302 - Punishment For Murder
Section 302 of the Indian Penal Code states that a person committing murder shall be
punished with a death sentence or imprisonment for life and shall also be liable to pay
a fine. It is a non-bailable and non-compoundable offence, i.e., the matter cannot be
settled outside the court.

Section 304 - Punishment for Culpable Homicide

Section 304 IPC provides punishment for culpable homicide not amounting to murder.
“Whoever commits culpable homicide not amounting to murder, shall be punished
with imprisonment for life, or imprisonment for either description of a term which
may extend to 10 years.

Death by rash and negligent act (Section 304A)

Section 304A - Negligence
Section 304A of the Indian Penal Code talks about causing death by negligence or
rash act. This Section mentions that if a person causes the death of another person by
doing a negligent or rash act which does not amount to culpable homicide shall be
punished with imprisonment for a term of a maximum of two years, or with fine, or
with both. For understanding the whole concept given in Section 304A we need to
understand the term negligent act.

Dowry death (Section 304B)

Section 304B - Dowry Death
To establish a case of dowry death, a woman must have died of burns or other
physical injuries or “otherwise than under normal circumstances” within seven years
of her marriage, according to Section 304B. She should have been subjected to
brutality or harassment by her husband or in-laws in connection with a dowry demand
“soon before her death.”

The term “dowry” is defined in the Dowry Prohibition Act of 1961, not in the IPC.
Hence it is specified in the statutory provision that for the purpose of Sub-section
304B, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition
Act (1961). It has been defined as any property or valued security granted or promised
to be given directly or indirectly, by one party to a marriage to the other party to the
marriage; or by the parent of either party to a marriage or by any other person, to
either party to the marriage or to any other person, at or before or any time after the
marriage in connection with the marriage of the said parties, but does not include
dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat)
applies.

Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend to imprisonment for life.

The Indian Penal Code (IPC) now includes Sections 304B (dowry death) and 498A
(cruelty by a husband or his family) post its amendment.

Assault and Criminal Force (Sections 350, 351 & 352)

Section 350 - Criminal Force
According to section 350 of Indian penal code, Whoever intentionally uses force to
any person, without that person’s consent, in order to the committing of any offence,
or intending by the use of such force to cause, or knowing it to be likely that by the
use of such force he will cause injury, fear or annoyance to the person to whom the
force is used, is said to use criminal force to that other.

Section 351 - Assault

Whoever makes any gesture, or any preparation intending or knowing it to be likely
that such gesture or preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal force to that person, is
said to commit an assault.

Section 352 - Punishment for Assault or Criminal Force

Whoever assaults or uses criminal force to any person other than on grave and sudden
provocation given by that person, shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine which may
extend to five hundred rupees, or with both.

Cruelty by Husband or his relatives (Section 498A IPC)

Section 498A IPC - Cruelty by Husband or his relatives
Section 498A relates to the provision of cruelty done by the husband or his relatives
upon a woman. It states that, if the person who is the husband or his relative,
performs an act of cruelty upon a woman then he is liable to be punished with an
imprisonment of three years (which can be extended) and shall also be liable to pay a
fine.

Cruelty includes both physical as well as mental torture done upon a woman by her
husband or his relatives. The word ‘wilful conduct’ as mentioned in Explanation (a) of
Section 498A means an act done with intention. However, the proof of wilful conduct
depends upon the direct and indirect evidence.

Offence against Property –

Theft (Section 378 & 379)
Section - 378 - Theft
Section 378 of the IPC defines theft as, “Whoever, intending to take dishonestly any
movable property out of the possession of any person without that person’s consent,
moves that property to such taking, is said to commit theft”. There are five
explanations to the said definition, mentioned in the code (IPC) which are further
illustrated by 16 examples.

Section - 379 - Punishment for Theft

Whoever commits theft shall be punished with imprisonment of either description for
a term which may extend to three years, or with fine, or with both.

Extortion (Section 383 & 384)

Section - 383 - Extortion
Under the Indian penal code, the term extortion has been defined explicitly and how it
is constituted. Section 383 of the indian penal code states that if a person intentionally
puts another person in a position of fear or of threat to cause him injury, or deceitfully
persuade him so that he may deliver the property or any other valuable goods to
another person or any document which has been signed and can be turned in a
valuable security. Punishment regarding extortion is enshrined under section Section
384 of the Indian penal code.

Section - 384 - Punishment for Extortion

Section 384 of the Indian Penal Code, deals with punishment for extortion, “whoever
commits shall be punished with imprisonment which may extend to 3 years, or with
fine, or with both.” An offence under Section 384 is not enumerated under
compoundable offences (Section 320).

Robbery (Section 390 & 392)

Section - 390 - Robbery
Robbery is defined by the Black’s Law Dictionary as the felonious act of taking the
personal property in the possession of another from his person or immediate presence
against his will accomplished using force and fear, with an intention of permanently
depriving the true owner of the thing in question.

Section - 392 - Punishment for Robbery

The punishment for robbery is mentioned in Section 392 of the IPC. It states that an
offender of robbery shall be punished with rigorous imprisonment, which may extend
to ten years as well as shall also be liable for a fine. Furthermore, if the robbery is
committed on a highway between sunset and sunrise, i.e., at night, the prison term
may be enhanced to 14 years.

Dishonest Misappropriation of Property (Section 403)

Section - 403 - Dishonest Misappropriation of Property
Whoever dishonestly misappropriates or converts to his own use any movable
property, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.

Section 404- punishment for misappropriation of property

3 Years + Fine

Criminal Breach of Trust (Section 405 & 406)

Section - 405 - Criminal Breach of Trust
In layman’s terms, a criminal breach of trust involves trust regarding a property that
one person entrusts to another person (namely the accused) and he breaks or violates it
with a dishonest intention and consequently, it becomes a criminal act. For example,
A entrusted his bicycle to B to repair it but he uses it for his own purpose. Here, the
trust that A has over B is breached by B and it is done with a dishonest intention
therefore it shall be termed as criminal breach of trust.

Section - 406 - Punishment for Criminal Breach of Trust…

Section 406 IPC. Section 406 IPC states punishment for committing criminal breach
of trust. The section states as, “Whoever commits criminal breach of trust shall be
punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both.”
Cheating (Section 415 & 417).
Section - 415 - Cheating
Cheating is defined under Section 415 of the Indian Penal Code as whoever
fraudulently or dishonestly deceives a person in order to induce that person to deliver
a property to any person or to consent to retain any property. If a person intentionally
induces a person to do or omit to do any act which he would not have done if he was
not deceived to do so and the act has caused harm to that person in body, mind,
reputation or property, then the person who fraudulently, dishonestly or intentionally
induced the other person is said to cheat. Any dishonest concealment of facts which
can deceive a person to do an act which he would not have done otherwise is also
fraudulently or dishonestly inducing that person to deliver any property to any person
or cheating within the meaning of this section.

Section - 417 - Punishment for Cheating

Whoever cheats shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both.

Theft, Robbery, Extortion and Dacoity

According to Section 390 of the Indian Penal Code, 1860 “in all robbery there is either
theft or extortion.”

When Theft is Robbery

Theft is robbery when in order to commit theft or while committing theft, or while
carrying away or attempting to carry away property obtained by theft, the offender
voluntarily causes or attempts to cause to any person death, subject him/her to
wrongful restraint or cause hurt or induce fear of instant death, instant wrongful
restraint or causing instant hurt.

Thus, theft becomes robbery when the following conditions are satisfied;

● When the offender voluntarily causes or attempts to cause:

○ Death, wrongful restraint or hurt or

○ Fear of instant death, instant wrongful restraint or instant hurt.

● And the above act(s) is done

○ While committing the theft

○ To commit the theft

 ○ While carrying away the property obtained by theft or

○ While attempting to carry away property obtained by theft.

For example: A holds Z down and fraudulently takes Z’s money and jewels from Z’s
clothes without Z’s consent. Here A has committed theft, and by committing that
theft, has voluntarily caused wrongful restraint to Z. A has therefore committed rob-
bery.

When Extortion is Robbery

Extortion becomes robbery when the offender at the time of committing the offense of
extortion is in the presence of the person put in fear and commits extortion by putting
that person in fear of instant death, instant wrongful restraint or instant hurt to that
person or some other person and by doing so induces the person, so put in fear to then
and there deliver the thing that has been extorted.

Thus, extortion becomes robbery when the following conditions are satisfied;

1. When a person commits extortion by putting another in the fear of instant

death, wrongful restraint or hurt

2. Then the offender induces the person under such fear to deliver the property
at that very instant; then and there.

3. The offender is in the near presence of such a person put in fear at the time
of extortion.

For Example: A meets Z and Z’s child on the high road. A takes the child and
threatens to fling it down a precipice unless Z delivers his purse. Z, in consequence,
delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of
instant hurt to the child who is present. A has therefore robbed Z.

The Difference between Theft, Extortion, Robbery and Dacoity

Basis Theft Extortion Robbery Dacoity

Consent The Consent is The property is There is no

moveable obtained taken without consent, or it is
property is wrongfully consent. wrongly
 taken away by coercion. obtained.
without the
consent of
the owner.

Subject Matter It is of It may be Robbery may be It maybe is

moveable either of committed on committed on
property. movable or the immovable immovable
immovable property only property only
property. when it is in the when it is in the
form of form of
extortion. extortion

Number of Theft is Extortion It can be To commit

Offenders committed also can be committed by dacoity, there
by one or committed one or more must be five or
more by one or persons. more offenders
persons. more involved.
persons.

Force/ There no This element Force/ Force/

Compulsion element of does exist on compulsiois compulsiois
force or the person used. used.
compulsion. being put in
fear of
injury.

Element of Fear The element The element The element of The element of
of fear is of fear is fear exists only fear could exist
absent in present in when the in cases of
cases of cases of robbery is in the dacoity.
theft. extortion. form of
extortion.

Delivery of The property There is the If robbery is Similarly, if

Property is not delivery of committed in the dacoity is
delivered by property. form of theft, committed in the
 the victim. then there is no form of theft,
delivery of then there is no
property by the delivery of
victim. property by the
victim.

Sections under Given under Given under Given under Given under
IPC Section 379 Section 384 Section 392 of Section 395 of
of the IPC. of the IPC. the IPC. the IPC.

Punishments Imprisonmen Imprisonmen Rigorous Rigorous

t up to 3 t up to 3 imprisonment imprisonment
years or fine years or fine up to ten years up to 10 years
or both. or both. and fine. If and fine.
robbery is
committed on a
highway
between sunset
and sunrise, then
the period of
imprisonment
can be extended
up to 14 years.
 2. Alternate Dispute Resolution
Introduction
Alternative Dispute Resolution (ADR) is a mechanism to resolve disputes and
disagreements between the parties by arriving at an amenable settlement through
negotiations and discussions. It is an attempt to establish an alternative mechanism
other than the traditional methods of dispute resolutions. The ADR mechanism offers
to facilitate the resolution of matters of business issues and the others where it has not
been possible to initiate any process of negotiation or arrive at a mutually agreeable
solution.-

In India, ADR is established on the basis of Article 14 (Equality before law) and
Article 21 (Right to life and personal liberty) under the Constitution of India. The
Directive Principles of State Policy (DPSP) of Equal justice and free legal aid as
engraved in Article 39-A of the Indian Constitution can also be achieved by the ADR.

Judicial vs. Quasi-Judicial Bodies

A Quasi Judicial Body is a person or an entity formed to reduce the court’s burden.
Their powers resemble that of the court of law. These bodies can deal with the issues
for which these are formed. Some examples of Quasi Judicial Bodies in India are the
National Green Tribunal (NGT), the Comptroller and Auditor General of India
(CAG), the Income Tax Appellate Tribunal, the National Consumer Disputes
Redressal Commission, etc. The Quasi Judicial Bodies are different from Statutory
Bodies as the former can enact laws, while the latter can only deal with restricted
issues using the existing laws.

Judicial Bodies Quasi Judicial Bodies

These are fully judicial entities that are Quasi-judicial bodies have a semi-
independent from the other two branches judicial nature, combining features of
of Government, i.e., The Executive and both judicial and administrative
The Legislative.. functions. They are not entirely
independent, often reporting to or being
connected with the executive.
Judicial bodies primarily have an Quasi-judicial bodies perform both
adjudicative role, focusing solely on adjudicative and administrative
interpreting and applying the law functions. They make decisions like a
through formal legal procedures. For court but may also handle administrative
Example, the Supreme Court’s only tasks related to their specific functions.
function is to interpret the law and pass For Example, The Securities and
judgements, you don't see it taking care Exchange Board of India (SEBI) serves
of the administration of certain aspects as a quasi-judicial body, conducting
of the country. hearings and passing orders on violations
of securities laws while also performing
administrative functions like formulating
policies and regulating the securities
market.

They have the authority to interpret and They also have the authority to make
apply the law to make decisions that decisions, but they do not have the same
have the force of law. level of legal authority as judicial bodies.

Judicial bodies typically consist of Quasi judicial bodies may consist of a

judges or magistrates appointed by the combination of judges and experts
government or elected by the people. appointed by the government or by a
specialised agency.

Judicial proceedings are usually more The proceedings may be less formal, but
formal and follow strict rules of they still follow set procedures and rules
procedure. of evidence.

Judicial bodies have the authority to hear Quasi judicial bodies often have a more
and decide a wide range of legal disputes specialised focus, such as environmental
like civil, criminal, and constitutional protection, human rights, or labour
matters. relations.

Example: Supreme Court of India, High Example: SEBI, ITAT, NHRC, etc.
 Courts of India, District and Sessions
Court, etc.

Concept of Tribunals
Tribunal is a quasi-judicial institution that is set up to deal with problems such as
resolving administrative or tax-related disputes. It performs a number of functions like
adjudicating disputes, determining rights between contesting parties, making an
administrative decision, reviewing an existing administrative decision and so
forth. A Tribunal, generally, is any person or institution having an authority to judge,
adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal
in its title.

What is the need for Tribunals

■ To overcome the situation that arose due to the pendency of

■ ases in various Courts, various Domestic tribunals and other Tribunals

have been established under different Statutes.

■ Tribunals have been set up to provide expertise in the specified areas of

practice; for example, company law, taxation law, etc. These cases require
technical expertise to adjudicate and generally, Tribunals have the
technical members on Board specialising in the relevant area of the
tribunal. This helps the tribunal to dispose of the matter with precision and
ease.

■ Most tribunals are not bound by strict rules of procedure and hence they
may evolve a quick process of dispensing justice, however, without
compromising the natural principles of justice.

■ They are much more cost-effective and accessible as compared to

traditional courts.

What is the difference between a Court and a Tribunal

Courts Tribunals
 Courts are an established part of the Tribunals are specialised bodies
judicial system, with their powers established by law, with specific
stemming directly from the government. judicial powers.

A court's rulings can include judgements, Tribunals primarily issue awards.

decreesn , convictions, or acquittals.

The independence of court judges is The terms and tenure of tribunal

ensured, free from executive influence. members are determined by the
executive branch.

Courts adhere strictly to established rules Tribunals operate based on principles

of procedure and evidence. of natural justice, not necessarily
adhering to civil procedure codes.

Courts handle a wide range of cases. Tribunals specialize in specific types

of cases.

What does the National Green Tribunal (NGT) do in

particular?
The NGT has been established in 18 October 2010 for effective and expeditious
disposal of cases relating to environmental protection and conservation of forests
and other natural resources including enforcement of any legal right relating to
environment and giving relief and compensation for damages to person and property
and for matters connected therewith or incidental thereto.

It is a specialised body equipped with the necessary expertise to handle

environmental disputes and involving multi-disciplinary issues.

The Tribunal’s dedicated jurisdiction in environmental matters provides speedy

justice and helps reduce the burden of litigation in the higher courts. The Tribunal is
mandated to make an endeavour to dispose of applications or appeals finally within
six months of filing the same. It is situated in New Delhi.
What does the Income Tax Appellate Tribunal Do?
Income Tax Appellate Tribunal hears appeals concerning orders passed by the
income-tax authorities. It is the second forum to hear income-tax appeals after the
Commissioner of Income-tax (Appeals). The ITAT functions under the supervision
of the jurisdictional High Court and is subordinate to the High Court. The ITAT
should follow the precedent set by the jurisdictional High Court. That means it is
bound to follow the law laid by the High Court in a matter it is dealing with in
appeal. Similarly, the ITAT should also follow the precedent or law laid by the
Supreme Court of India.

ITAT is a quasi judicial institution set up in January, 1941 and specializes in dealing
with appeals under the Direct Taxes Acts. The orders passed by the ITAT are final,
an appeal lies to the High Court only if a substantial question of law arises for
determination.

Section 89 CPC
On the recommendations of the 129th report of the Law Commission, by way of an
Amendment in 1997, Section 89 was introduced for the very first time for the
settlement of disputes outside the court, with the avowed objective of providing
speedy justice. It is now made obligatory for the court to refer the dispute after issues
are framed for settlement either by way of 1) Arbitration, 2) Conciliation, 3) judicial
settlement including settlement through Lok Adalat, or 4) Mediation. When the parties
fail to get their disputes settled through any of the ADR methods, the suit can proceed
further in the court in which it was filed. The Supreme Court has upheld the
constitutional validity of this provision in the Salem Advocate Bar Assn vs Union of
India, 2003.

The provision sought to encourage consensual resolution, empowering litigants to

actively participate in finding solutions. Recognizing the flexibility and privacy
offered by ADR, Section 89 provided a statutory foundation for diverse ADR
methods, including mediation and arbitration. This legal recognition aligned with a
broader international shift towards embracing ADR as a mainstream component of
dispute resolution. Furthermore, the inclusion of Section 89 aimed to reduce the
burden on courts by diverting cases to alternative forums, contributing to a more
streamlined and effective judicial system. Overall, Section 89 emerged as a forward-
looking strategy to modernize dispute resolution, offering litigants a choice and judges
a tool to manage their dockets more efficiently.
Benefits of the ADR System
Alternative dispute resolution (ADR) procedures offer several advantages:

● A single procedure. Through ADR, the parties can agree to resolve in a single
procedure a dispute involving intellectual property that is protected in a number
of different countries, thereby avoiding the expense and complexity of multi-
jurisdictional litigation, and the risk of inconsistent results.

● Party autonomy. Because of its private nature, ADR affords parties the
opportunity to exercise greater control over the way their dispute is resolved
than would be the case in court litigation. In contrast to court litigation, the
parties themselves may select the most appropriate decision-makers for their
dispute. In addition, they may choose the applicable law, place and language of
the proceedings. Increased party autonomy can also result in a faster process, as
parties are free to devise the most efficient procedures for their dispute. This
can result in material cost savings.

● Neutrality. ADR, especially in the form of arbitration, is inherently neutral due

to the active involvement of the disputing parties in the selection of arbitrators.
The parties have the autonomy to choose arbitrators based on their expertise
and impartiality, ensuring that the decision-makers are not predisposed to favor
one side over the other. This collaborative selection process contributes to the
perception and reality of neutrality in ADR proceedings.

● Confidentiality. ADR proceedings are private. Accordingly, the parties can

agree to keep the proceedings and any results confidential. This allows them to
focus on the merits of the dispute without concern about its public impact, and
may be of special importance where commercial reputations and trade secrets
are involved.

● Finality of Awards. Unlike court decisions, which can generally be contested

through one or more rounds of litigation, arbitral awards are not normally
subject to appeal, due to a large amount of restrictions on the same.

● Enforceability of Awards. The Arbitration and Conciliation Act 1996,

generally provides for the recognition of arbitral awards on par with domestic
court judgments without review on the merits. This greatly facilitates the
enforcement of awards in India.
What are all the disputes covered under ADR?
All kinds of cases are covered under ADR, however ultimately it boils down to the
willingness of both the parties concerned to settle it though alternate dispute resolution
or to go to Court. That being said, While ADR is suitable for many civil and
commercial disputes, there are situations where it may be less practical or
inappropriate.

Here are some scenarios where ADR may face challenges:

● Criminal Cases: ADR is generally not suitable for criminal cases, where legal
violations are prosecuted by the state.

● Public Policy Matters: Disputes involving significant public policy

considerations may be more appropriately addressed through traditional legal
channels.

● Emergency Injunctions: Cases requiring urgent injunctive relief, where

immediate court intervention is necessary, might be better suited for litigation.

● Family Law Matters: While certain family disputes can be resolved through
ADR, issues like child custody may require court intervention.

● Third-Party Liability: Cases involving third-party liability, where parties not

directly involved in the dispute may be affected, might be more complex for
ADR.

● Enforcement of ADR Decisions: If there's a concern about the enforceability

of ADR decisions, especially across borders, parties may prefer court
judgments.

Arbitration (all the sections that are

aforementioned are from the Arbitration and
Conciliation Act, 1996)
Meaning
Arbitration is a procedure in which a dispute is submitted, by agreement of the parties,
to one or more arbitrators who make a binding decision on the dispute. In choosing
arbitration, the parties opt for a private dispute resolution procedure instead of going
to court.
According to Section 2 (a) of the Arbitration and Conciliation Act, 1996,
“Arbitration” means any arbitration whether or not administered by a permanent
arbitral institution.

Arbitration Agreement
An “Arbitration agreement” means an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or which may arise between them in respect
of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or in

the form of a separate agreement.

An arbitration agreement shall be in writing. An Arbitration agreement is in writing if

it is contained in-

1. A document signed by the parties

2. an exchange of letters, telex, telegrams or other means of

telecommunication[including communication through electronic means] which
provide a record of the agreement

3. an exchange of statements of claim and defence in which the existence of the

agreement is alleged by one party and not denied by the other.

If a contract mentions another document with an arbitration clause and both the
contract and the reference are in writing, then the arbitration clause is considered part
of the contract. In simpler terms, if a written contract points to another written
document that has rules for arbitration, those rules become a valid part of the contract.

Court referral of Arbitration (section 8)

A judicial authority, before which an action is brought in a matter which is the subject
of an arbitration agreement shall, if a party to the arbitration agreement or any person
claiming through or under him, so applies not later than the date of submitting his first
statement on the substance of the dispute, then, notwithstanding any judgment, decree
or order of the Supreme Court or any Court, refer the parties to arbitration unless it
finds that prima facie no valid arbitration agreement exists.

This means that, if a legal dispute arises and there's an arbitration agreement between
the concerned parties, that says any issues should be resolved through arbitration, a
court must refer the matter to arbitration upon request from one of the parties
involved, as long as the court doesn't see clear(prima facie) evidence that there's no
valid arbitration agreement. This referral to arbitration should happen even if there has
been a previous court judgment on the matter.

Also the request that is being discussed above, must be applied for, not later than the
date of submitting that party’s first statement on the substance of the dispute. The
application shall not be entertained unless it is accompanied by the original arbitration
agreement or a duly certified copy thereof.

If the party requesting arbitration doesn't have the original arbitration agreement or an
official copy because the other party has it, they can still apply for arbitration. In this
case, they need to submit their application along with a copy of the arbitration
agreement. Additionally, they should file a petition asking the court to instruct the
other party to provide the original agreement or an officially certified copy to the
court.

Notwithstanding that an application has been made under sub-section (1) and that the
issue is pending before the judicial authority, an arbitration may be commenced or
continued and an arbitral award made.

Even if a party has already requested arbitration and the matter is still being
considered by the court, the arbitration process can still begin or proceed. This means
that parties can go ahead with the arbitration and even reach a decision (arbitral
award) while the court is still dealing with the issue. In essence, the arbitration process
is not necessarily halted just because there is a pending application before the court.

Arbitral Award
Meaning
An award is defined as a decision or judgment, in the sense of an act by which a
dispute is resolved and, therefore, brought to an end. The term award refers to the
decision rendered by an arbitrator which serves to resolve the conflict between two or
more parties.

Significance
An arbitration award is the award granted by the arbitrator in their decision. This
award can be money one party has to pay to the other party. It can also be a non-
financial award, such as stopping a certain business practice or adding an employment
incentive.
Comparison with a Judgement

Particulars Arbitral Award Court Judgment

Nature and Origin Issued through arbitration Result of a legal

proceeding in a court of
law, where a judge makes
a decision based on
applicable laws and
procedures.

Decision-Makers Decided by arbitrators, Determined by a judge or

who are typically chosen a panel of judges who are
by the parties for their appointed by the state.
expertise in the relevant
field

Enforceability Very difficult to appeal. Can easily be appealed in

Usually final and binding. a higher court.

Cost and Time Can be quicker and more Court processes can be
cost-effective than court more time-consuming and
proceedings, depending on expensive due to
the complexity of the formalities and potential
dispute and the chosen appeals.
arbitration rules.

Setting aside of an arbitral award

The recourse against an arbitral award is governed by Section 34 of the Arbitration
and Conciliation Act, 1996.

Recourse to a Court against an arbitral award may be made only by an application for
setting aside such award in accordance with sub-section (2) and sub-section (3).

According to Subsection 2, An arbitral award may be set aside by the Court only if—
(a) the party making the application 1 [establishes on the basis of the record of the
arbitral tribunal that]—

1. Incapacity: A party can request to set aside an arbitral award if it can be shown
from the record that one of the parties involved was not capable (due to
incapacity) of participating effectively in the arbitration proceedings.

2. Invalid Arbitration Agreement: If the record indicates that the arbitration

agreement is not valid according to the law chosen by the parties or, if not
specified, the law currently in force.

3. Lack of Proper Notice: If the party making the application was not given
proper notice about the appointment of an arbitrator, the arbitral proceedings,
or was otherwise unable to present their case.

4. Award Beyond Scope: If the arbitral award addresses a dispute that was not
part of the original agreement to arbitrate or if it makes decisions on issues
outside the agreed scope. If separable, only the part beyond the scope can be set
aside.

Provided that: If the decisions on matters submitted to arbitration can be separated

from those not submitted, only the part of the arbitral award dealing with matters
outside the submission may be set aside.

5. Violation of Agreement or Law: If the makeup of the arbitration panel or the

procedures followed during arbitration didn't match what the parties originally
agreed upon, the arbitral award may be set aside. However, there are
exceptions: if their agreement conflicted with a non-negotiable part of the law,
or if there was no agreement, but the process didn't align with the law, then the
award could still be challenged. Essentially, it ensures that the arbitration
process sticks to what the parties initially decided or follows the law if there
was no specific agreement.

or

(b) the Court finds that—

1. The subject-matter of the dispute is not capable of settlement by arbitration

under the law for the time being in force, or

2. The arbitral award is in conflict with the public policy of India.

According to Subsection 3, An application for setting aside may not be made after
three months have elapsed from the date on which the party making that application
had received the arbitral award or, if a request had been made under section
33(correction and interpretation of award), from the date on which that request had
been disposed of by the arbitral tribunal:

Provided that the party has a good reason for not being able to make the application
within the initial three months, the court might consider the request if the party
submits it within an additional thirty days. After these thirty days, though, the court
won't accept any late applications.

According to Subsection 4, On receipt of an application under sub-section (1), the

Court may, where it is appropriate and it is so requested by a party, adjourn the
proceedings for a period of time determined by it in order to give the arbitral tribunal
an opportunity to resume the arbitral proceedings or to take such other action as in the
opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral
award.

According to Subsection 5, An application under this section shall be filed by a party

only after issuing a prior notice to the other party and such application shall be
accompanied by an affidavit by the applicant endorsing compliance with the said
requirement.

(6) An application under this section shall be disposed of expeditiously, and in any
event, within a period of one year from the date on which the notice referred to in sub-
section (5) is served upon the other party.]

Mediation and Conciliation

Meaning and Scope
Mediation is a process wherein the parties meet with a mutually selected impartial and
neutral person who assists them in the negotiation of their differences.

Mediation in India is a deliberate procedure where the contesting parties choose to

commonly discover a solution for their legal issue by entering into an agreement and
appointing a mediator. The decision-making power rests with the contesting parties,
with the mediator acting as a buffer to bring them to a comprehension. The parties can
recruit ADR legal counselors to represent them before the mediator and clarify the
situation in a professional way. The difference between arbitration and mediation are
that arbitration is a more formal process than mediation. An arbitrator should be
officially appointed either beforehand or at the time of need. A mediator can be
anyone, of any designation, can be appointed officially or casually depends upon the
desire of the parties. The mediation law in India has been made easy to use and
entirely adaptable.
Mediation in India is divided into two types which are generally followed:

1. Court-referred Mediation: The court may refer a pending case for mediation
in India under Section 89 of the Code of Civil Procedure, 1908. This kind of
mediation is often used in Matrimonial disputes, particularly divorce cases.

2. Private Mediation: In Private Mediation, qualified personnel work as

mediators on a fixed-expense premise. Anyone from courts, to the general
population, to corporates as well as the government sector, can appoint
mediators to resolve their dispute through mediation.

On occasion, even the court refer to mediation, as it is a simpler and quicker

procedure to get a resolution. Specially the divorce mediation in India is the most
common technique for mediation. The mediation in divorce cases, property cases,
family matters, help to hold the issue constrained to the parties just, and doesn't bring
it before the public, and reach to a solution maintaining the peace and harmony.

● Mediation is an age-old procedure of dispute resolution rehearsed since Vedic

period.

● It is a low cost, keeping the issues, particularly family matters secret among
three parties, two parties and the mediator.

● Also, the solution isn't forced on any party, it is a solution that both the parties
consented to. It, in this manner gives an effective solution in a tranquil way.

Role of the Mediator

The mediator plays the role of a facilitator, not a adjudicator.

● To create an enviroment in which parties before him are facilitated towards

resolving the dispute in a purely voluntary settlement or agreement.

● Remove obstacles of communication and facilitate mutually acceptable

agreements to resolve the dispute.

● He/she has to be neutral

● Neither delivers a judgement/statement nor dictate the terms of the agreement

to the parties.

● Review the mediation proceedings – in the first meeting the mediator requests
the parties to jointly sign a form that mentions the rules and framework of the
proceeding. Then he goes ahead with explaining how the mediation
proceedings are going to happen.
 ● also invites the parties to give a brief description of the facts from both their
perspectives.

● He then discusses the issue in hand and tries to come up with a solution which
is viable to both the parties.

● Also does not provide solutions to the problems unlike the conciliator.

Conciliation
Conciliation means “the settling of disputes without litigation”. It is a process in
which independent person or persons are appointed by the parties with mutual consent
by agreement to bring about a settlement of their dispute through consensus or by
using similar techniques which are persuasive.

The Indian legal system has always been adaptive to the development in the
international scenario in the case of amicable settlement of disputes. Section 89 of the
Code of Civil Procedure contains the term conciliation providing the provision for
out-of-court settlement of disputes. Furthermore, theArbitration and Conciliation Act,
1996 made on the lines of UNCITRAL model laws, contains explicit instructions to
regulate the conduct of the process of conciliation.

In the Arbitration and Conciliation Act, 1996 Sections 61-81 contain the clauses with
regard to Conciliation. It has a detailed list of guidelines from the commencement of
the proceeding with the selection of the conciliator to the principles of confidentiality
and privacy to be maintained and, later, the provisions of the termination of judicial
proceedings. The office of the conciliatory officer is specifically provided under
Section 12 of the Industrial Disputes Act, of 1947. The powers and functions of the
officer are also mentioned in the section.

Conciliation is becoming increasingly popular, as an alternative to other formal and

informal modes of dispute resolution due to its obvious advantages:

a) Conciliation is a flexible option suitable for various disputes, both small and large.

b) It eliminates the need for parties to go through the court system.

c) Parties can choose to withdraw from conciliation without harming their legal
positions at any stage.

d) It prioritises confidentiality throughout the process and even after a settlement is

reached.

e) Conciliation is cost-effective and results in faster dispute resolution.

f) It supports the maintenance of ongoing relationships between parties, even after
attempting a settlement. This is crucial in cases like construction contracts, family
matters, and business disputes.

g) There is no room for corruption or bias in the conciliation process, as the

conciliator is chosen by both the parties.

Role of the Conciliator

The role of a Conciliator is laid down in Section 67 of the Arbitration and Conciliation
Act, 1996. According to this section,

(1) The conciliator helps the parties independently and impartially to find a friendly
resolution to their dispute.

(2) The conciliator follows principles of objectivity, fairness, and justice, considering
factors like the parties' rights and obligations, trade practices, and the circumstances
surrounding the dispute, including their past business interactions.

(3) The conciliator can conduct the proceedings in a way they find suitable,
considering the case's circumstances and the parties' preferences. This includes
accommodating requests for oral statements and aiming for a quick settlement.

(4) At any stage of the conciliation, the conciliator can suggest settlement proposals.
These suggestions don't have to be in writing or include detailed reasons.

Sanctity of Settlement arrived through Mediation and Conciliation

A successful conciliation comes to an end only when the settlement agreement signed
by the parties comes into existence. It is such an agreement, which has the status and
effect of legal sanctity of an arbitral award under this section.

The law protects the sanctity of negotiated settlements and recognizes their
enforceability in India by placing them at par with an arbitral award on agreed terms.
Such an award is enforceable as if it were a decree of a Court. The travails of a
litigant, it is said, begin after a decree is passed.

Difference between Arbitration and Conciliation

Arbitration Conciliation

Arbitration is a quasi-judicial proceeding, Conciliation is a method of dispute

 where the parties to the dispute appoint an resolution in which a conciliator is
arbitrator or arbitrators by agreement to appointed to bring the parties to a common
adjudicate the said dispute ground and then settle the dispute between
them.

Arbitration proceedings are carried on by the Conciliation proceedings are carried on by

arbitrators, who are appointed as per the the conciliator, who is appointed as per the
provisions of Section 11 of the Arbitration provisions of Section 64 of the Arbitration
and Conciliation Act, 1996. and Conciliation Act, 1996.

The decision of the arbitrators, which is The conciliator cannot enforce his/her
known as an award, is enforceable against decision.
the parties to the dispute.

Arbitrators are not permitted to discuss the Conciliators are permitted to discuss the
issues directly with the parties or generate issues directly with the parties or generate
options for terms of settlement or options for terms of settlement or
negotiation. negotiation.

Arbitration can be chosen as a dispute Conciliation as a dispute resolution

resolution mechanism for both, present as mechanism can only be chosen for the
well as future disputes. dispute at hand.

Arbitration can only be opted for dispute Conciliation can be opted for in dispute
resolution if the parties opting for it have a resolution without any prior agreement
prior agreement regarding it. between the disputing parties.

Involves a neutral third party rendering a Revolves around a mediator facilitating

legally binding decision after considering communication and negotiation to help the
the arguments of both parties. parties reach a mutually acceptable
agreement.
Difference between Mediation and Conciliation

Mediation Conciliation

Mediation refers to a process of settling Conciliation is an alternative dispute

disputes by an independent and impartial resolution method in which an expert is
third party who assists the parties in appointed to resolve a dispute by convincing
reaching a common outcome. the parties to agree upon an agreement.

Regulated by the Arbitration and Regulated By both the Arbitration and

Conciliation Act, 1996. Conciliation Act, 1996 and The Civil
Procedure Code, 1908.

There can be only one mediator There can be one or more conciliators

In mediation confidentiality depends upon In Conciliation Confidentiality is

trust, and it is advised for all parties to sign a determined by the law.
Confidentiality Clause for extra measure.

In mediation, the mediator should be In conciliation the conciliator plays a more

impartial and objective to the parties’ active role.
dispute.

In Mediation, the mediator does not give In Conciliation, the conciliator also plays the
any judgement. role of evaluation and intervention for
settling the dispute.

Differences between Arbitration and Mediation(not in

syllabus)

Arbitration Mediation

Arbitration involves the disputing parties Mediation, on the other hand, is a non-
 presenting their cases to an arbitrator or a binding process where a neutral third party,
panel of arbitrators. The arbitrator(s) then the mediator, facilitates communication and
make a binding decision based on the negotiation between the parties. The
evidence and arguments presented by both mediator helps the parties in reaching a
parties. The decision reached in arbitration mutually acceptable resolution but does not
is legally binding and enforceable. impose a decision. Any settlement reached
in mediation is voluntary and requires the
agreement of all parties involved.

In arbitration, the arbitrator(s) have the In mediation, the mediator does not have the
authority to make a final and binding authority to impose a decision on the parties.
decision on the dispute. This decision is Instead, the parties themselves retain control
usually enforceable in court. over the outcome and have the final say in
whether to accept any proposed settlement.

Mediation proceedings
Arbitration
are also
proceedings
confidential,
are generally
and communications made during mediation are usually
confidential, and the arbitrator(s) typically protected from disclosure in subsequent
issue a final award that may be kept private legal proceedings.
unless required by law to be disclosed.

The arbitrator(s) act as adjudicators, hearing The mediator serves as a facilitator, assisting
arguments and evidence from both sides and the parties in communicating effectively and
rendering a decision. exploring potential solutions but does not
make a decision on the merits of the dispute.

The decision made in arbitration is legally Any settlement reached in mediation is

binding on the parties involved and can be voluntary and requires the agreement of all
enforced through the courts. parties. While the terms of a mediated
settlement can be incorporated into a
binding contract, the mediator does not have
the authority to enforce compliance with the
settlement.

Lok Adalat
Meaning
Lok Adalat is one of the alternative dispute redressal mechanisms in India. It is a
forum where disputes/cases pending in the court of law or at pre-litigation stage are
settled/compromised amicably. The Lok Adalat has been given statutory status under
the Legal Services Authorities Act, 1987. National Legal Services Authority (NALSA
1995) and other legal service institutions conduct Lok Adalat.

Jurisdiction
A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of:

1. any case pending before; or

2. any matter which is falling within the jurisdiction of, and is not brought
before, any court for which the Lok Adalat is organised.

The Lok Adalat can compromise and settle even criminal cases, which are
compoundable under the relevant laws.

Lok Adalats have the competence to deal with a number of cases like:

1. Compoundable civil, revenue and criminal cases

2. Motor accident compensation claims cases

3. Partition Claims

4. Damages Cases

5. Matrimonial and family disputes

6. Mutation of lands case

7. Land Pattas cases (establishing the lawful possession of a specific land or

property)

8. Bonded Labour cases

9. Land acquisition disputes

10. Bank’s unpaid loan cases

11. Arrears of retirement benefits cases

 12. Family Court cases

13. Cases, which are not subjudice

Award of Lok Adalat and Its Significance

Every award of Lok Adalat shall be deemed as a decree of civil court. Every award of
Lok Adalat shall be final and binding on all the parties to the disputed parties. No
appeal shall lie from the award of Lok Adalat. It focuses on the compromise between
the parties, if the compromise is reached an award is made and it is binding on all the
parties of the dispute. The evidence act and procedures law are not strictly followed
while assessing the merits of the case.
3. Legal Services Authorities Act, 1987
Importance of Article-39 A
“The State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities.”

Article 39 A is a Directive Principle of State Policy which refers to equal justice &
free legal aid. It imposes an obligation on the State to provide free legal aid to ensure
access to justice for all citizens.

Access to Justice: Recognizes that access to justice is a fundamental right & ensures
that justice is not denied to any citizen by financial and/or other shortcomings.

Equal protection before the law: Aligns with the principle of equal protection before
the law as enshrined in the constitution. It aims to bridge the gap between the
privileged & underprivileged sections of society by providing legal aid to those who
might not have the financial means to afford proper legal representation.

Protection from injustice & exploitation: Helps those who are of their rights and are
unable to navigate the legal system. Also helps reduce the possibility of wrong
convictions & ensures individuals are treated fairly under the law.

Judicial reforms: Led to the establishment of various legal bodies and organisations
aimed at providing free legal services.

Legal Services Authorities Act, 1987

It is the central legislation which provides the constitution of the legal services
authority on all levels, provides for the entitlement to legal services and also governs
the organisation of Lok Adalats.

Objectives
● Equal access to justice for all

● Free Legal aid

● Promotion of legal awareness

● Efficient dispute resolution

 ● Protection of marginalised groups

● Reduced Backlog

● Strengthening the rule of law

Provision of free legal aid may include:

● Payment of court fee, process fees and all other charges payable or incurred
in connection with any legal proceedings;
● Providing Advocate in a legal proceedings;
● Obtaining and supply of certified copies of orders and other documents in
legal proceedings.
● Preparation of appeal, paper book including printing and translation of
documents in legal proceedings.
● Rendering of any service in the conduct of any case or other legal
proceeding before any court or other Authority or tribunal. ● Giving of
advice on any legal matter.

Eligibility for Free Legal Aid

● A member of SC and ST

● A victim of human trafficking or beggars

● A woman or a child

● A person with a disability

● Victim’s of mass disaster, violence, caste atrocities, flood, drought,

earthquake or industrial disaster.

● An industrial workman

● An individual in custody

● Income receipt of less than prescribed annual income. (Rs.5L for Supreme
Court, varies for high courts of different states)

Legal Services Authorities Hierarchy : (Low to high)

● Taluk Legal Services Committee ( senior most judicial officer acts as
Chairman)
 ● District Legal Services Authority ( District judge will be chairman)

● State Legal Services Authority ( Chief Justice of High court is Patron- in-chief)

● High Court Legal Services Committee ( a sitting judge of High Court will act
as Chairman)

● Supreme Court Legal Services Committee(Sitting judge of Supreme Court will

act as chairman)

● Central/ National legal services authority

Functions of the Central Authority

National Legal Services Authority (NALSA) is the Central Authority, with the CJI as
the Patron in Chief.

The functions of the Central Authority are as following:

● Lay down policies and principles for fulfilling the provisions of the Legal
Services Act.

● Frame the most economic schemes for providing legal aid to the poor.

● Utilise funds at their disposal to be given to the State and District authorities.

● Organise Legal Aid camps in rural and slum areas.

● Undertake and promote research in the field of Legal aid, with special
emphasis on providing legal aid to the poor.

● To do all things necessary for the fulfilment of fundamental duties given under
Part IV-A of the Constitution.

● Develop, in consultation with the Bar Council of India, programmes for clinical
legal education.

● Take appropriate measures for spreading legal literacy and legal awareness
amongst the people and, in particular, to educate weaker sections of society.

● Make special efforts to enlist the support of voluntary social welfare

institutions working at the grass-root level.

● Coordinate and monitor the functions of State Authorities, District Authorities,

Supreme Court Legal Services Committee, High Court Legal Services
Committees, Taluk Legal Services Committees and voluntary social service
 Institutions and other legal services organisations and give general directions
for the proper implementation of the program.

● Provide grants and aids for various schemes and social service institutions.

Role of Educational Institutions and Paralegal

Volunteers
Paralegal Volunteers
Paralegal volunteers come from different walks of life. Since they work at a grass-root
level, they act as a bridge between the Legal Service Authorities & the public, so as to
ensure that legal services reach all sections of people, facilitate the implementation of
various government schemes for the entitled sections, & achieve a higher rate of legal
awareness.

Educational Institutions
Higher educational institutes play a pivotal role in promoting 'Access to Justice' and
legal aid by contributing to the development of a knowledgeable and skilled legal
community that is committed to serving the underprivileged sections of society.
Higher educational institutions in India are advancing ‘Access to Justice’ by shaping
the mindset of future legal professionals, facilitating practical experience, conducting
research, and actively engaging with communities in need. The integration of legal aid
principles into the core curriculum and extracurricular activities ensures that graduates
are not only knowledgeable in law but also committed to serving the underserved.
 4. Indian Contract Act, 1872
Introduction
The Indian Contract Act of 1872 is a law that regulates contracts and agreements in
India. It was enacted by the British in 1872 and is based on English Common Law.
The act is applicable to all states of India, except for Jammu and Kashmir.

Proposal
According to the Indian Contract Act 1872, a proposal is defined in Section 2(a) as
“when one person will signify to another person his willingness to do or not do
something (abstain) with a view to obtain the assent of such person to such an act or
abstinence, he is said to make a proposal or an offer.”

A proposal must be definite and specific in its terms, and it should be communicated
to the other party with the intention of obtaining their acceptance. Once the other party
accepts the proposal, it becomes a promise, and the terms of the contract bind the
parties. If the proposal is not accepted, it will be considered a mere invitation to offer,
and it will not create any legal obligation between the parties.

The entire process of entering into a contract begins with the proposal or an offer
made by one party to another. The proposal must be accepted to enter into an
agreement.

Promise
The Act in its section 2(b) defines the term “promise” here as: “when the person to
whom the proposal is made signifies his assent thereto, the proposal becomes an
accepted promise.

An engagement by which the promisor contracts towards another to perform or do

something to the advantage of the latter. In order to be binding on the promisor, the
promise must be made upon a sufficient consideration - when made without
consideration, however, it may be binding in for conscience, it is not obligatory in
law, being nudum pactum.

When a promise is reduced to the form of a written agreement under seal, it is called a
covenant.

When a promise is made, all that is said at the time, in relation to it, must be
considered; if, therefore, a man promise to pay all he owes, accompanied by a denial
that he owes anything, no action will lie to enforce such a promise. And when the
promise is conditional, the condition must be performed before it becomes of binding
force. Promises are expressed or implied.

Agreement

An agreement is a promise between two entities creating mutual obligations by law.

Section 2(e) of the Indian Contract Act, 1872 defines an agreement as ‘Every promise
and every set of promises, forming the consideration for each other, is an agreement’.

To form an agreement, the following ingredients are required:

1. Parties: There need to be two or more parties to form an agreement.

2. Offer/ Proposal: When a person signifies to another his willingness to do or

omit to do something with a view to obtain another’s assent. [Section 2(a)]

3. Acceptance: When the person to whom the proposal is made signifies his
assent for the same thing in the same sense as proposed by the offeror. [Section
2(b)]

4. Promise: When a proposal is accepted, it becomes a promise. [Section 2(b)]

5. Consideration: It is the price for the promise. It is the return one gets for his
act or omission. [Section 2(d)]

An agreement is, therefore, a promise or set of promises forming consideration for all
the parties*. [Section 2(e)]*

Agreement = Promise or set of promises (offer + acceptance) + Consideration

(for all the parties)
Contract
Meaning of Contract
A contract is a lawful agreement. In other words, an agreement enforceable by law is a
contract.

So Mathematically,

Contract = Agreement + Legal enforceability

A type of agreement which is enforceable by law is a contract (Section 2(h) of the

ICA). Enforceable by law means that, if somebody is aggrieved then he may approach
the court for remedies.

● When an offer is made with the intention to create a legal obligation it becomes
an offer for entering into a contract. Thus an agreement becomes a contract
when there is free consent of the parties, capacity of the parties to contract,
lawful consideration and lawful object or subject matter (Section 10).

For an agreement to become a contract it must give rise to a legal obligation and if it is
incapable of doing so, it is not a contract.

In the case of Balfour v Balfour [1919] 2 KB 571, Mr. Balfour promised to

pay his wife £30/month as she stayed in England for medical reasons.
When he failed to pay, Mrs. Balfour sued him. Her action failed because
there was no intention to create a legally binding agreement between Mr.
and Mrs. Balfour. A contract cannot be made without proper indication
about the legal rights and obligations of the parties to the contract. So, if
this were to be a contract then the wife would have had a right to receive
payment and the husband would have had the obligation to pay his wife.

This makes an agreement a wider term than a contract. In a Venn diagram, agreements
are a bigger circle than contracts which are a smaller circle and a part of it.

So, an agreement is a contract when:

1. Free consent of the parties: When there is an absence of Coercion (Section

15), Undue Influence (Section 16), Fraud (Section 17), Misrepresentation
(Section 18) and Mistake (Section 20, 21, 22), the consent is said to be free.

2. Capacity of the parties to contract: Section 11 and 12 lay down that the
competent parties are persons who have attained majority [Exception for this
was laid down in Mohori Bibee v. Dharmodas Ghose ILR (1903) 30 Cal 539
 (Pc)], persons who are of sound mind and persons who are not disqualified by
law. (Section 11, 12)

3. Lawful consideration and Lawful object: Section 23 lays down that the
consideration and object is lawful unless it is forbidden by law or it defeats
provisions of any law or is fraudulent or involves injury to person or property
or is violative of public health, morality, peace and order. (Section 23)

Let us look at some examples where agreements are not contracts:

Gabbar asked Samba to kill Jay and Veera and Samba agreed. This is an
agreement but the object of the agreement makes it an illegal one.
Therefore, it cannot be enforced and so it is not a contract.

Rajesh promises his wife Chitra that he will bring for her the stars and the
moon and Chitra agrees. Here, the object of the agreement is impossible to
perform and so it is not enforceable and cannot be termed as a contract.

A mother promises her crying child that she will buy a Barbie doll for her
but she does not buy it. Here, the promise was not made with the intention
to fulfil it and so it is not enforceable and cannot be termed as a contract.

Pinky offers a pen to Neelam and she accepts it, here an agreement is
made but such agreement is made out of friendship and has no
consideration. An agreement without consideration is not a contract (an
exception to this is Section 25 of the ICA which states that near relation
and natural love and affection can be said to be consideration).

Types of Contracts
Valid Contracts – A valid Contract is defined as an agreement that can be enforced
by law under the Contract Act, 1872. To consider a contract valid, it is essential that it
can be enforced by law. All the essential elements should be there in the agreement.

Void Contracts – Void contracts are illegal from the very beginning and hold no
validity under law. They are thereby un-enforceable.

Voidable Contracts – Voidable contracts are unlike void contracts in the sense that
one party is bound by the contract and the unbound party is capable of terminating the
contract as they are unbound to it.

Express Contracts – These contracts are those wherein the terms of the contracts are
expressed clearly whether in written documents or orally.
Implied Contracts – There are no oral or written terms in this type of contract. The
contracts are assumed owing to the facts of the parties. If an individual visits a
medical professional, he expects to be diagnosed for a disease or illness and be
advised a cure. This is an implied contract and a patient is capable of suing a medical
practitioner for malpractice.

Add info about Implied-in-Fact vs. Implied-in-Law Contracts

Formation of Contract
For the formation of a contract the process of proposal or offer by one party and the
acceptance thereof by the other is necessary. This generally involves the process of
negotiation where the parties apply their minds, make offer and acceptance and create
a contract.

When one person signifies to another his willingness to do or abstain from doing
anything with a view to obtaining the assent of the other to such act or abstinence, he
is said to make a proposal.

When the person to whom the proposal is made signifies his assent thereto, the
proposal is said to be accepted.

In order to convert a proposal into a promise, the acceptance must be

1. Absolute and unqualified any departure from the terms of the offer or any
qualification vitiates the acceptance unless it is agreed to by the person from
whom the offer comes. An acceptance with a variation is no acceptance; it is
simply a counter-proposal.

2. Expressed in some usual and reasonable manner. If the proposer prescribes any
particular manner of acceptance it has to be in that manner and where no
manner is prescribed it should be in a usual and reasonable manner.

Essentials of a Valid Contract

The Indian Contract Act, 1872 itself defines and lists the Essentials of a Contract
either directly or through interpretation through various judgments of the Indian
judiciary. Section 10 of the contract enumerates certain points that are essential for
valid contracts like Free consent, Competency Of the parties, Lawful consideration,
etc.
Other than these there are some we can interpret from the context of the contract
which is also essential.

Offer and acceptance

A valid contract must involve at least two parties identified by the contact. One of
these parties will make the offer and the other is the party that shall eventually accept
it. Both parties must have either what is known as a legal existence e.g. companies,
schools, organisations, etc. or must be natural persons.

Offer
According to section 2(a) of the Indian Contract Act 1872, an offer is made when
someone offers to do or does not do something.

● Example - When Ram proposes to sell his house to Shyam. Here, an offer is
made.

● An offer made should be clear, concise, and definite.

● It should be properly communicated and duly understood by the other party.

● The offer must be lawful and legal.

Acceptance
Section 2(b) of the Indian Contract Act defines acceptance as when one party makes
the offer, and the other party accepts it is called acceptance.

● The party to whom the offer is made gives his assent, and then it is said the
offer is accepted.

● The acceptance of the offer should be properly communicated to the offeror.

● The acceptance should not be ambiguous

Intention to create a legal relationship

When different parties enter the contract, a legal affinity is created among them. This
legal link is enforceable by law.

● Section 2(h) of the Indian Contract Act 1872 defines that agreements
enforceable by law are valid contracts.

● Agreements between family members like husband and wife and father and son
do not create a legal affinity unless the legality of the relationship is expressed.
 ● When the agreement creates a legal obligation, it becomes a contract.

The parties that are subject to a contract must have clear intentions of creating a legal
relationship between them. What this means is those agreements that are not
enforceable by the law e.g. social or domestic agreements between relatives or
neighbors are not enforceable in a court of law and thus any such agreement can’t
become a valid contract.

Consideration
Quid Pro Quo means ‘something in return’ which means that the parties must accrue
in the form of some profit, rights, interest, etc. or seem to have some form of valuable
“consideration”.

For example, if you decide to sell your watch for Rs. 500 to your friend, then your
promise to give the rights to the watch to your friend is a consideration for your
friend. Also, your friend’s promise to pay Rs. 500 is a consideration for you.

In Section 23 of the Act, the unlawful considerations are defined as all those which:

1. it is forbidden by law.

2. is of such a nature that, if permitted, it would defeat the provisions of any law,
or is fraudulent.

3. involves or implies, injury to the person or property of another

4. the Court regards it as immoral or opposed to public policy

These conditions will render the agreement illegal.

Capacity to Contract
The Indian Contract Act 1872 does not prohibit anyone from entering into a contract.
But this act defines certain persons as incapable of entering into a contract. The Indian
Contract Act specifically mentions who is capable of entering into a contract, which
has been discussed below.

Major
● A person who has achieved the age of majority.

● According to the Indian Majority Act, section 3 defines a person who has
achieved the age of 18 as a major.
Sound Mind
● The person entering into a contract must have a sound mind.

● Entering into a contract with someone with an unsound mind is invalid.

● The people, if they are generally of unsound mind, can only contract when they
are of a sound mind.

Not Prohibited By Law

● A person who is prohibited by law cannot enter into a contract.

● Convicts and insolvent persons cannot enter into a contract.

● A person recognized as incompetent to enter into a contract by a court of law.

Free Consent
Both parties entering into a contract must enter into a contract of their free will.
Section 13 of the Indian Contract Act 1872 states that consent is a contract's most
important requirement. When all the parties to a contract agree on the same thing in
the same sense, it is said to be free consent.

Free Consent- Sections 13 to 22

Consent is crucial for an agreement and thus for a valid contract. If two people reach a
similar agreement in the same sense, they are said to consent to the promise. However,
for a valid contract, we must have free consent which means that the two parties must
have reached consent without either of them being influenced, coerced,
misrepresented or tricked into it. In other words, we say that if the consent of either of
the parties is vitiated knowingly or by mistake, the contract between the parties is no
longer valid, according to Section 14.

A contract is said to be free consent when it is free from the following.

Coercion
● Section 15 of the Indian Contract Act 1872 defines coercion.

● When one party threatens the other to enter into a contract, it is an offense
under the Indian Penal Code.

● A contract under coercion can be voidable by the aggrieved party.

Undue Influence
● Section 16 of the Indian Contract Act 1872 defines undue influence.

● A contract is said to be influenced by “Undue Influence”, when the relationship

subsisting between the two parties is of such nature, that one party is in a
position to dominate the will of the other party, and uses that position to obtain
an unfair advantage over the other party.

● A contract under undue influence can be voidable by the aggrieved party.

Fraud
● Section 17 of the Indian Contract Act defines fraud.

● When one person knows that the fact is not true but still conceals the fact
actively to enter into a contract, it is regarded as fraud.

● A contract under fraud can be voidable by the aggrieved party.

Misrepresentation or misinformation
● Section 18 of the Indian Contract Act defines misrepresentation.

● When one party misleads the other party and makes them believe something is
true, it is called misrepresentation of facts.

● A contract under misrepresentation can be voidable by the aggrieved party.

Mistake or miscommunication
● Section 20,21 and 22 of the Indian Contract Act covers the mistake.

● Mistakes can be bilateral or unilateral.

● S 20- Bilateral - When both parties have made a factual mistake in a contract, it
is said to be a bilateral mistake. Here, the whole contract is void. The whole
purpose and object of the contract are lost due to the mistake committed by
both parties.

● S 22- Unilateral - When one party makes a factual mistake in a contract, it is

called a unilateral mistake. A contract under unilateral mistake is also deemed
void.
Section 19
A party to a contract whose consent was caused by fraud or misrepresentation, may, if
he thinks fit, insist that the contract shall be performed, and that he shall be put in the
position in which he would have been if the representations made had been true.

Legality of object
The contract that is formed between the two parties must have a lawful object.
Without a lawful object, a contract is not valid at all. This helps in minimising
unlawful or illegal objectives.

Section 23 of the Indian Contract Act 1872 very clearly defines the acts which are
lawful or unlawful.

● If the law forbids it.

● If it is contradictory to the present law.

● Suppose it contains any injury to a person's property. The injury could be a

physical, mental, legal injury, or harmful to a person's reputation.

● If the act is immoral or unjust.

Void Agreement (Section 23 to 30)

Section 24
Agreements void, if considerations and objects unlawful in part —

If any part of a single consideration for one or more objects, or any one or any part of
any one of several considerations for a single object, is unlawful, the agreement is
void.

Illustration

A promises to superintend, on behalf of B, a legal manufacturer of Indigo, and illegal

traffic in other articles. B promises to pay A a salary of 10,000 rupees a year. The
agreement is void, the object of A‘s promise, and the consideration for B‘s promise,
being in part unlawful.
Section 25
Agreement without consideration void, unless it is in writing and registered, or is
a promise to compensate for something done, or is a promise to pay a debt
barred by limitation law—

An agreement made without consideration is void, unless—

(1) it is expressed in writing and registered under the law for the time being in force
for registration of documents, and is made on account of natural love and affection
between parties standing in a near relation to each other; or unless

(2) it is a promise to compensate, wholly or in part, a person who has already

voluntarily done something for the promisor, or something which the promisor was
legally compellable to do; or unless

(3) it is a promise, made in writing and signed by the person to be charged therewith,
or by his agent generally or specially authorised in that behalf, to pay wholly or in part
a debt of which the creditor might have enforced payment but for the law for the
limitation of suits.

In any of these cases, such an agreement is a contract.

Explanation 1.—Nothing in this section shall affect the validity, as between the donor
and donee, of any gift actually made.

Explanation 2.—An agreement to which the consent of the promisor is freely given is
not void merely because the consideration is inadequate; but the inadequacy of the
consideration may be taken into account by the Court in determining the question
whether the consent to the promisor was freely given.

Illustrations

(a) A promises, for no consideration, to give B Rs. 1,000. This is a void agreement.

(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his
promise to B into writing and registers it. This is a contract.

(c) A finds B‘s purse and gives it to him. B promises to give A Rs. 50. This is a
contract.

(d) A supports B‘s infant son. B promises to pay A‘s expenses in doing so. This is a
contract.

(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written
promise to pay B Rs. 500 on account of the debt. This is a contract.
(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A‘s consent to the agreement
was freely given. The agreement is a contract notwithstanding the inadequacy of the
consideration.

(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the
agreement was freely given.

The inadequacy of the consideration is a fact which the Court should take into account
in considering whether or not A‘s consent was freely given.

Section 26
Agreement in restraint of marriage void—

Every agreement in restraint of the marriage of any person, other than a minor, is
void.x

Section 27 :
Agreement in restraint of trade void—

Every agreement by which any one is restrained from exercising a lawful profession,
trade or business of any kind, is to that extent void.

Exception 1—Saving of agreement not to carry on business of which goodwill is

sold—One who sells the goodwill of a business may agree with the buyer to refrain
from carrying on a similar business, within specified local limits, so long as the buyer,
or any person deriving title to the goodwill from him, carries on a like business
therein:

Provided that such limits appear to the Court reasonable, regard being had to the
nature of the business.

Section 28
Agreements in restraint of legal proceedings void—

Every agreement,—

(a) by which any party thereto is restricted absolutely from enforcing his rights under
or in respect of any contract, by the usual legal proceedings in the ordinary tribunals,
or which limits the time within which he may thus enforce his rights, or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto
from any liability, under or in respect of any contract on the expiry of a specified
period so as to restrict any party from enforcing his rights,

is void to that extent.

Exception 1—Saving of contract to refer to arbitration dispute that may arise—

This section shall not render illegal a contract, by which two or more persons agree
that any dispute which may arise between them in respect of any subject or class of
subjects shall be referred to arbitration, and that only the amount awarded in such
arbitration shall be recoverable in respect of the dispute so referred.

Suits barred by such contracts.— When such a contract has been made, a suit may
be brought for its specific performance; and if a suit, other than for such specific
performance, or for the recovery of the amount so awarded, is brought by one party
to such contract against any other such party, in respect of any subject which they
have so agreed to refer, the existence of such contract shall be a bar to the suit.

Exception 2—Saving of contract to refer questions that have already arisen.—

Nor shall this section render illegal any contract in writing, by which two or more
persons agree to refer to arbitration any question between them which has already
arisen, or affect any provision of any law in force for the time being as to references to
arbitration.

Exception 3—Saving of a guarantee agreement of a bank or a financial

institution.—This section shall not render illegal a contract in writing by which any
bank or financial institution stipulate a term in a guarantee or any agreement making a
provision for guarantee for extinguishment of the rights or discharge of any party
thereto from any liability under or in respect of such guarantee or agreement on the
expiry of a specified period which is not less than one year from the date of occurring
or non-occurring of a specified event for extinguishment or discharge of such party
from the said liability.

Explanation.—(i) In Exception 3, the expression “bank” means—

(a) a “banking company” as defined in clause (c) of Section 5 of the Banking

Regulation Act, 1949 (10 of 1949);

(b) “a corresponding new bank” as defined in clause (da) of Section 5 of the Banking
Regulation Act, 1949 (10 of 1949);

(c) “State Bank of India” constituted under Section 3 of the State Bank of India Act,
1955 (23 of 1955);
(d) “a subsidiary bank” as defined in clause (k) of Section 2 of the State Bank of India
(Subsidiary Banks) Act, 1959 (38 of 1959);

(e) “a Regional Rural Bank” established under Section 3 of the Regional Rural Bank
Act, 1976 (21 of 1976);

(f) “a Co-operative Bank” as defined in clause (cci) of Section 5 of the Banking

Regulation Act, 1949 (10 of 1949);

(g) “a multi-State co-operative bank” as defined in clause (cciia) of Section 5 of the

Banking Regulation Act, 1949 (10 of 1949); and

(ii) In Exception 3, the expression “a financial institution” means any public financial
institution within the meaning of Section 4-A of the Companies Act, 1956 (1 of 1956).

Section 29
Agreements void for uncertainty—

Agreements, the meaning of which is not certain, or capable of being made certain,
are void.

Illustrations

(a) A agrees to sell to B “a hundred tons of oil”. There is nothing whatever to show
what kind of oil was intended. The agreement is void for uncertainty.

(b) A agrees to sell to B one hundred tons of oil of a specified description, known as
an article of commerce. There is no uncertainty here to make the agreement void.

(c) A, who is a dealer in coconut oil only, agrees to sell to B “one hundred tons of oil”.
The nature of A‘s trade affords an indication of the meaning of the words, and A has
entered into a contract for the sale of one hundred tons of coconut oil.

(d) A agrees to sell to B “all the grain in my granary at Ramnagar”. There is no

uncertainty here to make the agreement void.

(e) A agrees to sell to B “one thousand maunds of rice at a price to be fixed by C‘’. As
the price is capable of being made certain, there is no uncertainty here to make the
agreement void.

(f) A agrees to sell to B “my white horse for rupees five hundred or rupees one
thousand”. There is nothing to show which of the two prices was to be given. The
agreement is void.
Section 30
Agreements by way of wager, void—

Agreements by way of wager are void; and no suit shall be brought for recovering
anything alleged to be won on any wager, or entrusted to any person to abide by the
result of any game or other uncertain event on which any wager is made.

Exception in favour of certain prizes for horse racing.—This section shall not
deemed to render unlawful a subscription or contribution, or agreement to subscribe or
contribute, made or entered into for or towards any plate, prize or sum of money, of
the value or amount of five hundred rupees or upwards, to be awarded to the winner or
winners of any horse race.

Section 294-A of the Indian Penal Code not affected.—Nothing in this section shall
be deemed to legalise any transaction connected with horse-racing, to which the
provisions of Section 294-A of the Indian Penal Code (XLV of 1860) apply.

Differences Between
Coercion & Undue Influence
Coercion and Undue Influence are both manipulation and persuasion tactics that can
be used to create influence in personal, social or political contexts.

Coercion Undue Influence

Coercion refers to the use of physical force Undue influence is typically

or threats to make someone do something psychological or emotional in nature.
against their will.

Coercion can be physical, such as using Undue influence can take many
physical force to make someone do forms, such as emotional
something, or it can be psychological, such manipulation, persuasion, or
as using threats or intimidation to make psychological manipulation of trust
someone do something. or dependency.

Coercion is often considered a criminal act Undue influence is often considered a

when used for social or political civil and moral wrong and can result
manipulation. Coercion accounts for legal in a legal action for visible damages.
action in such cases.

Coercion is usually overt and can be easily Undue influence is often covert and
identified. Coercion typically leaves the subtle. It can be difficult to detect.
victim in a state of fear and distress Undue influence may not be
immediately. immediately recognized by the victim
themself.

Coercion can be used to make someone do Undue influence can be used to make
something out of fear, that they would not someone not do something they
do otherwise. would otherwise do.

Coercion can be a single event or a series of Undue influence is generally possible

events. over a prolonged period of time.

Coercion is generally exerted by one person Undue influence generally requires

over another. Coercion is often used by the involvement of two or more
strangers or criminals. parties. Undue influence is often used
by people in positions of trust or
authority.

Coercion is more likely to be seen as illegal. Undue influence is considered

morally wrong and often has more
personal consequences than legal
ones.

Coercion is often used in situations of Undue influence is used in ongoing

immediate danger. relationships where the dependent
individual is in an inferior position to
the manipulator.
Coercion may be directed at a specific act. Undue influence may be directed at a
person's overall behaviour or
decision-making process.

Fraud & Misrepresentation

Fraud Misrepresentation

Fraud is a deliberate Misrepresentation is a bona fide representation of

misstatement of a material misstatement believing it to be true which turns out to
fact. be untrue later on.

Fraud is done to deceive the Misrepresentation is not done to deceive the other
other party. party but in good faith.

Fraud is defined in Section Misrepresentation is defined in Section 18 of the

17 of the Indian Contract Indian Contract Act, 1872.
Act,1872.

In fraud, the aggrieved party In misrepresentation, the aggrieved party cannot

can claim damages for any claim damages for any loss sustained, but the contract
loss sustained. is voidable at the option of the aggrieved party.

In fraud, the party making In misrepresentation, the party making representation

representation knows the does not know the truth and believes his/her mis-
truth, statement to be true.

Void & Voidable Contract

Void Contract Voidable Contract

The type of contract which cannot be The contract in which one of the two
enforceable is known as void contract. parties has the option to enforce or
rescind it, is known as voidable
contract.

Section 2 (j) of the Indian Contract Act, 1872 Section 2 (i) of the Indian Contract
defines a void contract. Act, 1872 defines a voidable
contract.

The contract is valid, but subsequently The contract is valid, until the party
becomes invalid due to some reasons. whose consent is not free, revokes it.

Subsequent illegality or impossibility of any If the consent of the parties is not

act which is to be performed in the future. independent.

No rights are given to any party. Rights are given but only to the
aggrieved party.

Suit for damages is not given by any party to Damages can be claimed by the
another party for the non-performance. aggrieved party.

Valid Contract & Void Agreement

Valid Contract Void Agreements

A valid contract is defined as an agreement that A formal agreement that is

can be enforced by law. illegitimate and unenforceable
from the moment it is created.
The definition of a valid contract can be derived “Void Agreement” is defined in
from Section 10 of the Indian Contract Act, Section 2(g) of the Indian
1872. Contract Act, 1872.

A party can approach the court if aggravated. There is no legal remedy

provided to the parties if
aggravated.

All the essential elements should be there in the A void agreement is void ab
agreement. initio.

Eg: Suppose a person A, of age 21 with a sound Eg: An agreement between drug
mind, agrees to pay a sum of Rs. 10,0000 to a dealers and buyers is a void
person B, aged 23 with a sound mind too, for an agreement
antique chair.

Void Agreement & Void Contract

Void Agreement Void Contract

An agreement that is void ab initio i.e., at the A void contract is one that is valid
time of its creation is a void agreement. at the time of its creation but
becomes void due to supervening
circumstances.

It is neither enforceable nor does it create any A void contract is enforceable

legal consequences for the parties. until a superseding event or
circumstance renders it to be void.

A void agreement is void due to the absence of A void contract is one that
one or more necessary elements that result in a becomes void due to the
contract. impossibility of performance.
In the case of void ‘agreement’, there is no A remedy is available in law only
remedy available in law. Restitution or to the extent to restore any benefit
restoration is not granted in the case of void received by the party, on the
agreement, although in certain circumstances, grounds of equity.
restitution is permitted on equitable grounds.

The main cause of the agreement being void is The main cause of the annulment
due to deficiencies with respect to the of a contract is the change in the
agreement during the time of its creation. country’s law, supervening
impossibility, or inclusion of
unlawful objects.
 5. Law of Torts
Introduction
Tort Law is the branch of common law which deals with civil wrong, civil rights; its
infringement, remedies, damages and defences. Various categories of injuries such as
harm done to body, property, image (defamation), money, goods, documents etc. are
covered under this law from a civil perspective.

Tort Law made its way to India through English Common Law. The main aim of the
Law of Torts is the compensation of victims. Remedy under tort law is generally in
the form of unliquidated damages or specific performance.

Origin of Tort
The word tort originates from the French language. It is equivalent to the English
word “wrong” and Romanian law’s term “delict”. It is derived from the Medieval
Latin word “tortum” which means “wrong” or “injury” which itself was further
developed from the Old Latin word “torquere” which means “to twist”. The Latin
word “tortus” means wrong or twisted or crooked.

Definition of Tort
It is a breach of duty which amounts to a civil wrong. A tort arises when a person’s
duty towards others is affected, an individual who commits a tort is called a tortfeasor,
or a wrongdoer. And where there are multiple individuals involved, then they are
called joint tortfeasors. Their wrongdoing is called a tortious act and they can be sued
jointly or individually. Tort committed against a community or people at large, which
hampers the public interest is called a public tort.

Section 2(m) of the Limitation Act,1963, Addresses tort as being a civil wrong which
is not just exclusively a breach of contract or a breach of trust.

John Salmond

According to John Salmond, He addresses tort as being only a civil wrong which has
unliquidated damages (those damages for which there is no fixed amount) in the form
of remedy and which is not just exclusively the breach of contract or the breach of
trust or breach of merely fair and impartial obligation.

Richard Dien Winfield

According to Richard Dien Winfield, Tortious liability emerges from the breach of a
duty primarily fixed by the law, this duty is towards the other people generally and its
breach is redressable by an action for unliquidated damages.

Fraser

According to Fraser, A tort is an infringement of a right in rem of a private individual

giving a right of compensation at the suit of the injured party.

Objectives of Tort
1. To determine rights between the parties to a dispute.

2. To prevent the continuation or repetition of harm i.e. by giving orders of

injunction.

3. To protect certain rights of every individual recognized by law i.e. a person’s

reputation.

4. To restore one’s property to its rightful owner i.e. where the property is
wrongfully taken away from its rightful owner.

Essential Conditions of Tort

A tort defines a civil wrong, consisting of four essential elements: duty, wrongful act,
injury, and remedy. To pursue damages for a tort, all four essential conditions torts
must be proven. If any of these elements is missing, the tort cannot be established, and
damages cannot be awarded.

Existence of a Duty to Exercise Care

The law of torts imposes an obligation on every individual to exercise a reasonable
level of care when engaging in activities that could potentially cause harm to others.
To pursue a legal case, it is necessary to establish that the tortfeasor owed a duty of
care to the injured party and that this duty was breached. The duty of care is imposed
by law and does not require a direct relationship between the tortfeasor and the injured
party.

Wrongful Commission or Omission of an Act

For an act to be recognized as wrongful, it must be defined as such by law. Violating a
legal provision renders an act unlawful. It is important to note that a moral wrong does
not necessarily equate to a legal wrong. Merely being morally wrong is insufficient to
qualify as legal wrongdoing. An act is considered unlawful only if it contravenes the
law, regardless of its moral implications. Furthermore, wrongdoing must result in
actual harm or legal injury to another person.

The following cases exemplify this requirement:

Glasgow Corporation v. Taylor (1992)

In this case, a corporation failed to erect proper fencing to keep children away from a
poisonous tree. As a result, a child plucked and consumed fruits from the poisonous
tree and died. The corporation could be held liable for this omission.

General Cleaning Corporation Ltd v. Christmas (1953)

In this case, an employer failed to provide a safety belt for a safe system of work,
resulting in consequences arising from this omission.

Actual Harm or Legal Harm

For a tort claim to arise and for the tortfeasor to be held liable, the claimant must have
suffered actual pain or loss as a result of the wrongdoing, or there must have been a
violation of their legal rights, with or without resulting damage.

Two maxims, injuria sine damnum and damnum sine injuria, encompass the various
categories of harm and/or injury covered by this crucial element of a tort.

Injuria Sine Damnum

The maxim “injuria sine damnum” describes an injury without damage, which is
actionable under tort law. It occurs when a person experiences a legal injury without
actual loss, meaning their legal right has been infringed by another individual. It
signifies a violation of an absolute right without the need for actual harm.

Ashby v. White
An illustrative example of this maxim is the landmark case of Ashby v. White (1703)
92 ER 126, where Mr. Ashby, the plaintiff, was prevented from voting by Mr. White,
the constable. This rule is based on the ancient maxim “Ubi jus ibi remedium,”
meaning “where there is a right, there will be a remedy.”

The plaintiff was a qualified voter in a parliamentary election. The defendant, a

returning officer, wrongfully refused to accept the plaintiff’s vote. Although the
plaintiff suffered no damage since the candidate he wished to vote for had already
won the election, the defendants were still held liable. It was concluded that damage is
not limited to pecuniary loss, as injury implies damage. Therefore, when a person’s
rights are hindered, they are entitled to remedies.

Bhim Singh v. State of Jammu and Kashmir

In another case from India, Bhim Singh v. State of Jammu and Kashmir, the plaintiff,
who was a member of parliament (MP), was denied entry into the premises of the
Assembly election by a police constable, thereby infringing upon his legal rights.

Damnum Sine Injuria

This maxim is the opposite of the previous one. It refers to damage without injury. In
this case, the party experiences actual physical or moral loss, but there is no
infringement of their legal rights. It refers to an actual and substantial loss suffered by
a party without any violation of their legal rights. In such instances, the plaintiff has
no cause of action since no legal rights have been transgressed.

Gloucester Grammar School vs. Rival School Teacher

An example of damnum sine injuria is the case of Gloucester Grammar School, where
the defendant established a school in the same neighbourhood as the plaintiff’s school
and even lowered the fees. This was not considered a tort case because the plaintiff
suffered only a financial loss, and none of their legal rights were breached.

Legal Remedy
The law of torts provides specific legal remedies to injured parties when their rights
are violated. These remedies can include monetary compensation, restitution of
specific property, and court-ordered injunctions.

The Court assesses various factors of liability by applying tests such as directness and
foreseeability to determine the extent of the damage suffered and whether it is too
remote. Only after evaluating these factors will the Court provide relief to the
claimant.

Kinds of Tort
There are two types of torts: intentional tort and negligent tort. As the name suggests,
in intentional torts, the tortfeasor causes the injury or does the civil wrong
intentionally and in negligent torts the tortfeasor fails to act or omit certain act which
leads to breach of certain duty of care towards the affected or injured person, or the
one who has suffered a legal injury.
Tort of Negligence
According to Winfield and Jolowicz, negligence is the breach of a legal duty of care
by the defendant which results in undesired damage to the plaintiff.

In Blyth v. Birmingham WaterWorks Co, negligence was defined as the omission to

do something which a reasonable man would do or doing something which a prudent
or reasonable man would not do.

It can be characterised in three forms-

Nonfeasance: It means the act of failure to do something which a person should have
done. For example, failure to carry out the repairs of an old building when it should
have been done.

Misfeasance: It means the act of not doing an action properly when it should have
been done properly. For example, Doing the repairs of an old building but doing so by
using very poor quality materials creates a major probability of a collapse which
injures people.

Malfeasance: It means the act of doing something which should not have been done
in the first place itself. For example, using products that are not allowed and
combustible to carry out the repairs of an old building, therefore, converting the
building into a firetrap leading to an accident.

Essentials of negligence
To commit the tort of negligence, there are primarily 6 main essentials that are
required. An act will be categorised as negligence only if, all the conditions are
satisfied namely –

Duty Of Care
It is one of the essential conditions of negligence in order to make the person liable.

It means that every person owes a duty of care to another person while performing an
act. Although this duty exists in all acts, but in negligence, the duty is legal in nature
and cannot be illegal or unlawful and also cannot be of moral, ethical or religious
nature.

In the case of Stansbie vs Troman (1948), A decorator was engaged to carry out
decorations in a house. Soon after The decorator left the house without locking the
doors or informing anyone. During his absence, a thief entered the house and stole
some property the value of which the owner of the house claimed from the decorator.
It was held that the decorator was liable as he was negligent in leaving the house open
and failed his duty of care.

The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and the
plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is
not sufficient that the defendant owed a duty of care towards the plaintiff but it must
also be established which is usually determined by the judge.

In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down
from a tram car and while she was being helped in putting her basket on her back, a
motor-cyclist after passing the tram collided with a motor car at a distance of 15 yards
which was on the other side of the tram. The motorcyclist died instantly and the
plaintiff could not witness the accident or the dead body since the tram was standing
between her and the place where the accident occurred. She had only heard the sound
of the collision and once the b ody had been removed from the place of the accident,
she visited the place and saw some blood which was left on the road. As a reaction to
this incident, she suffered a nervous shock and gave birth to a stillborn child of 8
months because of which she sued the representatives of the deceased motorcyclist. It
was held that the deceased had no duty of care towards the litigant and therefore she
could not claim any damages from the deceased’s representatives.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we each
have a duty of care to our neighbour or someone we could reasonably expect to be
affected by our acts or omissions. It was held that, despite no contract existing
between the manufacturer and the person suffering the damage an action for
negligence could succeed since the plaintiff was successful in her claim that she was
entitled to a duty of care even though the defective good i.e. a bottle of ginger beer
with a snail in it was bought, not by herself, but by her friend.

Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but
he must also establish that the defendant breached his duty to the plaintiff. A
defendant breaches such a duty by failing to exercise reasonable care in fulfilling the
duty. In other words, the breach of a duty of care means that the person who

has an existing duty of care should act wisely and not omit or commit any act which
he has to do or not do as said in the case of Blyth v. Birmingham Waterworks Co,
(1856). In simple terms, it means non-observance of a standard of care.
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities
failed to maintain the compound wall of a post office in good condition on the
collapse of which the defendant sustained injuries. It was held that postal authorities
were liable since they had a duty to maintain the post office premises and due to their
breach of duty to do so, the collapse occurred. Hence they were liable to pay
compensation.

In the case of Municipal Corporation of Delhi v. Subhagwanti (AIR 1966)

A very old clock tower situated right in the middle of a crowded area of Chandni
Chowk suddenly collapsed thereby causing the death of many people. The clock tower
was 80 years old although the normal lifespan of the clock tower should have been 40-
45 years. The clock tower was under the control of The Municipal Corporation of
Delhi and they had a duty of care towards the citizens. By ignoring to repair the clock
tower, they had breached their duty of care toward the public and were thereby liable

Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the liability
to prove that the defendant’s violation of duty was the actual cause of the damages
incurred by him.

This is often called the “but-for” causation which means that, but for the defendant’s
actions, the plaintiff would not have incurred the damages.

For example, When a bus strikes a car, the bus driver’s actions are the actual cause of
the accident.

Proximate cause
Proximate cause means “legal cause,” or the cause that the law recognizes as the
primary cause of the injury. It may not be the first event that set in motion a sequence
of events that led to an injury, and it may not be the very last event before the injury
occurs. Instead, it is an action that produces foreseeable consequences without
intervention from anyone else. A defendant in a negligence case is only responsible
for those damages that the defendant could have foreseen through his actions.

In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while
trying to catch a train and was carrying a packed item with him. The employees of the
railway saw the man who was attempting to board the train and thought that he was
struggling to do so. An employee on the rail car attempted to pull him inside the train
while the other employee who was on the platform attempted to push him to board the
train. Due to the actions of the employees, the man dropped the package. Which had
contained fireworks, and exploded when it hit the rails. Due to the explosion, the
scales fell from the opposite end of the station and hit another passenger, Ms. Palsgraf,
who then sued the railway company. The court held that Ms. Palsgraf was not entitled
to damages because the relationship between the action of the employees and the
injuries caused to her were not direct enough. Any prudent person who was in the
position of the railway employee could not have been expected to know that the
package contained fireworks and that attempting to assist the man the railcar would
trigger the chain of events which lead to Ms. Palsgraf’s injuries.

Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It should
also be proved that the failure of the defendant to exercise reasonable care resulted in
damages to the plaintiff to whom the defendant owed a duty of care.

The harm may fall into the following classes:-

a.) Bodily harm

b.) Harm to the reputation

c.) Harm to property

d.) Financial Loss

e.) Mental Harm

When such damage is proved, the defendant is bound to compensate the plaintiff for
the damages occurred.d c

In the case of Joseph vs Dr. George Moonjely (1994) The Kerala high court awarded
damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a
24-year-old girl without following proper medical procedures and not even
administering local anaesthesia.

Intentional Tort
Intentional tort is one in which the tort is committed with full knowledge of the
outcome of the act along with the mental intention to cause such a tort. Having mala
fide intention is necessary to commit an Intentional Tort.

Intentional torts are –

1. Trespass to body - Assault & Battery

2. Trespass to Property
 3. Nuisance

4. Defamation

5. False Imprisonment

Battery
Battery is the legal term for hitting someone and comes from the verb to batter. It
includes touching someone in an offensive manner, such as in the case of sexual
battery. Battery covers a surprising range of activities, including sending projectiles
into someone else's body, as in firing a gun. Keep in mind that outside of the realm of
torts, battery is also the term used for a criminal charge for a similar act, often charged
alongside assault.

Example: if the defendant intends to commit battery by hitting the claimant in the
head but ends up killing him, this amounts to battery as his intentional act (intention to
commit harm) caused the death. The act of touching doesn't necessarily have to be
done with defendant's fist always, it could be anything touching plaintiff like throwing
hot water at someone.

Assault
An assault is an attempted battery or threatening injury before battery takes place. If
someone points a gun at you, causing fear of immediate danger, it could be an assault.
Similar to battery, there is a criminal counterpart to assault.

Example: if the defendant throws an iron ball at the claimant and misses his head as
the claimant moves his head away from the direction of the iron ball, this amounts to
assault.

False imprisonment
Generally, no one is allowed to restrict another person's movement against their will.
There are two major exceptions to this. Police typically have the authority to detain
people they reasonably suspect of crimes for a limited period. The other exception is
the "shopkeeper's privilege," which allows store owners to keep people they suspect of
shoplifting for a reasonable amount of time, until the arrival of the police..

Example: the defendant intentionally locks the claimant in the classroom without
having the legal authority to do so, and the claimant knows he is trapped.
Defamation
Defamation is when someone knowingly says something false about someone else,
and that lie causes harm. It includes both written (libellous) and spoken (slanderous)
words.

Example: “Tom Smith stole money from his employer.” If this is untrue and if making
the statement damages Tom's reputation or ability to work, it is defamation.

Trespass to property
The tort of trespass to land occurs when the defendant has the intent to physically
invade real property of the claimant and does invade physically without the claimant's
approval or consent.

Example: the defendant may litter the claimant's land, or may create a drainage outlet
below the land of the claimant.

Trespass to Chattels: When the defendant has the intent to use or intermeddle with a
chattel (moveable personal property), which was in the possession of the claimant and
when this actually happens and causes significant or perpetual dispossession,
deprivation of use, or damage as to condition, quality, or value of the chattel, or
causes some other harm to claimant's legally secured interest, it amounts to the
trespass to chattels.

Example: if the defendant paints the car of claimant that was parked on the side of the
street, without the consent of the claimant while the claimant was away, this amounts
to trespass to chattels.

Nuisance
The word Nuisance is derived from the French word ‘Nuire’ which means to annoy or
hurt. It is an unlawful interference with a person’s use or enjoyment of land. Under
normal circumstances, a person is entitled to the full and reasonable enjoyment and
use of this property tangible, intangible, movable or immovable, whatsoever. This
being his legal right cannot be taken away without lawful justification. Contrary to the
provided protection if someone unlawfully interferes with this entitlement of a person
he/she commits a tort of Nuisance.

As per the most accepted definition of Nuisance which is the one given by
Birmingham, Nuisance is an unlawful interference with a person’s use and enjoyment
of land, or of some right over, or in connection with it. Hence it is an injury or
inconvenience faced by a person in the use of his property because of another person
who unreasonably uses his own property in a way which negatively affects the former.
Stephens

“Nuisance is anything done to the hurt or annoyance of the lands, tenements of

another, and not amounting to trespass.

Jurist Salmond

“The wrong of Nuisance consists in causing or allowing without lawful justification

the escape of any deleterious thing from his land or from elsewhere into land in
possession of the plaintiff, e.g. water, fumes, smoke, gas, noise, heat, vibration,
electricity, disease, germs, animals

In law, nuisance has a more restrictive meaning than it has in an ordinary parlance. It
is not all inconveniences that will succeed in an action for nuisance. Minor
inconveniences which are usually as a result of normal human interaction in the
society are not actionable in law. The law always tries to strike a balance between the
conflicting interests of the plaintiff and the defendant in the society. So we can define
the tort of nuisance as an act which gives rise to unlawful, unwarranted or
unseasonable annoyance or discomfort to the plaintiff and which results in damage to
the property of the plaintiff or interfere with his use and enjoyment of his land.

Halsey V. Esso Petroleum Co. Ltd

In Halsey V. Esso Petroleum Co. Ltd, where the defendant’s factory emitted smokes,
oil, fumes and smell and polluted the environment along with harming the plaintiff’s
health because of his own sensitive health issue, the former were held liable to the
latter only for the emission of smoke, oil and fume and not for health hazard.

Rose v. Miles (1815) 4M & S.101

The defendant had wrongfully obstructed a public navigable creek which obstructed
the defendant from transporting his goods through the creek due to which he had to
transport his goods through land because of which he suffered extra cost in the
transportation. It was held that the act of the defendant had caused a public nuisance
as the plaintiff successfully proved that he had incurred loss over other members of
the society and that he had a right of action against the defendant.
Strict Liability
Definition and Principles of Strict Liability
Strict liability is a legal doctrine that holds a person or entity entirely responsible for
damages or injuries caused by their actions or products, regardless of their intent or
negligence. Under strict liability, the focus is on the consequences of the act rather
than the intention or fault of the defendant. It is based on the principle that certain
activities or products are inherently dangerous and pose a risk to others.

Rule in Rylands v Fletcher

The principle of strict liability evolved in the case of Rylands v Fletcher. In the year
1868, the principle of strict liability states that any person who keeps hazardous
substances on his premises will be held responsible if such substances escape the
premises and cause any damage. Going into the facts of the case, F had a mill on his
land, and to power the mill, F built a reservoir on his land. Due to some accident, the
water from the reservoir flooded the coal mines owned by R. Subsequently, R filed a
suit against F. The Court held that the defendant built the reservoir at his risk, and in
course of it, if any accident happens then the defendant will be liable for the accident
and escape of the material.

Going by the principle laid in this case, it can be said that if a person brings on his
land and keeps some dangerous thing, and such a thing is likely to cause some damage
if it escapes then such person will be answerable for the damage caused. The person
from whose property such a substance escaped will be held accountable even when he
hasn’t been negligent in keeping the substance in his premises. The liability is
imposed on him not because there is any negligence on his part, but the substance kept
on his premises is hazardous and dangerous. Based on this judicial pronouncement,
the concept of strict liability came into being. There are some essential conditions
which should be fulfilled to categorise a liability under the head of strict liability.

Essentials of Strict Liability

Dangerous Substances: The defendant will be held strictly liable only if a
“dangerous” substance escapes from his premises.

For the purpose of imposing strict liability, a dangerous substance can be defined as
any substance which will cause some mischief or harm if it escapes. Things like
explosives, toxic gases, electricity, etc. can be termed as dangerous things.
Escape: One more essential condition to make the defendant strictly liable is that the
material should escape from the premises and shouldn’t be within the reach of the
defendant after its escape.

For instance, the defendant has some poisonous plant on his property. Leaves from the
plant enter the property of the plaintiff and are eaten by his cattle, who as a result die.
The defendant will be liable for the loss. But on the other hand, if the cattle belonging
to the plaintiff enter the premises of the defendant and eat the poisonous leaves and
die, the defendant would not be liable. In the judicial pronouncement of Reads v.
Lyons & Co. it was held that if there is no escape, the defendant cannot be held liable.

Non-Natural Use: When the term “non-natural” is to be considered, it should be kept

in mind that there must be some special use which increases the danger to others.
Supply of cooking gas through the pipeline, electric wiring in a house, etc. is
considered to be the natural use of land. For instance, if the defendant lights up a fire
in his fireplace and a spark escapes and causes a fire, the defendant will not be held
liable as it was a natural use of the land.

These three conditions need to be satisfied simultaneously to constitute a strict

liability.

Key Elements of Strict Liability

Key elements of strict liability include:

1. Activity or Product: Strict liability typically applies to specific activities or

products that are considered inherently dangerous or risky.

2. Causation: The plaintiff must prove that the defendant's activity or product
caused the harm or damage suffered.

3. No Fault Requirement: Strict liability does not require the plaintiff to prove
negligence or intent on the part of the defendant.

4. Defences: Certain defences may be available to the defendant, such as showing

that the plaintiff's own negligence or unforeseeable circumstances contributed
to the harm.

Examples and Application of Strict Liability

Examples of situations where strict liability may apply include cases involving
dangerous animals, hazardous activities, or defective products. For instance, if a
person owns a wild animal that causes harm to another person, they may be held
strictly liable for the injuries inflicted by the animal.
Exception to the Rule of Strict Liability
There are certain exceptions to the rule of strict liability, which are-

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the defendant
wouldn’t be held liable, as the plaintiff himself came in contact with the dangerous
thing.

In the judicial pronouncement of Ponting v Noakes, the plaintiff’s horse died after it
entered the property of the defendant and ate some poisonous leaves. The Court held
that it was a wrongful intrusion, and the defendant was not to be held strictly liable for
such loss.

Act of God: The phrase “act of God” can be defined as an event which is beyond the
control of any human agency. Such acts happen exclusively due to natural reasons and
cannot be prevented even while exercising caution and foresight. The defendant
wouldn’t be liable for the loss if the dangerous substance escaped because of some
unforeseen and natural event which couldn’t have been controlled in any manner.

Act of the Third Party: The rule also doesn’t apply when the damage is caused due
to the act of a third party. The third party means that the person is neither the servant
of the defendant, nor the defendant has any contract with them or control over their
work. But where the acts of the third party can be foreseen, the defendant must take
due care. Otherwise, he will be held responsible.

For instance, in the case of Box v Jubb, where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant’s reservoir,
the Court held that the defendant wouldn’t be liable.

Consent of the Plaintiff: This exception follows the principle of volenti non fit
injuria.

For instance, if A and B are neighbours, and they share the same water source which
is situated on the land of A, and if the water escapes and causes damage to B, he can’t
claim damages, as A wouldn’t be liable for the damage.

Absolute Liability
Definition and Principles of Absolute Liability
Absolute liability is a legal doctrine that holds a person or entity strictly liable for
harm or damage caused by their actions, regardless of fault or negligence. Unlike
strict liability, absolute liability imposes liability regardless of whether the defendant
took reasonable precautions or exercised due diligence. Absolute liability is often
applied in cases involving hazardous substances or activities that pose a significant
risk to the public or the environment.

Rule in M.C Mehta Case

The rule of absolute liability, in simple words, can be defined as the rule of strict
liability minus the exceptions. In India, the rule of absolute liability evolved in the
case of MC Mehta v Union of India. This is one of the most landmark judgments
which relates to the concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from
industry. Due to the leakage, many people were affected. The Apex Court then
evolved the rule of absolute liability on the rule of strict liability and stated that the
defendant would be liable for the damage caused without considering the exceptions
to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently

dangerous or hazardous activity, and if any harm is caused to any person due to any
accident which occurred during carrying out such inherently dangerous and hazardous
activity, then the person who is carrying out such activity will be held absolutely
liable. The exception to the strict liability rule also wouldn’t be considered. The rule
laid down in the case of MC Mehta v UOI was also followed by the Supreme Court
while deciding the Bhopal Gas Tragedy case. To ensure that victims of such accidents
get quick relief through insurance, the Indian Legislature passed the Public Liability
Insurance Act in the year 1991.

Key Elements of Absolute Liability

Key elements of absolute liability include:

1. Activity or Substance: Absolute liability applies to activities or substances that

are inherently dangerous or have a high potential for harm.

2. No Fault Requirement: Absolute liability does not require proof of negligence,

intent, or fault on the part of the defendant.

3. Public Interest: Absolute liability is imposed to protect public interest, safety,

or the environment.

4. Defences: Limited defences may be available to the defendant, such as

demonstrating that the harm was caused by an act of God or an unforeseeable
event.
Examples and Application of Absolute Liability
Examples of situations where absolute liability may apply include cases involving the
use of hazardous chemicals, nuclear energy, or activities with high environmental
risks. For instance, in the context of a nuclear power plant, the operator may be held
absolutely liable for any harm or damage caused by a nuclear incident, regardless of
fault or negligence.

The Public Liability Insurance Act, 1991

This act was introduced with the aim of providing immediate relief to people who are
victims of accidents in which handling of hazardous substances is involved. The main
focus of the Act is to create a public liability insurance fund which can be used to
compensate the victims.

The Act states that any person who is carrying out inherently dangerous or hazardous
activities should have insurances and policies in place where he will be insured
against liability to provide compensation to the victims in case any accident takes
place, and some injury occurs. This liabilitwy is based on the principle of “no fault
liability” or in other words, the rule of strict liability and absolute liability. Inherently
dangerous or hazardous substances cover under its scope any mixture, preparation or
substance which because of its properties can cause serious harm to human beings,
animals, plants, property or the environment. If any substance is inherently dangerous
or hazardous due to its handling also, then also the absolute liability of the defendant
arises.

Strict Liability vs. Absolute Liability

The rule of strict liability and absolute liability can be seen as exceptions. A person is
made liable only when he is at fault. But the principle governing these two rules is that
a person can be made liable even without his fault. This is known as the principle of
“no fault liability.” Under these rules, the liable person may not have done the act, but
he’ll still be responsible for the damage caused due to the acts. In the case of strict
liability, there are some exceptions where the defendant wouldn’t be made liable. But
in the case of absolute liability, no exceptions are provided to the defendant. The
defendant will be made liable under the strict liability rule no matter what.

Criteria Strict Liability Absolute Liability

Definition Imposes legal responsibility Imposes legal responsibility on a
on a party for damages party for damages caused, regardless
caused, regardless of fault or of fault or negligence. Absolute
negligence, but with certain liability occurs when any kind of
exceptions. Strict liability organisation uses dangerous or
arises when the accused hazardous substances for profit-
person brings any dangerous making activity and in that duration,
substances into the any damage is being caused to any
organisation and due to the other party.
escape of that substance, any
harm to any other person is
caused.

Principles Strict Liability covers the Absolute Liability covers the

following principles: Non- following principles: Enterprise,
natural use of land, Hazardous activity, Escape not
Dangerous substance, necessary.
Escape.

Central Role Strict Liability undertakes the Absolute Liability undertakes the
person. enterprise.

Fault Does not require proof of Does not require proof of fault or
Requirement fault or negligence. negligence and imposes liability
regardless of fault or negligence.

Escape Escape of hazardous Escape of hazardous substances is

substances is necessary. not necessary.

Scope of Applies to certain inherently Applies to highly hazardous

Liability dangerous activities or activities or substances that have the
 products. potential to cause significant harm.

Burden of The claimant must prove that The claimant must prove that the
Proof the harm was caused by the harm was caused by the defendant's
defendant's actions or the actions or the defendant's liability-
defendant's liability- triggering activity or product.
triggering activity or product.

Exceptions Strict liability can be Absolute liability is generally not

mitigated or eliminated by subject to exceptions, except in
certain defences or some limited circumstances.
exceptions like the plaintiff's
own fault, mutual benefit, etc.

Defences Defences may include Defences may include proving that

proving that the claimant the claimant contributed to the harm,
contributed to the harm, assumption of risk, or act of a third
assumption of risk, or act of a party.
third party.

Application Typically applied in product Applied in cases involving activities

liability cases, hazardous or substances posing an
activities (such as keeping exceptionally high risk of harm,
dangerous animals), and such as handling hazardous
certain statutory offences. chemicals or engaging in inherently
dangerous activities.

Legal The liable party may be The liable party may be required to
Consequence required to compensate the compensate the claimant for
s claimant for damages caused. damages caused.

Scope The scope of strict liability is The scope of absolute liability is

narrower. broader.
 Rule Rylands V Fletcher. MC Mehta V Union of India
Established (Bhopal Gas Tragedy).
Through

Examples Product liability for defective Liability for transporting hazardous

goods, liability for keeping materials, liability for storing
dangerous animals. explosives.

Vicarious Liability
In India, Vicarious Liability in Tort refers to a legal concept in which an individual or
entity is held responsible for the tortious acts committed by another person. The
concept of vicarious liability in tort is based on the principle of “respondeat superior”
which means “let the master answer” in Latin. Maxim- “Qui facit per allium, facit per
se”

This principle is important as it provides a means of holding an employer accountable

for the acts of his/her employees, who may cause harm to others.

Under Indian law, vicarious liability in tort refers to a situation in which an employer
is held responsible for the tortious acts committed by his/her employees. The term
“tort” refers to any civil wrong that causes harm or injury to another person, and the
term “vicarious liability” refers to the legal responsibility that an employer has for the
actions of his/her employees.

For example, if an employee of a company causes injury to someone while performing

his/her duties, the company may be held liable for the employee’s actions, even if the
company did not directly cause the harm. The reason for this is that the employee was
acting within the scope of his/her employment, and the company has a legal obligation
to ensure that its employees act in a responsible manner.

Conditions for Vicarious Liability

In order for vicarious liability in tort to apply, certain conditions must be met. These
conditions include:
Employer-Employee or Principal-Agent Relationship
As mentioned earlier, vicarious liability in tort arises in specific relationships where
one party is held responsible for the tortious acts committed by another party. This
includes employer-employee or master-servant and principal-agent relationships.

It is important to note that the relationship must be a legal one, meaning that the
employee or agent must be working under a contract or agreement with the employer
or principal.

Tortious Act Committed Within the Scope of Employment or Agency

The tortious act committed by the employee or agent must have been committed
within the scope of their employment or agency. This means that the act must have
been done while the employee or agent was performing their duties or acting on behalf
of the employer or principal.

If the act was committed outside the scope of employment or agency, the employer or
principal may not be held liable.

Connection Between the Tortious Act and the Employment or Agency

There must be a connection between the tortious act and the employment or agency.
This means that the act must have been committed in furtherance of the employer’s or
principal’s business or interests.

For example, if an employee is tasked with making deliveries for a company and
causes an accident while driving a company vehicle, the employer may be held liable
because the accident occurred while the employee was performing duties related to the
employer’s business.

No Personal Motive on the Part of the Employee or Agent

The tortious act committed by the employee or agent must not have been done for
personal reasons or motives.

For example, if an employee commits a theft during work hours but the theft was not
related to the employer’s business, the employer may not be held liable.
 6. Transfer of Property Act, 1882
Introduction
The Transfer of Property Act, 1882, was promulgated embodying the principles of
English Common Law, namely equity, good conscience, and justice underscored by
the provisions of the Indian Contract Act, 1872, and came into force from July 1,
1882.

Property or ownership are synonymous with each other, and ownership interest is
automatically created when a right is vested.

Ownership has to be:

1. Indefinite in point of the user – The owner may use the property subject to
some restrictions without injuring the rights of other persons, but at no point in
time will it negate the ownership in the property even if the rights may be
curtailed.

2. Unrestricted in the point of disposition – The owner has an unfettered right to

dispose of the property. However, there are exceptions to this as minors (those
below the age of 18) can be owners but cannot alienate the property. Also, the
Government may acquire the property for specific purposes irrespective of the
property owner’s consent.

3. Unlimited in the point of duration – As long as the property in question exists,

the property rights are heritable. Again, the Government can, at any point,
acquire the property and terminate the owner’s rights.

The Transfer of Property Act covers transfers inter vivos, i.e., between two living
persons. A transfer is defined as an act by which living persons convey the property to
one or more living persons.

The transferee can get the transferor’s rights and nothing more, where the owner is the
transferor, and the transferee is the person or persons to whom the rights are
conveyed.

The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby the
definition of living persons was amended to include companies, associations, and
bodies of individuals, whether incorporated or not.
Property
In a general sense, Property consists of land, shares, buildings and debts due to
another person.

However, the term when used in the legal sense has a definite connotation. It is the
right to enjoy and to dispose of certain things in an absolute manner as one thinks it
fits.

Origin
The word “property” is derived from the Latin word proprietary and the French
equivalent properties, which means a thing owned. The concept of property and
ownership are very similar to each other. However, there is a fine line that
distinguishes the two terms. It will not be incorrect to state that humans have been
aware of their rights to possess what they rightfully own for long.

Definition
Eminent jurist Salmond while defining the term property, observed that the term
might be understood in one of the three senses mentioned below:

1. The term property includes all the legal rights of a person. That is to say that it
includes complete ownership of a man on material as well as incorporeal
things.

2. The term includes not a man’s personal rights, but only his proprietary rights.

3. The term includes the rights of ownership in material things such as building
etc.

According to another jurist, Bentham, the term property includes ownership of

material objects alone. He has, in a way, interpreted the term in a narrow sense.

According to Austin, Property denotes the greatest right of enjoyment known to the
law, including servitudes. The Property includes both proprietaries as well as the
personal rights of a man.

Types of Property
All Corporeal Property may either be movable or immovable in nature. The basis of
this kind of classification is the portability of the object.
Movable Property
The term movable property has been defined diversely in various Indian statutes.

The General Clauses Act, 1897, in Section 3(36), defines the term to include property
of every description, except immovable property.

The Registration Act, 1908, in Section 2(l)(9), provides an inclusive definition of

movable property. According to this, it is to include standing timber, growing crops
and grass, fruits on the trees, and juice in trees, along with the property of every
description other than immovable property.

The term movable property is also defined under Section 22 of the Indian Penal Code,
1860. It states the term is to include corporeal property of every description, provided
that the same is not affixed to the land. The main proposition to be understood here is
that the property must not be attached to the land. However, the same immovable
property might become movable as soon as it is severed from the earth.

Immovable Property
Generally speaking, the word immovable property connotes anything that a person
owns which cannot be moved from one position to another. It can be said that
anything which is affixed to land under someone’s ownership falls under the category
of immovable property. The immovable properties are entitled to be protected by legal
statutes and are liable to taxation. Such an immovable property has rights of
ownership attached to it.

The concept of immovable Property holds greater importance and has elaborately
been dealt with under Indian statutes.

The Transfer of Property Act, 1882

Section 3 of the Transfer of Property Act, 1882, states that immovable property does
not include standing timber, growing crops, or grass.

The General Clauses Act, 1897

The General Clauses Act, 1897 defines immovable property under Section 3 (26),
stating that the term shall include land, things affixed to earth or permanently fastened
to anything affixed to earth, and any benefits arising out of the land.
The Registration Act, 1908
Section 2(6) of the Registration Act, 1908 also provides for the definition of the term
immovable property. As per this Section, lands, buildings, hereditary allowances,
rights to ways, lights, ferries, fisheries, any profit that arises out of the land, and any
other thing that is attached to the earth, or something permanently fastened to anything
which is in turn attached to the earth, provided it shall not include standing timber,
growing crops, nor grass falls under the category of immovable property.

None of the above definitions is exhaustive. These definitions just denote what is to be
included or excluded from the purview of immovable property.

Thus, after clubbing the definitions provided under the above statutes, immovable
property can be defined as permanently affixed to the earth, like land, trees and other
substances that do not include standing timber, growing crops, or grass.

The following mentioned are judicially recognized as immovable Property:

1. Right of way

2. Right to collect the rent of immovable Property

3. Right of ferry

4. mortgagor’s right to redeem the mortgage

5. The interest of the mortgagee in immovable Property

6. Right of fishery

7. Right to collect lac from trees

On the other hand, the following are not judicially recognized as immovable Property:

1. Standing timber

2. Growing crops

3. Grass

4. Royalty

5. A decree of sale or sale of immovable property on a mortgage

6. Right of the purchaser to have land registered in the name

7. Right to recover maintenance allowance even though it is charged through

immovable Property
The above-mentioned lists are not exhaustive and are subject to judicial interpretations
from time to time.

Transfer of Property
A transfer refers to a conversion of a thing from one person to another person. A
property can be transferred from one person to another person by transferring rights,
or interest, or ownership, or possession the party can satisfy either or all the
ingredients.

The transfer of property can be made in the two ways:

1. Act of the Parties;

2. By Law.

Meaning (Section 5)
Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882.
It refers to an act done by a living person conveying property to one or more living
persons, or to himself and one or more living persons in the present or the future. In
this section “living person” includes a company or association or body of individuals,
whether incorporated or not.

What may be transferred (Section 6)

Section 6 specifically speaks about what may be transferred. Property of any kind may
be transferred, except as otherwise provided by this act or even by any other law for
time being in force.

a) Transfer of Spes Succession

The concept of Spes Succession can be explained with the help of an Example –

A family consists of father F and son S. F being the owner of the property has the
ownership with him during his lifetime and no one else including his son is allowed to
sell the property, without his consent. Now, if F dies intestate, S would inherit his
property and hence, here it can be said that S is the Heir Apparent. Here S’s
succession to the property in the future is a mere chance due to two main reasons.

1. Firstly, As F is the owner of the property he may sell it, dispose of it in any
manner he thinks or make a will in someone’s favour. Eventually, it will not be
left for S.
 2. Secondly, son S dies during the lifetime of his father.

Thus, if S during the lifetime of his father transfers the property without his father’s
consent then the transfer would be void ab initio and is also expressly prohibited by
the act.

In the case of Official Assignee, Madras v. Sampath Naidu, it was observed by the
court that a mortgage executed by an heir apparent is void even if he subsequently
acquired the property as an heir. Hence, from above it can be concluded that the
transfer of Spes Succession is void ab initio.

b) Right of Re-Entry
The right of re-entry means the right to resume the possession of the land which
would have been given to some other person for a certain period of time. And the
cases of re-entry are usually seen in the cases of leases, which would empower the
lessor to re-enter upon the demised premises if the rent is in arrear for a certain period
or if there is a breach of covenants in the lease.

In the case, Re Davis and Company, A purchased certain goods from B, which was on
a hire purchase agreement. This agreement contained a clause which was that after
purchase, A would take the property and would also pay the instalments on time, and
in case A fails to pay the instalments B would enter A’s premise and take possession
of the property. The important point to be noted here is that the right to Re-enter is a
personal right of B and the same cannot be transferred by him, and in any case, if he
transfers this right to entry, to his creditors or anyone, then the same would be void.

c) Easement
An easement can be quoted as a right which the owner or the occupier of certain land
has in his possession for the beneficial enjoyment of the said land, or it may even be to
do, or to continue to do something or to prevent something from being done. This very
concept of easement includes under its ambit an important principle of ‘profits a
prendre’, which actually means– A right to enjoy the benefits arising out of the land.

Example: Where A as an owner has the right of way over the way of the land of
another for purposes which are connected with the beneficial use of his own land then,
this can be termed as an easement. Similarly, in the case of Ganesh Prakash v. Khandu
Baksh, it was held that the right to dry clothes over the flat masonry and roofs of
shops is a right of easement.

It should also be noted that an easement cannot be transferred apart from the dominant
heritage to which by the nature of the right it is attached, and this was held in the case
of Sital v. Delanney.
d) Restricted Interests
This clause states that a person cannot transfer anything which is interest restricted in
its enjoyment to him. For example - Two brothers partition a property among
themselves and in addition give a right of pre-emption, which means one of them if at
all wants to sell the property should first offer it to the other brother, who would be
preferential in buying it. Here it should be known that these rights are personal rights
and cannot be transferred. And if any such transfers take place such a transfer would
be considered void. In the case of Shoilojanund v. Peary Charon, it was held that a
right to receive voluntary and uncertain offerings at worship are interest restricted to
personal enjoyment and hence, cannot be transferred.

The following kinds of interest can be held non-transferable:

1. Services Tenure

2. Religious Office

3. A right of Pre-emption

4. Emoluments which are attached to the priestly office. But it should, however,
be noted that the right to receive offerings which are made at a temple is
independent of the obligation to perform services which would involve
qualifications of personal nature, and such rights are transferable.

dd) Right to Future Maintenance

The subsection of maintenance, it has been established that a right to future
maintenance is solely for the personal benefit of the person to whom it has been
granted and therefore, this very right cannot be transferred further. Thus an example
can be quoted here regarding the rights of a woman to either receive maintenance
from her husband under a decree or award of the court. Or to receive a share from the
property on the demise of the husband or under a will is a personal right. This right
can neither be transferred nor can it be attached by a court’s decree. And this was held
in the case of Dhup Nath v. Ram Charit.

e) Mere right to sue

It was in the landmark case of Sethupathi v. Chidambaram, where it was held that a
mere right to sue is something which cannot be transferred. Here the word ‘mere’
itself means that the transferee has developed no interest than just a bare right to sue.
For Example- A contracts to buy goods from B On due date A fails to take delivery
and B sells the goods in the market at a loss of Rs.10000. B transfers the right to
recover the damages to C. The transfer is invalid.

f) Public office
It should be noted in the first place that a public officer cannot be transferred. In the
same fashion, even the salary of the police officer cannot be transferred whether
before or after it becomes payable. The word public officer is meant to be someone
who has been appointed to discharge a public duty, and in turn, receive a monetary
return of it which is in the form of the salary. Here, as the salary becomes something
which is given in return of the personal service of a person, it can neither be
transferred or attachable.

In the case of Ananthayya v. Subba Rao, it was held that where there is an agreement
between two people and according to which a person agreed to pay a certain
proportion of his income to his brother in consideration of his having been maintained
by the latter, now in such cases this provision will not be applicable, which was held
by the court.

g) Pensions
Pension is like a salary, it is a sum of money periodically payable by the government
which can be to an ex-serviceman or to a person who has ceased to be in employment.
In the case of Saundariya Bai v. Union of India it was held that pension is non-
transferable, so long as it is unpaid and in the hands of the government. Another
important aspect which should be taken into consideration is that pension is different
from bonus and rewards, and also, on the contrary, these are transferable.

h) Nature of interest
No transfer can be made insofar as it is opposed to the nature of the interest affected
thereby. Thus, the things which are dedicated to public or religious uses or service
inam, cannot be transferred.

Transfer for Unlawful object or Consideration – Any transfer which is for an unlawful
object or consideration is not permissible under this section. And it is also in
consonance with section 23 of the Indian Contract Act, which provides that
consideration or object is unlawful if

1. Is Fraudulent

2. It is opposed to public policy

 3. It is forbidden by law.

4. Is of such a nature that it defeats the provisions of any law.

Transfer of Person Legally Disqualified– A transfer to a person to be legally

disqualified to be a transferee is not permitted. Under section 7 of the said act, the
transferee is required to be competent to the contract and also should not have been
disqualified legally.

i) Statutory prohibitions on the transfer of Interest

This section makes it clear that a tenant having an un-transferable right of occupancy
cannot in any way transfer his interest, and this was held in the case of Shanti Prasad
v. Bachchi Devi. But at the same time, this clause even contains an exception to the
general rule which says that all tenancies or leaseholds are transferable. It gives effect
to different enactments whereby it says certain categories of leasehold interests or
tenancies are made non-transferrable. Similarly, where a farmer of an estate, in respect
of which default has been made in paying revenue, cannot assign his interest in the
holding.

Thus, section 6 containing clauses (a) to (i) specifically mention that certain things
cannot be transferred. Such a transfer if undertaken would be invalid in the eyes of the
law in India.

Persons competent to transfer (Section 7)

Section 7 enumerates the concept of competency of persons who may be allowed to
transfer property. According to this section, a person is allowed to transfer property if
he satisfies two conditions. The first condition is that the person must be competent to
enter into contracts with other persons. The second condition is that the person who is
willing to transfer property must have title to the property or authority to transfer it if
he is not the real owner of the property.

Thus, every person competent to contract and entitled to transferable property, or

authorised to dispose of transferable property not his own, is competent to transfer
such property either wholly or in part and either absolutely or conditionally, in the
circumstances, to the extent and in the manner, allowed and prescribed by any law for
the time being in force.

Authority may be obtained by way of agent-principal relationship, by way of an

express declaration of the owner of the property (through the instrument of power of
attorney) or by way of order of court. For example, an insolvency professional in case
of bankruptcy proceedings has the authority to dispose of the property of the insolvent
following the process of law.

An important point to be noted in this regard is the conditions mentioned in section 11

of the Indian Contract Act, which specifies the category of persons who may be
competent to transfer. In the section, it is stated that the person must have attained
majority, he must be of sound mind, and he must not be disqualified to enter into
contracts by any other law applicable in India.

Modes of Transfer
The Primary condition for transfer of property is the delivery of possession of th
property.

In the case of immovable property, the law requires that the transfer be made in
writing as well as registered under the provisos of the Registration Act.

Sale of immovable property:

There is a transfer of ownership from the buyer to the seller in exchange for the price.
Delivery of tangible property from the seller to the buyer.

Sale of immovable property is done through a deed of conveyance. The ownership

transfers from the seller to the buyer only when the said deed is executed, which
should be duly stamped and registered as required by law.

Mortgage of immovable property:

Mortgage is the transfer of an interest in specific immovable property in order to
secure the payment of money advanced or to be advanced by a way of loan, an
existing or future debt. The transferor is called the mortgagor and the transferee is
called the mortgagee. The principal money and the interest money for which the
payment is secured(by the said mortgage) for the time being is known as the mortgage
money and the deed made to execute such a transfer is known as the mortgage deed.

Leases of immovable property:

The possession of the property is being transferred from one person to another person
for a fixed price in this scenario there is no transfer of ownership.
Exchange of immovable property:
When two persons mutually decide to transfer immovable property it would be
referred to as an exchange of property.

Gift of immovable property:

According to TOPA, gift refers to a transfer of movable or immovable property
violently or without the consideration, by one person that is done, to donor transfer is
accepted by and on behalf of the done.

Actionable claim:
An actionable claim is a legal right that can be enforced in court. It's a right to demand
payment or delivery of goods or services from someone who owes you something.
Some examples of actionable claims include Debt claims, Rent claims, Salary claims,
Dividend claims, and Insurance claims.

According to Section 3 of the TPA, an actionable claim means A claim to any debt
that is not secured by any of the following:

1. Mortgage of movable or immovable property

2. Pledge of movable property

3. A beneficial interest in movable property that is not in the possession of the

claimant, either actually or constructively.

What are the differences between sale, mortgage,

exchange and lease
Sale, exchange, mortgage, and lease are different modes of transfer of property. The
similarity among all of them is that in all these transactions, the property or interest in
the property is transferred from one party to the other. On the contrary, they differ
from each other on several grounds. The following table illuminates the differences
between sale, mortgage, exchange, and lease:

Basis Sale Mortgage Lease Exchange

Definition Sale refers to Mortgage Lease can be Exchange can

the transfer of refers to the defined as a be defined as
 ownership in transfer of an transfer of rights the mutual
property in interest in in a property for transfer of
exchange for immovable the purpose of ownership
money. property as a enjoyment or from one
security in benefits attached person to the
exchange for to it. It is for a other. In
some loan certain time simple terms,
granted or an period and works it is known as
existing or on the basis of the ‘barter’.
future debt or terms agreed
liability. between the
parties.

The relevant It is defined It is defined It is defined under It is defined

provisions under Section under Section Section 105. under Section
under the 54. 58 118.
Transfer of
Property Act

Parties The transferor The transferor The transferor and Since the
and transferee and transferee transferee are property of
are commonly are commonly commonly known one party is
known as known as as ‘lessor’ and ‘changed’
seller/vendor ‘mortgagor’ ‘lessee’ with the
and and respectively. property of
buyer/vendee ‘mortgagee’ another party,
respectively. respectively. they are both
transferors
and
transferees at
the same time.

Consideratio Sale is A mortgage There might be There is no

n considered a does not involvement of involvement
valid sale require any money of money
when one of consideration. consideration in a consideration
the parties It gives rise to lease, however, a in the transfer
 pays or the interest in lease agreement is via exchange.
promises to specific valid even without
pay some property of the consideration, for
consideration. mortgagor example when a
when he/she share of crops is
owes agreed to be
something to transferred by the
the mortgagee. lessee to the
lessor. It
completely
depends upon the
terms of the
agreement.

Mode of Sale is This mode of A lease deed The mode of

transfer affected via a transfer is contains the terms transfer in
sale deed. completed with and conditions case of
a mortgage with respect to the exchange is
deed. lease. the same as
that of sale
under Section
54, therefore,
it is effected
with a sale
deed.

Doctrines
Doctrine of Election
The doctrine of election is stated in transfer of property act 1882 in section 35 and
within 180-190 of the Indian succession act. Election means a choice between two
alternative or conflicting rights. Granting two rights in such a way that one is higher
than the other, you can choose either of them. You cannot have both. The applicant
cannot use both, the recipient must choose between two inconsistencies or alternative
rights. Basically, it means that the person taking the benefit should also bear the
burden. (C. Beepathuma V. Viduri Shankar Narayana Kadambolithya AIR 1965 SC
241).
It is an important part of the transfer of property act 1882 to resolve property conflicts
among people. This principle was derived from the equity principle where a person
cannot retain all the benefits of a transaction thus, he cannot keep the property and still
get benefits. They have to elect for or against the instrument. The doctrine of election
is a general legal rule that requires the recipient to choose whether the heir wants to
own someone else’s property and decide whether to preserve the property or accept
his intentions. (Shukla S. N transfer of property act 24 the edition edited by Dp
Ghousal reprint 2007).

Example: A promises to give B, 50 lakh but only on one condition that he will sell his
house to C, now B here has to make the election on what to do? If he takes A’s offer
he will have to give his house to C. On the other hand if he doesn’t, he won’t get 50
lakh also hence he has to make an election on what to choose.

Maitland’s describes its doctrine of election as (Maitland’s lecture on equity)

● Adopt all the contents of that instrument.

● According to all its provisions.

● Cede all rights that are inconsonant.

Doctrine of Lis Pendens

In general parlance, lis pendens refers to a pending legal action or a formal notice of a
legal action. The doctrine of Lis Pendens has been inscribed in the Indian Legislative
regime by way of Section 52 of The Transfer of Property Act, 1882. The section states
that

“Transfer of property pending suit relating thereto.— During the pendency in any
Court having authority within the limits of India excluding the State of Jammu and
Kashmir or established beyond such limits by the Central Government of any suit or
proceedings which is not collusive and in which any right to immovable property is
directly and specifically in question, the property cannot be transferred or otherwise
dealt with by any party to the suit or proceeding so as to affect the rights of any other
party thereto under any decree or order which may be made therein, except under the
authority of the Court and on such terms as it may impose.

Explanation.—For the purposes of this section, the pendency of a suit or proceeding

shall be deemed to commence from the date of the presentation of the plaint or the
institution of the proceeding in a Court of competent jurisdiction, and to continue until
the suit or proceeding has been disposed of by a final decree or order and complete
satisfaction or discharge of such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of limitation prescribed for the
execution thereof by any law for the time being in force”

The major idea lying behind Section 52 is that in a suit, which is still pending in terms
of its determination, the status quo should be maintained and therefore it should
remain unaffected by the act of any of the parties to the suit. It makes it expressly
clear that in a case where the dispute between any of the parties is with regard to the
right of any immovable property, such property cannot be transferred by any of the
parties to the suit which as a result may affect the rights of the other party involved in
the dispute. This principle does not get eliminated after the dismissal of the suit. After
the dismissal of the suit and before filling of the appeal, the ‘lis’ continues to exist and
hence the defendant can be prevented from transferring the property to the prejudice
of the plaintiff. The explanation to the said section makes it clear that the lis shall be
deemed to have commenced from the date when the plaint shall be presented in the
court and shall continue to exist till the time such suit or proceeding has been decided
and a final order or decree has been obtained accompanied with complete satisfaction
or discharge of such degree or order.
 7. Fundamental Rights, Duties and
Directive Principles of State Policy
Introduction
The Indian Constitution, 1950 contains certain provisions which guarantee the basic
human rights of all the citizens of India. There are six Fundamental Rights and they
are immune from any kind of discrimination based on religion, race, gender, etc.
These rights can be invoked by individuals if there is any violation of them.
Fundamental Rights are included in Part-III of the Indian Constitution, it is also
known as the ‘Magna Carta’ of the Indian Constitution. Through this article, we will
find out more about the fundamental rights enshrined in the Indian Constitution.

Salient features of Fundamental Rights

The following are a few features of the Fundamental Rights enshrined in the
Constitution of India –

1. The Indian Constitution guarantees and protects fundamental rights.

2. The Parliament has the power and authority to restrict the fundamental rights
on reasonable grounds, however, such restrictions can only be made for a fixed
period of time. The grounds based on which the fundamental rights are
restricted by the parliament will be reviewed by the judiciary for reasonability.
Therefore, fundamental rights are neither absolute nor sacrosanct.

3. Fundamental Rights can be suspended in the case of national emergencies

however, the rights guaranteed under Articles 20 and 21 will still be applicable.
In the case of military rule, fundamental rights can be restricted in any area
within the Indian territory.

4. The Constitution of India enables an individual to move directly to the

Supreme Court of India for the enforcement of their fundamental right in case
they are violated or restricted. The fundamental rights are thus justiciable.

Importance of Fundamental Rights

Fundamental rights act as the foundation that upholds the democratic system and
secularism in India. They establish the essential conditions for an individual’s material
and moral protection ensuring social justice and equality. They also defend the rights
of minorities and other weaker sections of society. Fundamental rights also ensure
individual liberty. These rights establish the rule of law thereby keeping a check on
the absoluteness of the government’s authority.

Amendability of Fundamental Rights

The Supreme Court in the case of Kesavananda Bharati, (1974) that the Parliament
can amend any part of the constitution including all the fundamental rights subject to
the ‘Doctrine of Basic Structure’ of the Constitution.

The Supreme Court has neither specifically defined as to what entails the basic
structure nor did it mention any exhaustive list regarding the contents of the basic
structure of the Constitution. The Apex Court however stated that only additions can
be made to the basic structure and no deletions will be allowed to be made. The
Supreme Court in a catena of judgements has held that the following provisions are a
part of the basic structure of the Constitution –

1. Sovereignty of India

2. Democracy

3. Secularism

4. Republic

5. Free and fair elections

6. Judicial review, etc.

Schedule of Fundamental Rights

There are six fundamental rights enshrined in the Indian Constitution, they are as
follows –

Right to Equality (Article 14–18)

Right to Freedom (Article 19–22)

Right against Exploitation (Article 23–24)

Right to Freedom of Religion (Article 25–28)

Cultural and Educational Rights (Article 29–30)

Right to Constitutional Remedies (Article 32)

It is pertinent to note that the right to property was one of the fundamental rights in the
Constitution. However, the right to property was extracted from the schedule of
fundamental rights by the 44th Constitutional Amendment Act, 1978. Being under the
scope of fundamental rights, the right to property was acting as an obstacle in
achieving the goal of property distribution, equality and socialism. Thus, at present,
the right to property is a legal right under Article 300A and not a fundamental right.

Fundamental Rights
Right to Equality
The following articles of the Constitution deal with the fundamental Right to Equality.

Article 14 – Equality before the law

Article 14 considers all individuals the same in the eyes of the law.

This Article states that all citizens of India must be treated equally before the law.

The said Article further states that the law protects everybody equally.

Under similar circumstances, the law must treat people in the same manner.

Article 15 – Prohibition of discrimination

This provision of the Indian Constitution prohibits discrimination of any kind. Based
on the grounds of religion, race, place of birth, caste, gender, if any citizen is
subjected to any disability, restriction, liability or condition with regard to –

1. Public places’ access;

2. Use of public properties such as tanks, ghats, wells, etc that are maintained by
the state or that are intended for the use of general public;

The aforementioned Article also states that special provisions can be created for
women, children and the backward classes notwithstanding this Article.

Article 16 – Equal opportunity in case of public employment

This Constitutional provision provides equal employment opportunities in State
Service for all citizens.

In the case of public employment, no citizen must be discriminated against or

appointed based on the grounds of religion, caste, race, gender, place of birth,
residence or descent.
Exceptions to the said Article can be made for providing special provisions for the
backward classes.

Article 17 – Abolition of untouchability

The aforesaid article strictly prohibits the practice of untouchability.

By virtue of this article, untouchability has been abolished in all forms.

In case any disability or dispute arises due to untouchability then it is considered an

offence.

Article 18 – Abolition of titles

The said Article abolishes titles. It states that the State shall not confer any titles.
However, those titles which are academic or military in nature shall be allowed.

The said article further prohibits the citizens of India from accepting any kind of titles
from a foreign country. The titles that were awarded by the then British government
such as Rai Bahadur, Khan Bahadur are also abolished by virtue of this article.

Awards such as Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and
military honours like Ashok Chakra, Param Vir Chakra shall not be considered under
this category.

Right to Freedom
The following articles of the Constitution deal with the fundamental Right to Freedom

Article 19
Article 19 guarantees the following six freedoms. They are as follows –

Article 19(1)(a) – Freedom of speech and expression

This provision guarantees freedom of speech and expression to every citizen of India.
However, the law may impose restrictions on the scope of this freedom considering
the interests of the integrity, security and sovereignty of the country. The exceptions
further include- friendly relations with foreign nations, maintaining public order,
regarding the incitement to an offence, defamation or contempt of court.
Article 19(1)(b) – Freedom to assemble
This provision guarantees each individual the freedom to assemble peacefully without
arms. However, reasonable restrictions may be imposed considering the interests of
the sovereignty and integrity of the country and to maintain public order.

Article 19(1)(c) – Freedom to form associations or unions or

cooperative societies
This provision allows the citizens of India to form associations, unions or cooperative
societies but with certain exceptions considering the integrity and security of the
country and the maintenance of the public order.

Article 19(1)(d) – Freedom to move freely

This provision states that the citizens of India can move freely throughout the territory
of India. However, this freedom may be restricted on the grounds of security, public
order or for safeguarding the interests of the Scheduled Tribes.

Article 19(1)(e) – Freedom of residence

This provision states that all the citizens of India have the right to reside in any part of
the country. However, this freedom may be restricted on the grounds of security,
public order or for safeguarding the interests of the Scheduled Tribes.

Article 19(1)(g) – Freedom of profession

This provision states that all citizens have the right to carry on any trade or profession
or occupation, provided that such trade or profession or occupation is not illegal or
immoral. Also, the law does not prohibit the State from making laws related to
technical or professional qualifications that are required for practising the occupation
or trade.

Article 20 – Protection of citizens in case of conviction for offences

This provision deals with the protection of citizens in respect of conviction for
offences. It mentions three kinds of protections to the individual against the State, they
are retrospective criminal legislation, double jeopardy and prohibition against self-
incrimination.

Article 21 – Right to Life

This provision states that no individual must be deprived of his life and personal
liberty by the State except as per the procedure laid down by law. Right to life does
not mean merely living, it states that an individual must lead a dignified life. The said
article has a very wide scope and its interpretation has been moulded continuously
over the decades.

Article 21A – Free education for children of 6-14 years of age

This provision was inserted in the Constitution by the 86th Constitutional Amendment
Act in 2002. It mentions that the State must provide free and compulsory education to
all children between the ages of 6 and 14.

Article 22 – Protection against arrest and detention in certain cases

This provision is extended to both citizens and non-citizens. It provides certain
procedural safeguards to people in case of an arrest. It is pertinent to note that this
provision is not a fundamental right against detention and arrest. This right aims to
prevent arbitrary arrests and detention. This provision does not include the people
arrested under preventive detention laws and enemy aliens. This article further
provides the following –

Article 22(1)
This provision states that any individual who is in custody has to be informed as to
why they have been arrested. Also, they must not be denied the right to consult a
lawyer.

Article 22(2)
This provision states that the arrested individual should be produced before a judicial
magistrate within 24 hours of their arrest. This provision further states that no
individual who has been arrested can be held in custody for more than the period fixed
by the judicial magistrate.

Right against Exploitation

The following articles of the Constitution deal with the fundamental Right against
Exploitation.

Article 23 – Prohibition of trafficking of human beings and forced

labour
This provision is further divided into the following –
Article 23(1)
Human trafficking and ‘begar’ and other such forms of forced labour are prohibited by
virtue of this provision and any kind of violation of this provision shall be a
punishable offence under the law.

Article 23(2)
Nothing in this article shall prevent the state from imposing compulsory service for
public purposes, and in imposing such service the state shall not make any
discrimination based on the grounds of religion, race, caste or class or any of them.

This provision not only protects citizens from the State but also from private citizens.
Certain laws were passed by the Parliament with regard to this provision, they are-
Bonded Labour System (Abolition) Act, 1976 and Suppression of Immoral Traffic in
Women and Girls Act, 1956.

Article 24 – Prohibition of employment of children in factories, etc.

This provision states that no child below the age of fourteen years must be employed
to work in any factory or mine or engaged in any other such hazardous employment.
This provision prohibits the employment of children below the age of 14 in any
hazardous industry or factories or mines irrespective of any exceptions. But the
employment of children in non-hazardous work is legally allowed. Certain laws were
passed by the Parliament with regard to this provision, they are – the Factories Act,
1948, The Mines Act of 1952, The Child Labour (Prohibition and Regulation) Act,
1986, Child Labour (Prohibition & Regulation) Amendment Act, 2016, etc.

Right to Freedom of Religion

The following articles of the Constitution deal with the fundamental Right to Freedom
of Religion.

Article 25 – Freedom of conscience and free profession, practise, and

propagation of religion
This provision guarantees the freedom of conscience, the freedom to profess, practise,
and propagate one’s religion to all citizens. However, the said freedoms are subject to
public order, health, and morality. This article further mentions that the State can
make laws to regulate or restrict financial, economic, political or other secular
activities relating to religious practice. It further allows the social welfare and reform
or opening of Hindu religious institutions of a public nature to all sections and classes
of Hindus.
Article 26 – Freedom to manage religious affairs
This provision states that subject to morality, health, and public order, every religious
denomination has the following rights –

1. The right to form and maintain institutions for religious and charitable intents.

2. The right to manage its own affairs in the matter of religion.

3. The right to acquire immovable and movable property.

4. The right to administer such property according to the law.

Article 27 – Freedom as to payment of taxes for promotion of any

particular religion
As per this provision, no taxes shall be imposed on such proceeds which are directly
used for the promotion and/or maintenance of any particular religion/religious
denomination.

Article 28 – Freedom as to attendance at religious instruction or

religious worship in certain educational institutions
This provision enables the establishment of educational institutions that are
maintained by religious groups to disseminate religious instruction.

Cultural and Educational Rights

The following articles of the Constitution deal with the fundamental Cultural and
Educational Rights

Article 29 – Protection of Interests of Minorities

This provision of the Constitution aims to protect the interests of minority groups.

Article 29(1)
This provision states that any section of the citizens residing in India having a distinct
culture, language, or script, have the right to conserve their culture, language and
script.
Article 29(2)
This provision mentions that the state must not deny admission into educational
institutes maintained by it or those that receive aid from it to any person based on the
grounds of race, religion, caste, language, or any of them.

Article 30 – Right of Minorities to Establish and Administer

Educational Institutions
This right is provided to minorities to form and govern their own educational
institutions. This is why the said provision is also known as the ‘Charter of Education
Rights’.

Article 30(1)
This provision states that all religious and linguistic minorities have the right to
establish and administer educational institutions of their choice.

Article 30(2)
This provision provides that the state, when granting aid to educational institutions,
shall not discriminate against any educational institution based on the reason that it is
under the management of a minority, whether based on religion or language.

Right to Constitutional Remedies

The following article of the Constitution deals with the fundamental Right to
Constitutional Remedies

Article 32 – Right to Constitutional Remedies

The Constitution guarantees certain remedies if the fundamental rights of the citizens
are violated. The State does not have the power or authority to infringe upon or curb
the right of any individual. In case these rights are violated, the aggrieved individual
can approach the courts. They can even directly approach the Supreme Court of India
which can issue writs for the enforcement of fundamental rights. There are five kinds
of writs that can be issued by the court, they are –

Habeas Corpus
The term ‘Habeas Corpus’ means “to have the body of”. As per this writ, the court has
the authority to call upon any person who is being detained to assess the legality of
their detention.
Certiorari
The term ‘Certiorari’ means “to be certified”. By the virtue of this writ, a higher court
reviews a case that has been tried in a lower court. It is basically employed to seek
judicial review of a decision given by a court or a government authority.

Prohibition
The writ of ‘Prohibition’ is issued by a court to restrict or prohibit the lower courts,
tribunals and other such quasi-judicial authorities from acting beyond their legal
authority. It is employed to check inactivity whereas the writ of Mandamus checks
activity.

Mandamus
The term ‘Mandamus’ means “We command”. This writ is employed by the court to
direct a public official who has failed or refused to do his duty, to resume his work.
The writ of Mandamus is also issued against a public body, an inferior court, a
corporation, a tribunal, or a government.

Quo Warranto
The term ‘Quo Warranto’ means “By what authority or warrant”. The Supreme Court
or high courts employ this writ to avoid illegal usurpation of a public office by an
individual. The writ of Quo Warranto authorises the court to examine the legality of a
person’s claim to a public office.

Restriction on the exercise of Fundamental Rights

Article 19(2) to (6) provides that the State may make law for imposing reasonable
restrictions in the interests of 1) the sovereignty and integrity of India, 2) the security
of the State, 3) friendly relations with foreign States, 4) public order, and 5) decency
or morality.

Restriction on freedom of speech and expression

While it is necessary to maintain and preserve freedom of speech and expression in a
democracy, it is also necessary to place some curbs on this freedom for the
maintenance of social order. One's right to freedom of speech cannot interfere with
another's right to silence. While the Supreme Court has recognised the rights of the
citizens to use loudspeakers to propagate their views, at the same time it has
depreciated the practice of noise pollution. Reasonable restrictions have been
imposed. Similarly, while the movie maker has a right to make a movie, it is subject to
the Censorship Board's approval. While the media is free to report news, it cannot
conduct a media trial. It is the duty of the media to respect an individual's fundamental
right to privacy and to maintain the dignity of courts so that people's faith in the
administration of justice is not diminished. Liability of a free expression cannot be
equated or confused with a licence to make unfounded and irresponsible allegations
against the judiciary

Restriction on freedom of assembly

The State can make any law imposing reasonable restrictions on the exercise of this
right in the interests of public order, and sovereignty and integrity of India. For
example, the Indian Penal Code provides when an assembly becomes unlawful, i.e. an
assembly of five or more persons if the common object of the persons composing the
assembly is to commit any mischief or criminal trespass, etc. Under CrPC, a
Magistrate is empowered to restrain an assembly, meeting or procession if there is a
risk of obstruction, annoyance or injury to any person lawfully employed or danger to
human life, health or safety or a disturbance of the public tranquillity or a riot or any
affray. We have witnessed the COVID-19 restrictions on assembly under the Disaster
Management Act. Freedom of assembly is not available to hold meetings in
government premises like railway stations.

Restriction on freedom to form association

Article 19(4) empowers the State to impose reasonable restrictions on the right of
freedom of association and union in the interest of "public order" or "morality" or
"sovereignty or integrity" of India. The government may impose restrictions on
freedom to form associations only if there is a proper procedure being followed; for
example, under the Unlawful Activities (Prevention) Act, a notification declaring an
association unlawful is given effect only after the tribunal headed by a High Court
judge confirms it. Similarly, reasonable restrictions on armed forces, police forces or
government servants may be imposed. For example, a requirement that teachers of
schools should seek the Board's permission to engage in political activities has been
held to be wholesome, for a teacher has got to be under certain terms and discipline of
employment.

Restriction on freedom of movement, residence and

settlement
The State can impose reasonable restrictions under Article 19(5) on the right to
freedom of movement, reside and settle in any part of the territory of India on the
grounds of public interest and also for the protection of the interests of the Scheduled
Tribes. For example, there are many special rules for the protection of tribals
inhabiting the Andaman and Nicobar Islands (Jarawa Tribe). One cannot claim as of
right to visit the tribal areas, reside and settle with the tribal people as their
fundamental right. A rule made under the Motor Vehicles Act to mandate the wearing
of helmets by motorcyclists was held to be justified by the Supreme Court in the Ajay
Canu case. The government may declare certain areas as sensitive and protected areas,
like military establishments, nuclear plants, etc. and prohibit even citizens from
travelling there.

Restriction on freedom of profession, occupation, trade or

business
The four non-identical expressions in Article 19(1)(8), i.e. "profession", "occupation",
"trade" and "business" have similar connotations. They make the right to freedom
wider and comprehensive one; however, it may be noted that the freedom is not
uncontrolled and is subject to clause (6) which authorises the State to make legislation
to restrict this freedom on the following grounds:

1. in the interests of the general public (for example, restriction on trade in liquor,
lottery, etc.);

2. prescribing the professional or technical qualifications necessary for practising

any profession or carrying on any occupation, trade or business for example,
requirement of licence to practise as a doctor, advocate or pharmacist); or

3. creating a complete or partial monopoly in favour of the State of any trade,

business, industry or service (for example, State Trading Corporations).

Further, Parliament is empowered to impose restrictions on the freedom of trade,

commerce and intercourse between one State or another or within any part of the
territory of India, as may be necessary in public interest. Art. 302] However, no law
can be made to give preference to one State over another except in cases of famine or
scarcity of goods in any part of India Article 303(1).

Restrictions on practise of religion

The right to profess and practise one's own religion does not give the right to do
activities against public order, morality and health of the public. For example, the
Calcutta High Court in a case held that the restrictions imposed by the State on the use
of microphones and loudspeakers at the time of Azan are not violative of the right
under Article 25. Likewise, the system of Devadasis has not been tolerated by law.
Matters relating to religion and faith sometimes become very contentious and it is
important to maintain harmony in the society and respect each other's religion.
Whenever there are matters of conflict, the Supreme Court draws "a careful balance
between the freedom of the individual or the group in regard to religion, matters of
religion, religious belief, faith or worship, religious practice or custom which are
essential and integral part and those which are not essential and integral and the need
for the State to regulate or control in the interest of the community".

For example, slaughtering healthy cows on Bakra Eid is not considered essential or
required for the religious purpose of Muslims. The Supreme Court has also lamented
the religious practices of denying entry of women in religious establishments like
temples and dargah.

Restriction on minority rights

Rights to minorities are not absolute and are subject to regulations; for example, a
religious minority establishing a medical college or law college has to comply with
the regulations of the Medical Council or Bar Council, as well as the Rules/
Regulations of the University Grants Commission (UGC). The Supreme Court has
said that checks on administration may be necessary in order to ensure that
administration is efficient and sound and will serve the academic needs of the
institution. Thus, there may be reasonable restrictions on the ground of public and
national interest; however, at the same time, powers to regulate are not unlimited so as
to destroy the rights conferred.

Directive Principles of State Policy

Meaning
The Constitution lays down certain Directive Principles of State Policy, which though
not justiciable, are 'fundamental in governance of the country', and it is the duty of the
State to apply these principles in making laws. Directive Principles of State Policy are
in the form of instructions/guidelines to the governments at the centre as well as
states. These lay down that the State shall strive to promote the welfare of people by
securing and protecting as effectively as it may, a social order, in which justice-social,
economic and political-shall form in all institutions of national life.

‘No ministry responsible to the people can afford light-heartedly to ignore the
provisions in Part IV of the constitution’: Sir Alladi Krishnaswamy Ayyar

Features
1. Borrowed from Ireland – Irish constitution
 2. Part IV of the Constitution of India (Article 36–51)

3. Enshrines Socio-economic democracy

4. They are an ‘instrument of instructions’ which are enumerated in the

Government of India Act, 1935.

5. Not legally enforceable by the courts for their violation

6. The concept behind the DPSP is to create a ‘Welfare State’.

7. Sapru Report: 1945 which gave us both Fundamental Rights (justiciable) and
DPSP(s) (non-justiciable).

8. The Indian Constitution under Article 37 makes it clear that ‘DPSPs are
fundamental in the governance of the country and it shall be the duty of the
state to apply these principles in making laws.’

Justiciability
Differences between Fundamental Rights and Directive
Principles of State Policy.
Fundamental Rights DPSP

The basic rights that are guaranteed to Directive Principles of the Indian
Indian citizens by the Constitution of constitution are the guidelines to be
India are known as Fundamental Rights. followed by the Government while
framing policies.

Justiciable in nature. As per the law, Non-justiciable in nature. Violation of

the violation of Fundamental Rights is Directive Principles is not a
punishable. punishable crime unlike violation of
Fundamental Rights

Negative since they prohibit the state Positive since they compel states to
from doing certain things take actions

Aim: establishing political democracy Aim: economic and social democracy

Legal sanctions Moral and political sanctions

Do not require legislation for their Requires legislation for their

implementation implementation
 Courts are bound to declare a law as Courts cannot declare a law invalid if
invalid if they violate FRS they violate DPSP

Part 3 of the Constitution of India. Part 4 of the Constitution of India. They

Articles 12-35 of the Constitution of are given in Articles 36-51.
India.

The welfare of each and every citizen is The welfare of the entire community is
promoted through the Fundamental fostered with the help of Directive
Rights Principles.

Fundamental rights can be suspended Directive Principles of State Policy can

during a national emergency. But, the never be suspended under any
rights guaranteed under Articles 20 and circumstances.
21 cannot be suspended.

Fundamental Rights was borrowed from Directive Principles of State Policy was
the Constitution of the United States of borrowed from the Constitution of
America. Ireland which was in turn copied from
the Constitution of Spain.

Fundamental duties
Meaning
By the 42nd Amendment of the Constitution, adopted in 1976, Fundamental Duties of
the citizens have also been enumerated. Article 51 'A', contained in Part IV A of the
Constitution deals with Fundamental Duties. These enjoin upon a citizen among other
things, to abide by the Constitution, to cherish and follow noble ideals, which inspired
India's struggle for freedom, to defend the country and render national service when
called upon to do so, and to promote harmony and spirit of common brotherhood
transcending religious, linguistic and regional or sectional diversities.

Enumerations
1. Abide by the Indian Constitution and respect its ideals and institutions, the
National Flag and the National Anthem

2. Cherish and follow the noble ideals that inspired the national struggle for
freedom
 3. Uphold and protect the sovereignty, unity and integrity of India

4. Defend the country and render national service when called upon to do so

5. Promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities
and to renounce practices derogatory to the dignity of women

6. Value and preserve the rich heritage of the country’s composite culture

7. Protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures

8. Develop scientific temper, humanism and the spirit of inquiry and reform

9. Safeguard public property and to abjure violence

10. Strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement

11. Provide opportunities for education to his child or ward between the age of six
and fourteen years. (This duty was added by the 86th Constitutional
Amendment Act, 2002)

Importance of Fundamental Duties

1. They remind Indian Citizens of their duty towards their society, fellow citizens
and the nation

2. They warn citizens against anti-national and anti-social activities

3. They inspire citizens & promote a sense of discipline and commitment among
them

4. They help the courts in examining and determining the constitutional validity
of a law

Basic structure doctrine

The basic structure doctrine is a common law legal doctrine that the constitution of a
sovereign state has certain characteristics that cannot be erased by its legislature. It is
considered the skeletal structure of the constitution. It is not defined and can only be
interpreted when required by the judicial courts. It was developed by the Supreme
Court of India in a series of constitutional law cases in the 1960s and 1970s that
culminated in Kesavananda Bharati v. State of Kerala, where the doctrine was
formally adopted. The doctrine is recognised in India, Bangladesh, Pakistan, and
Uganda.
 8. Important Laws
Human Rights Laws
Definition of Human Rights
Human rights are moral principles or norms for certain standards of human behaviour
and are regularly protected as substantive rights in substantive law, municipal and
international law. Human rights are the universal and inalienable rights which are
inherently available to all human beings regardless of race, gender, caste, etc.

Difference between Human Rights and Fundamental Rights

Human Rights Fundamental Rights

Basic rights that all human beings can Primary rights of citizens which are
enjoy irrespective of where they live, justifiable and written in the constitution.
what they believe in, etc

Apply globally across national borders, Apply within a specific country and are
and applicable to all human beings applicable to the country’s citizens only

Basic and absolute rights Basic rights only

Enforceable by the United Nations or Enforceable by a country’s judicial

other international organisations system

Governed by International treaties and Governed by a country’s constitution and

agreements laws
The Protection of Human Rights Act, 1993
Object of enactment
To protect the human rights of Indians all over the country. Its main provisions
include the setting up of the National Human Rights Commission and the State
Human Rights Commissions.

Composition (Section 3)
The composition of the National Human Rights Commission shall be:

1. A Chairperson, who has been a Chief Justice of the Supreme Court

2. One member, who is or has been, a judge in the Supreme Court

3. One member, who is or has been, a Chief Justice of a High Court

4. Two members to be appointed amongst people who have specialised

knowledge and expertise in all matters relating to human rights.

5. There shall be a Secretary General who shall be the Chief Executive Officer of
the Commission.

6. Note: The Chairpersons of the National Commission for Minorities, the

National Commission for Schedule Castes and Scheduled Tribes and the
National Commission for Women, shall be deemed as members of the
Commission.

Functions of the National Human Rights Commission

(Section 12)
1. Inquire, either suo motu, or by a petition presented to it by a victim or any
person on his behalf, into complaint of

a. Violation of human rights and abatement thereof, or

b. Negligence in the prevention of such violations, by a public servant.

2. Intervene in any proceedings involving any allegation of violation of human

rights pending before a court, with the court’s permission.

3. Visit, under the notification of the State Government, any jail or any other
institution under the control of the State Government, where people are
 detained for the purpose of treatment, reformation or protection, to study the
living conditions of the inmates and make recommendations thereof.

4. Review the safeguards provided by the constitution, and various laws in force
for the protection of human rights and provide recommendations thereof.

5. Undertake and promote research in the field of Human Rights

6. Encourage the efforts of various Non-Governmental Organisations and

institutions working the field of Human Rights

7. Study treaties and international agreements on human rights and make

recommendations for their effective implementation.

Ombudsman
Meaning
The word ombudsman comes from the Swedish ombudsman, meaning "legal
representative." An ombudsman is a legal representative, often appointed by a
government or organisation to investigate complaints made by individuals in the
interest of the citizens or employees. Usually this is a state official appointed to
oversee an investigation of complaints or grievances raised by citizens regarding
maladministration of the authority or improper government activity against citizens.

Concept of Ombudsman
Ombudsman is a concept belonging to public administration in general and advocates
and protects citizens who are violated of their rights and powers against state
institutions. The ombudsman, which finds application areas at different de vlet levels
in all continents of the world, is also applied in Asia.

Meaning and Scope of Lokpal

The Lokpal is a National, anti-corruption authority or body of ombudsman,
established under the Lokpal and Lokayuktas Act, 2013, to investigate allegations of
corruption against certain public functionaries. The jurisdiction of the Lokpal will
include the Prime Minister except on allegations of corruption relating to international
relations, security, the public order, atomic energy and space. The Lokpal will also
have jurisdiction over Ministers and MPs but not in the matter of anything said in
Parliament or a vote given there. Lokpals jurisdiction will cover all categories of
public servants.
Meaning and Scope of Lokayuktas
The Lokayukta is an authority at the state level that deals with corruption and
maladministration complaints at the State level. The Lokayukt has exclusive
jurisdiction to enquire into complaints against the Chief Minister, Deputy Chief
Minister, Minister, Minister of State, Deputy Minister, Leader of Opposition and
Officers of the rank of Additional Secretary, Secretary and above. The term officers
includes officers of an Apex Co-operative Society or Central Co-operative Society,
any person holding any office in a Government Company, a Corporation local
authority established by the State Government, Vice Chancellor, Registrar of a
University, and any person appointed to a public service or post in connection with the
affairs of the State.

Limitation of the Lokpal and Lokayukta act:

1. Lack of political will to empower the institution of Lokpal and Lokayukta.

2. Many states are yet to appoint a Lokayukta.

3. Political influence in the appointment of Lokpal and Lokayukta.

4. Lokpal does not have any constitutional recognition which makes it only a
statutory authority.

5. If a complaint is made after 7 years since the commission of the offence, the
Lokpal and Lokayukta cannot entertain the complaint.

6. Lokpal cannot deal with corruption in matters regarding international relations,

defence, public order, etc.

7. Judiciary is excluded from the purview of the Lokpal and the lokayukta.

8. No clear protection of the whistleblowers of corruption.

Difference between Lokpal and Lokayukta

Point of Comparison Lokayukta Lokpal
Definition A state-level ombudsman A national-level
appointed to investigate ombudsman to investigate
allegations of corruption allegations of corruption
against public servants in against public servants in
India. India.
Appointment Appointed by the state Have to be appointed by a
 governor on the committee consisting of
recommendation of a the Prime Minister, the
committee. Chief Justice of India, and
the leader of the
opposition.
Jurisdiction Limited to the state for Have jurisdiction over all
which it is appointed. Union territories and all
central government
employees.
Powers Has powers of a civil court Have powers of a civil
and can recommend action court and the power to
against public servants, prosecute.
but cannot prosecute.
Impeachment Can be removed by the Proposed to be removed
state governor on the by a committee consisting
recommendation of a of the Prime Minister, the
committee. Chief Justice of India, and
the leader of the
opposition.
Composition Typically consists of a Consists of a chairman
chairman and 3 members. and a maximum of eight
members.
Budget Funded by the state Proposed to be funded by
government. the central government.
Implementation Implemented in some Implemented nationwide
states in India. in India
 9. Legal Maxim
Actus Non Facit Reum Nisi Mens Sit Rea
The Latin expression ‘actus non facit reum nisi mens sit rea’, loosely translated as “an
act does not render a man guilty of a crime unless his mind is equally guilty,”
expresses a foundational concept in criminal law. This means that proving criminal
culpability requires not only the presence of the actus reus and the mens rea, but also
the coincidence or concurrence of the mens rea with the conduct that creates the actus
reus.

Ad Valorem
The term ad valorem is derived from the Latin ad valentiam, meaning "to the value." It
is commonly applied to a tax imposed on the value of property.

Amicus Curiae
Amicus Curiae literally translated from Latin is "friend of the court." Plural is "amici
curiae." Generally, it is referencing a person or group who is not a party to an action,
but has a strong interest in the matter.

Audi Alteram partem

Audi alteram partem (or audiatur et altera pars) is a Latin phrase meaning "listen to
the other side", or "let the other side be heard as well". It is the principle that no
person should be judged without a fair hearing in which each party is given the
opportunity to respond to the evidence against them.

Assentio Mentium
Assentio Mentium is a Latin phrase that means "the meeting of minds." It is a term
that is commonly used in legal and business contexts to describe an agreement or
understanding between two or more parties.

Bona Fide
Bona fide literally means “in good faith”, but used in English as an adjective with the
meaning of “genuine”, “without fraud”. “Bona fide” means in good faith or
genuinely. It conveys absence of intent to deceive.
Bona Vacantia
Bona vacantia, also known as “vacant goods” or "ownerless goods" in Latin, is a legal
term for the situation in which property is left without any clear owner.

Caveat Emptor
Caveat emptor is a Latin phrase that translates to "let the buyer beware." Caveat
Emptor is a principle of contract law that place the onus on the buyer to perform due
diligence before making a purchase. In general, it is the principle that often places the
burden to reasonably examine the property before purchasing on buyers and take
responsibility for its condition.

Corpus Delicti
Corpus Delicti is a common law Latin phrase that translates to “body of the crime.”
The phrase generally refers to the principle that no one should be convicted of a crime
without sufficient evidence that the crime actually occurred. The maxim corpus delicti
refers that a person cannot be put on trial for a crime, unless it has been proven that
the crime happened. In simple terms, the prosecution has to demonstrate that
something bad happened as a result of a law having been violated, and that the
defendant was the one who violated it.

Damnum Sine Injuria

Damage without injury is a situation where there is damage to a person without any
violation of his/her rights.

De Die In Diem
The term is used to refer to an action occurring from day to day or a continuing right
of action. The maxim often refers to a type of pay schedule.

De Minimis Lex Non Curat

An abbreviated form of the Latin Maxim de minimis non curat lex, “law is not
concerned with small things.” A legal doctrine by which a court refuses to consider
trifling things.
Doli Incapax
The maxim refers to a presumption in law that a child is incapable of forming the
criminal intent to commit an offence. It is a principle of jurisprudence which describes
the criminal liability of children.

Ejusdem Generis
Ejusdem Generis is a Latin term which means "of the same kind," it is used to
interpret loosely written statutes. Where a law lists specific classes of persons or
things and then refers to them in general, the general statements only apply to the
same kind of persons or things specifically listed.

Ex Post Facto
Ex post facto law is derived from the Latin word “ex post facto” which means 'out of
the aftermath', it is a law that has a retrospective consequence on any act committed,
which is not prohibited by law, before the enactment of a preceding law.

Ignorantia Facti Excusat-Ignorantia Juris Non Excusat

The Latin maxim ignorantia juris non excusat means ignorance of law is no excuse
and the Latin maxim ignorantia facti excusat means ignorance of fact is an excuse.

Injuria Sine Damnum

Injury without damage or infringement of an absolute private right without any actual
loss or damage.

Locus Standi
The maxim refers to the right of a party to appear and be heard before a court of law
or to institute a suit or an action before the court.

Nemo Debet Esse Judex In Propria Sua Causa

Nemo in propria causa judex, esse debet, i.e.; no one should be made a judge in his
own cause. It is popularly known as the rule against bias. It is the minimal
requirement of natural justice that the authority giving decision must be composed of
impartial persons acting fairly, without prejudice and bias.
Nemo Debt Non Quad Habit
Latim maxim meaning “no one gives what they do not have”. Sometimes I referred to
as the “nemo dat” rule or principle. It refers to the question whether someone
purporting to give or sell property has legal title or right to do so.

Noscitur A Sociis
Noscitur a socii refers to “the meaning of an unclear or ambiguous word (as in a
statute or contract) should be determined by considering the words with which it is
associated in the context.

Obiter Dicta
Obiter dictum, Latin phrase meaning “that which is said in passing,” an incidental
statement. Specifically, in law, it refers to a passage in a judicial opinion which is not
necessary for the decision of the case before the court. Such statements lack the force
of precedent but may nevertheless be significant.

Pari Materia
The doctrine of 'pari materia' provides that reference to different statutes dealing with
the same subject or shaping part of the same system is a permissible aid to the
construction of provisions in a statute. "on the same subject or matter"

Per Incuriam
Per incuriam, literally translated as "through lack of care" is a device within the
common law system of judicial precedent. A finding of per incuriam means that a
previous Court judgment has failed to pay attention to relevant statutory provision or
precedents.

Qui Facit Per Alium,e Facit Per Se

Qui facit per alium facit per se (anglicised Late Latin), which means "He who acts
through another does the act himself", is a fundamental legal maxim of the law of
agency. It is a maxim often stated in discussing the liability of the employer for the act
of the employee in terms of vicarious liability. Vicarious liability.
Quid Pro Quo
Quid pro quo is a Latin maxim literally meaning giving something of value for
another. It refers to some valuable consideration in contract law and forms an essential
element of a valid contract.

Ratio Decidendi
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 judgement
on which the outcome of the case depends.

Res Ipsa Loquitur

Res Ipsa Loquitur is a Latin phrase that means the thing speaks for itself. In the law of
torts, it is a very popular doctrine. In cases, where the evidence is itself sufficient to
prove the guilt of the defendant, the maxim is used there.

Res Judicata Accipitur Pro Veritate

The doctrine of Res Judicata has been defined in Section 11 of the Civil Procedure
Code. The doctrine of the Res Judicata means the matter is already judged. It means
that no court will have the power to try any fresh suit or issues which have been
already settled in the former suit between the same parties. Also, the court will not try
the suits and issue between those parties under whom the same parties are litigating
under the same title and matters have already been judged and decided by the
competent court.

Salus Populi Est Suprema Lex

The principle of Roman law 'salus populi est suprema lex' means that 'welfare of the
people is the paramount law'. This principle is the abiding principle in the Constitution
of India.

Stare Decisis
Stare decisis means “to stand by things decided” in Latin. When a court faces a legal
argument, if a previous court has ruled on the same or a closely related issue, then the
court will make their decision in alignment with the previous court's decision
Ubi Jus Ibi Remedium
It is a Latin maxim which means that where there is a right, there is a remedy. If any
wrong is committed then the law provides a remedy for that. The maxim can be
phrased as that any person will not suffer a wrong without a remedy, it means that
once it is proved that the right was breached then equity will provide a suitable
remedy. This principle also underlines the fact that no wrong should be allowed to go
without any compensation if it can be redressed by a court of law. The law presumes
that there is no right without a remedy; and if all remedies are gone to enforce a right,
the right in point of law ceases to exist.