Tuesday, 31 May 2022

Navtej Singh Johar vs Union of India & Ors

 



Case Study

Navtej Singh Johar vs Union of India & Ors

By: Anjali Tiwari

Facts of the case:

Consensual sex between gays was classified as a "unnatural offence" under Section 377 of the IPC, and thus was made illegal. It discriminates against a minority primarily on the basis of their sexual orientation, which is similar to sex discrimination. In Suresh Kaushal and Anr Vs. NAZ Foundation and Ors, the section was challenged. It is claimed that it is in violation of Articles 14, 15, and 21 of the Constitution. In response, the Supreme Court issued an ambiguous ruling, indicating that the decision to decriminalize homosexuality should have been decided by Parliament rather than the courts. The courts can only do so if the statute is proven to be in violation of constitutional provisions beyond a reasonable doubt.

Furthermore, the court stated that because fewer than 200 cases have emerged in 150 years, there is insufficient evidence to declare that section 377 IPC is ultra vires the provisions of Articles 14, 15, and 21 of the Indian Constitution. Finally, the Supreme Court stated that Section 377 does not suffer from the vice of unconstitutionality, without going into greater detail. The same judgement was challenged in the Navtej Singh case by five members of the LGBTQ community who petitioned for the repeal of Section 377 IPC, which criminalized consensual sex between gays.

Citation: AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2018 D. No. 14961/2016
Petitoner:

  1. Navtej singh Johar

  2. Ritu Dalmia

  3. Ayesha Kapur

  4. Aman Nath

  5. Sunil Mehra

Respondent: Ministry of Health, represented by Tushar Mehta
Bench: CJI Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice
D.Y. Chandrachud and Justice Indu Malhotra. 

Issues: Constitutionality of Section 377 of IPC

Arguments from the side of Petitioner:

1) Homosexuality, bisexuality, and other sexual orientations are all natural and should not be regarded as illnesses. Criminalizing it degrades a person's dignity, causes confusion about gender identification, and infringes on the right to privacy provided by the constitution's Art 21. It also has an impact on personality development, relationship building, forcible affiliation, and other fundamental aspirations protected by Article 19(1)(a) of the Constitution.

2) The LGBT community makes up 7-8 percent of the Indian population and is discriminated against and abused because of their sexual orientation. As a result, they require more protection than other populations in order to reach their full potential and live without fear, apprehension, or dread.

3) Although transgender people have been recognized as a third gender and have been granted certain rights as a result of the NALSA case, their consensual acts are still considered illegal.

4) The petitioners want Section 377 of the IPC repealed inasmuch as it criminalizes gays having consensual sex. They believe that section 377 should be restricted to bestiality and non-consensual actions.

5) Sec 377, according to the petitioner, infringes multiple fundamental rights, including the right to dignity, equality, privacy, liberty, and freedom of expression.

6) The section violates Art 14 of the constitution since there is no discernible difference or fair classification between natural and unnatural sex. The phrases aren't specified anywhere in the regulation or the statute, thus they're ambiguous.

7) The section also violates the constitution's Article 15 since it discriminates against people based on the sex of their sexual partners.

Arguments from the side of Respondent:

1) Sec 377, according to the respondent on behalf of Intervener, comprises organ abuse, and such acts are undignified and disparaging, amounting to constitutional wrong and constitutional immorality.

2) This court has given the community with sufficient rights in NALSA, and the further reliefs sought by petitioners are only an affront to privacy and personal liberty, violating the concept of public morality.

3) Sec 377 criminalization is more significant now since homosexuals who engage in those acts are more likely to contract HIV than heterosexuals, and so the right to privacy should not be granted to them.

4) Apart from utterly destroying the family structure, marital institution, and social culture, declaring Sec 377 unlawful will also destroy the country's political, economic, and cultural history.

5) Sec 377 does not infringe on a person's constitutional rights because it is the state's responsibility to impose reasonable restrictions on some activities, such as carnal intercourse, in order to protect citizens from anything objectionable and harmful.

6) It does not infringe Art 14 because the state has the authority to determine who should be considered a class for the purposes of enacting legislation based on reasonable classification. Furthermore, the Section simply describes an offence and the punishment associated with it.

7) It does not infringe Art 15 because the provision only prohibits discrimination based on sex, not sexual orientation, which is not mentioned anywhere.

8) The Parsi Marriage and Divorce Act, the Special Marriage Act, the Indian Divorce Act, and the Hindu Marriage Act would all be affected.

Judgment

The Supreme Court overturned a 158-year-old rule on homosexuality that deemed carnal intercourse against nature a crime. The court overturned its prior decision in the Suresh Kaushal case, declaring Sec 377 illegal since it violated the Constitution's Articles 14, 15, 19, and 21.

Analysis

It was one of the most significant Supreme Court decisions in terms of the LGBTQ community's claim to equality, which had been denied by Victorian-era legislation. Discrimination against an individual based on sexual orientation is extremely offensive to the dignity and self-worth of the individual, and the community deserves equal rights and respect as any other individual.


Article 22

 Article 22: Protection against arrest and detention in certain cases

By: Anjali Tiwari

1) No person who is arrested should be held in custody without being notified of the grounds for his detention as quickly as possible, nor shall he be denied the opportunity to consult with and be defended by a lawyer of his choice.

2) Every person who is arrested and detained in custody must be brought before the nearest magistrate within twenty-four hours of their arrest, excluding the time required to travel from the place of arrest to the magistrate's court, and no such person may be held in custody beyond that time without the permission of a magistrate.

3) Clauses (1) and (2) do not apply to: (a) any person who is an enemy alien for the time being; or (b) any person who is arrested or imprisoned under any law requiring preventative detention.

4) No law authorizing preventive detention for more than three months shall be valid unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the end of the three-month period that there is, in its opinion, sufficient cause for such detention.

5) When a person is detained in accordance with an order issued under a law allowing for preventive detention, the authority issuing the order must inform the person of the grounds for the detention as quickly as possible and provide him with the earliest chance to object to the order.

6) Nothing in section (5) requires the authority issuing any such order referred to in that clause to disclose facts that the authority judges to be contrary to the public interest.

7) Parliament may prescribe by law: 

a) the circumstances in which a person may be detained for more than three months under any law providing for preventive detention without first seeking the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4); and the class or classes of cases in which a person may be detained for more than three months under any law providing for preventive detention without first seeking the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4); and 

b) the maximum period for which any person may be detained under any law providing for preventive detention in any class or classes of cases.

Pre – Golak Nath Era

The Indian Constitution was revised in 1951, and the much-discussed Article(s) 31A and 31B were included. Article 31B established the 9th Schedule, which specified that any law enacted under it could not be challenged for violating Article 13(2) of the Constitution's Fundamental Rights. According to Article 13(2), the Parliament shall not create any law that abridges the rights conferred under Part III, and any such law shall be null and void to that extent.

Sajjan Singh v. State of Rajasthan

The constitutionality of the 17th Constitutional Amendment, which added about 44 acts to the 9th Schedule, was decided by a five-judge bench in Sajjan Singh. Though all of the judges agreed with Shankari Prasad's verdict, the concurring opinion by Hidyatullah and Mudholkar JJ cast doubt on Parliament's unrestricted capacity to modify the Constitution and constrain people' fundamental rights for the first time.

Golak Nath v. the State of Punjab

Three writ petitions were consolidated in this case. The first was a protest by Golak Nath's children against the Punjab Security of Land Tenures Act, 1953 being included in the Ninth Schedule. The placement of the Mysore Land Reforms Act in the Ninth Schedule was contested in the other two cases. It is an 11-judge bench decision in which the Hon'ble Supreme Court, by a 6:5 majority, decided that fundamental rights were not covered by the Constitution's amendment, based on the following reasoning: The power of Parliament to change the Constitution is drawn from Article 245, read in conjunction with Entry 97 of List I of the Constitution. Article 368 was explicitly meant to exclusively provide for the Amendment Procedure and nothing more.

The Court further stated that a modification to the Constitution is included in the definition of 'law' under Article 13(2). As a result, any change that violated the Fundamental Rights was null and void.

The argument that the authority to change the Constitution is a sovereign power separate from legislative power and hence beyond the reach of judicial review was dismissed.



Custodial Death And Violence

 Custodial Death And Violence


The correlation of a topic on an established parameter that quantifies it in non-arbitrary terms is required in such cases, when the topic itself is unclear and ambiguous. Specifically, the measure of a person's right to life and liberty is derived from the 19th century English Concept of Rule of Law, which fluctuates in its application.

In order to have a complete knowledge of the Rule of Law in relation to custodial death/violence, it is necessary to first grasp the fundamental concepts of the theory.

The concept of Rule of Law originates with the unwritten constitution of the United Kingdom. Sir Edward Coke, who served as Chief Justice during James I's reign, was the one who first proposed the principle, which stated that the King should be considered a subject of the law and should be considered below the law. Prof. AV Dicey, in his work, The Law of the Constitution, mentions three postulates of the theory of the rule of law, which he attributes to Professor AV Dicey.

Supremacy of Law/Absence of Arbitrary Power: It is the law that should be supreme, and no man should be punished unless he has committed a specific violation of the law that has been proven in an ordinary legal manner, in an ordinary court of law, and that has been proven in an ordinary legal manner, in an ordinary court of law.

 A situation in which a person is treated equally before the law, irrespective of his or her socio-political status This is the foundation of Article 14 of the Indian Constitution.

Individual Liberty/Predominance of Legal Spirit: This is a situation in which the liberty of an individual is of supreme importance and in which the same must be incorporated into the legal spirit of the country. Unlike a written constitution, Dicey believes that individual liberty is more safeguarded in an unwritten constitution than it is in a written constitution.

At first glance, it looks that AV Dicey was attempting to assert an individual's right to life and liberty in all instances, regardless of the circumstances. After having gained an understanding of the context, we will proceed to examine the rule of law and its implications in cases of custodial death or violence.

[ii] There is no mention of custodial death or violence elsewhere in the constitution. Nonetheless, in a wide sense, the phrase "custodial death" refers to the unnatural death of a prisoner while in the custody of law enforcement[iii]. It is used to describe situations in which a prisoner is being tried or has been convicted and is serving a sentence when he or she passes away.

Custodial death is generally regarded as unwanted in a democratic society, and this is widely held. It has a tendency to perforate beyond the established bounds of separation of powers and to obstruct the progress of natural justice in its pursuit. Furthermore, documented occurrences of custodial death constitute a stain on the reputation of the rule of law. The following are the reasons why.

The supremacy of law and the lack of arbitrary power are established by the first premise of the rule of law. It envisions a regulation that specifies that a person should not be penalised unless they have committed a criminal offence. Furthermore, such a sentence is only to be inflicted by a regular court of law in this country.


This premise is violated by the basic notion of custodial death/violence (see below). The majority of deaths in jail occur in the context of ongoing trials, as opposed to those whose offence has not yet been proven. As a result, the question of whether or not they broke the law comes later in the process.


When guilty convicts die in imprisonment, their offence has already been condemned, and their death in custody is, to put it mildly, a farce. Furthermore, when a person dies in custody, he or she has basically been administered a punishment by an institution that does not have the authority to do so in this situation. According to the rule of law, only the courts have the authority to sentence a person to death, and law enforcement officers abusing their authority to do so is a flagrant violation of this fundamental principle.

In the landmark case of Olmstead versus United States the Supreme Court of the United States associated the police with the state and stated that if the state (by custodial violence) itself becomes a law breaker, it fosters contempt for the law and anarchy. The police have enormous power and responsibility in a civil society, and as a result, they must exercise this power and responsibility with considerable prudence.

Egality before the law is the subject of the second postulate of the rule of law. Theoretical thinking appears to diverge from reality in this instance. Figures have repeatedly demonstrated that the weaker and marginalised sections of society bear the brunt of custodial abuse to the greatest extent possible. The richer section of society quickly resorts to judicial means to protect their lives, whereas the poor, downtrodden, and ignorant, who lack the resources to approach higher authorities for the protection of their liberty, are frequently subjected to the music of custodial violence in order to survive.


Rather than following established processes, they are taken into custody and no record of their detention is kept in the books. Then, once they have died as a result of the torture, the police stage the death to appear as if it was a suicide.

According to the Supreme Court, in the case of Raghubir Singh vs State of Haryana, the situation is so dire that the court expressed great anguish and concern over the fact that those who are supposed to protect the rule of law are increasingly becoming the most egregious violators of fundamental human rights. Individual liberty and the primacy of the legal spirit are discussed in the third postulate of the rule of law, which states that the liberty of an individual should be given the highest priority. What one must understand is that being detained in itself is an attack on the liberty of the individual involved. The due process of law is used as a justification for this attack on his or her liberty in this instance. However, when this due process is not followed, such as when a prisoner is subjected to custodial assault, this fundamental principle of the rule of law is broken, as is the case in this case. Furthermore, when a person dies while in detention, it is not only his or her liberty that has been revoked. If he is the sole breadwinner in his family (which is the case in the vast majority of cases), the liberty and dignity of the entire family are jeopardized. As a result, the protection of an individual's liberty is given such high priority.


Rights of surety in guarantee

 Rights of surety in guarantee


A Surety's Obligations

After completing a payment and relieving the principal debtor of his or her obligation, the surety is

entitled to a number of benefits. These rights can be broken down into three categories:

Principal debtors have legal recourse against them. The right to act as a guarantor on the payment of

a debt, also known as the right of subrogation The right of subrogation indicates that, because the

surety had provided a guarantee to the creditor and the creditor had left the scene after receiving

payment, the surety will now treat the debtor as if he were a creditor in the same manner as the

creditor. So the guarantor has the right to collect any money that he has paid to the creditor,

including the main amount, charges, and interest that have accrued throughout the period of the

guarantee.

Indemnification is a legal right.

In every contract of guarantee, there is an implied obligation by the principal debtor to indemnify

the surety, and the surety is entitled to recover from the principal debtor any sums he has legally

paid under the guarantee in the event of default by the principle debtor. As a result of the principal

debtor's failure to fulfil his or her commitment, the guarantor has experienced a financial loss, and

as a result, the surety is entitled to compensation from the debtor.

Illustration

Luthra and company has obtained a loan from Khaitan and company, with Amarchand acting as a

security on Luthra's behalf. Khaitan seeks payment from Amarchand and, upon his denial, sues him

for the sum owed. Amarchand fights the suit on the grounds that he has fair grounds to do so, but

he is ordered to pay the full amount of the debt, plus interest and expenses. He has the right to

reclaim from Luthra the amount he has spent in costs, as well as the amount of the principal

obligation.

Creditors have some rights against you.

The right to receive securities that have been granted by the principal debtor

The surety, upon settlement of the principle debtor's obligation, becomes entitled to claim all of the

securities that the principal debtor had surrendered to his creditor as a result of the principal

debtor's default in making payments. No matter when the securities were received, whether before

or after the guarantee was created, the Surety has the right to them all, and it makes no difference

whether or not the Surety is aware of the existence of the securities.

Illustration

Anita loaned Rs 100000 to Sita on the condition that Priya would guarantee the loan. This loan is

likewise secured by a security for the debt, which in this case is the lease of Sita's residence. Sita fails

to make a payment on her loan, and Priya is forced to settle the bill. Priya is entitled to acquire the

lease deed in her favour once Sita's liabilities have been fully satisfied.

Possession of the right to proceed

When a creditor sues a surety for the payment of the principle debtor's liabilities, the surety may be

able to assert a set-off or counterclaim against the creditor, assuming the principal debtor had one

against the creditor at the time of the suit.


Co-sureties have the right to sue you.

The release of one co-surety does not result in the release of the others.

When more than one person guarantees the repayment of a principal debtor's obligation, this is

referred to as co-suretyship, and each of the co-sureties is responsible for contributing to the

payment of the guaranteed debt in accordance with the terms of the agreement. The release by a

creditor of one of the co-sureties does not relieve the other co-sureties of their obligations, nor does

it relieve the released surety of his or her obligations to the other co-sureties.

When the payment of a debt or the performance of a duty is guaranteed by co-sureties, and the

principal debtor has defaulted in fulfilling his obligation, and the creditor only requires one or more

of the co-sureties to perform the entire contract, the co-surety sureties performing the contract are

entitled to claim contribution from the other co-sureties who have not defaulted in their obligations.

Co-guarantors to make equal contributions

If there is no express agreement to the contrary, the co-sureties are each liable for an equal share of

the loss, as stipulated by Section 146. When co-sureties are jointly and severally liable, whether

under the same or different contracts, and whether with or without each other's knowledge, this

concept will apply regardless of whether the co-sureties' culpability is joint or several.

Illustration

A, B, C, and D are co-sureties for a debt of Rs. 2,0000 owed to R by Z, who has loaned the money. R is

in delinquent on his loan repayments. A, B, C, and D are all required to make a contribution of Rs.

5000 each.

Liability of co-sureties who are obligated to pay various amounts

When a group of co-sureties agrees to guarantee different amounts, they are required to contribute

equally, up to a maximum of the sums guaranteed by each of them.

Illustration

A, B, and C, who are sureties for D, each engage into a separate bond with a different penalty: A for

Rs. 10,000, B for Rs. 20,000, and C for Rs. 40,000, each with a different penalty. To the tune of Rs.

30,000, D defaults on his obligations. A, B, and C are each responsible for Rs. 10,000 in

compensation. If this default was to the tune of Rs. 40,000, the situation would be different. Then A

would be liable for Rs. 10,000, while B and C would each be liable for Rs. 15,00

Historical School of Jurisprudence

 


Historical school advocated that law is developed from social custom , economic needs, convention religious principle , and relations of the people living in a state. The advocates of this school argued that law is not made but is advanced from the pre-existence materials like customs and religious principles , unlike the natural school , which believed that law originates from superior authority or sovereignty .


Historical School Of Jurisprudence- Concept and Meaning

The jurist of this school believed that law should be changed with the changing need and nature of the person and they followed concept of man-made laws. Therefore, It would be seen that historical school developed as a stimuli to legal theories propounded by analytical positivists and the natural law philosophers. The latter states that the law was founded on the abstract notion of the human conscience and reason.


The school rejected the idea of formation of law by judges and the origin from some divine relevance. Historical school banished ethical consideration from jurisprudence and rejected all creative participation of judge and jurist or law-giver in the making of law. Fredrick Pollock was one of the supporter of historical school , he believed that morals, as such were out of the domain of judge or jurist.


Background

The revolutionary ideas that were born by positivistic legal thinking had a devastating effect as they failed to meet the needs of the people due to which new approach was propounded, known as Historical conception of law. The advocates of this school believed that law has biological growth and it has not evolved in an arbitrary and prompt manner.


Montesquieu (1689-1755) was the first jurist to adopt historical method of pursuing the study of legal institutions and came to the conclusion that �laws are the creation of climate and local situation�. He did not briefed further into the co-relation of between law and society but certainly pointed out that law must keep pace with the changing needs of the society.


 





James Carter, an American jurist argued that law came to the existence even before the political revolution or consciousness , therefore , it has to be traced and identified with the customs followed in a given society. And so he focused on the historical evolution and development of law. However, identifying law with custom alone will not be a correct proposition. Custom at its best can be one of the many source of development of law.


As per English Legal Historian Holdsworth pointed two major factor that are responsible for the emergence of historical school of jurisprudence namely , i) The French Revolution and its aftermaths ,and ii) Darwinian theory evolution which altered the character of scientific speculation during that period concerned. This was even supported by apex court of India, i.e. Supreme Court of India in case Byram Pestonji Vs. Union Of India 1991, where court quoted justice Thomen as, Indian legal system is the product of history. It is rooted in our soil , nurtured and nourished by our culture , languages and traditions , fostered and sharpened by our genius and quest for social justice , reinforced by history and culture.


Law and Morality

 



Law and Morality

To understand the relationship between Law and Morality, it is first necessary to understand what the terms Law and Morality mean. Law is not something that can be read and taken literally. The school of natural law interpreted law in relation to morality by using the term morality. It focused on what should be the rule rather than what is currently the law. They argued that law should be interpreted in terms of faith, morality, liberty, justice, and conscience, rather than merely in terms of the law.


However, positivism characterised law as stressing that it is only subject to our own experiences. There is no connection between morality and the law. The law is the coming of the Sovereign that can be enforced through punishment.[1]


Morality is a collection of principles that allow people to live together in communities. It's what societies deem right and appropriate Morality isn't set in stone. What you consider appropriate in your culture will not be acceptable in another. Morals are influenced by geographical areas, faith, family, and life experiences.[2]


Difference between Law and Morality

There was no difference between law and morality in Ancient Societies. They were both thought to be the same person. With the arrival of the Middle Ages, faith provided a spiritual foundation for the law. Modern philosophers in the post-Reformation period stressed the contrast between law and morality.


The following are some of the differences between law and morality:

Law is concerned with a person's individual liberty, while morality is concerned with collective conceptions of what is good and evil.

Law governs a man's behaviour when he is a member of a particular society, whereas morals govern a man's behaviour even when he is alone.

Laws consider a man's outward behaviour, while morals consider factors such as inner resolve and willpower direction.

Law is imposed by "external coercion," while values appeal to an individual's free will.[3]




Case laws on Law and Morality

Queen vs. Dudley and Stephen's Case [4]

For many days, the defendants, Dudley and Stephens, as well as two other gentlemen, Mr. Brooks and the survivor, Richard Parker, sat on the boat. When it became clear that everyone would perish from thirst and hunger, the defendants agreed to kill Parker for the sake of the others. A man who kills another to eat his flesh in order to escape hunger death is guilty of murder; however, he is in such circumstances at the time of the act that he believes and has fair reasons to believe that it is the only way to save his life.


Judgment of the case: In this case, the court held that one person cannot sacrifice another person's life to save his or her own. And on these facts, there was no evidence of any necessity that could justify the prisoners in killing the boy and they were guilty of murder. It becomes very much clear by the decision in this case that what appeared to be morally right from the eyes of the defendants was considered as a crime in the eyes of the law


Role of lawyers in justice delivery system

 ROLE OF LAWYERS IN JUSTICE DELIVERY SYSTEM


By P.Hema

A Lawyer is known as the officer of the court and hence he has more duties in order to make the

justice system run smooth and help deliver speedy justice. The Bench and Bar relation is the

must for professional development and therefore, an advocate is given a brief of how to balance

the bench and bar relation in judiciary system. The development of lawyers as a class of

professionals can be attributed to the need for trained persons who can form the competent

interface to facilitate the interaction between the lay persons and the judiciary. This involves

providing legal advice in matters of rights, liberties or property of the client within the

framework of legislative and legal rights, and representing the client in the event of a dispute

before an adjudicatory body.

The primary duty of the lawyer is to inform the court as to the law and facts of the case and to

aid the Court to do justice by arriving at correct conclusion. Since the court acts on the basis of

what is presented by the advocates, the advocates are under the obligation to be absolutely fair to

the Court.

In fact, if law is viewed as a ‘public good’ which is frequently technical and not self-executing,

meaningful access to law requires the assistance of a lawyer. Particularly, in most jurisdictions,

the members of the legal profession are conferred the status of privileged members of the

community, and occupies an exclusive domain with the privilege of pleading and acting on

behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic

character of the legal profession entails certain high traditions which its members are expected to

upkeep and uphold. Therefore, the lawyer plays an indispensible role in the mechanism of

administration of justice.

As a professional, the functional role of an advocate, in essence, is comparable to that of a legal

technician. An advocate is specially trained in the technical profession of ‘law’, and with his

grasp over the subject matter; professional function consists largely of providing counsel for

clients about how to escape or mitigate the incidence of the law’s obligations, availing of the

loopholes and the ambiguities of law.

The public impact of the legal profession can be gauged by the observation of the Supreme Court

in All India Judges Association v. Union of India, wherein it was observed that the

administration of justice and the part to be played by the advocates in the system must be looked

into from the point of view of litigant public and the right to life and liberty guaranteed under

Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution.

Viewed in this context, it can be said that the lawyer is indeed the channel through which the

general public can access the law, and avail of the protection of the law, in the shrine of justice.

Writ Jurisdiction

 Writ Jurisdiction


Indian law consists of various writs which are issued by the Supreme court and High court. In earlier

times these writs were used by English monarch to a specified person to undertake a specified action for

eg; in the feudal era a military summons by the king to one of his tenants –in –chief to appear dressed

for battle with retinue at a certain place and time. Writs are not only part of Indian laws but it is also a

part of Canadian law, united kingdom, and Australian law.

These writs were originated in the Anglo Saxon monarchy and consisted of a brief administrative order

authenticated by a seal. In earlier times, these writs were used against the landlords by the king's

chancellor when the vassal complaint about the injustice and the landlord didn't comply with the sheriff.

William the Conqueror, took over the system unchanged. But he was unable to expand until Henry the

second came and expanded the scope.

Our constitution talks about the application of these writs Article 32 talks about the rights conferred by

the Supreme court and Article 226 talks about writ jurisdiction under by the High court. Writ jurisdiction

under the High court decides whether or not to issue the writ. Writ protects the person's fundamental

rights.

In the Chandra Kumar case, in this it was held that the writ jurisdiction of both the High court and

Supreme court is a part of the constitution's basic structure .which means that even if the constitution is

amended it could not be repealed or eliminated.

There is a major difference between supreme court jurisdiction and high court jurisdictions Supreme

court issue writs when there is a violation of the fundamental right and the high court has the authority

to issue writ not only when there is a violation of fundamental right but also in other situations.

There are 5 types of writs

 Habeas Corpus: it is a Latin term which means to have the body. If a person is detained

unlawfully his relative or friend or any person can move the court by applying Article 226 in high

court or under article 32 . in the Bhim Singh v. State of Jammu &Kashmir, the apex court

awarded the exemplary damages of Rs 50,000. Under this writ, anyone can apply for habeas

corpus on the behalf of the petitioner.


 Mandamus: this term means we command. This writ checks the arbitrariness of administrative

action. It is known as a writ of justice. The rule of Locus Standi is strictly followed in the writ of

mandamus.

 Prohibition: means to prohibit, this writ can be granted by the Supreme court, High court, and

quasi-judicial bodies. This writ applies to anybody irrespective of the nature of the function

exercised by it if any ground on which writ is issued is present.

This writ can be issued on the following grounds;1. Absence or excess of jurisdiction,2. Violation

of the principles of natural justice, 3. Unconstitutionality of a statute and 4. Infraction of

fundamental rights

 Certiorari: means to certify, this writ confers power on the Supreme Court and high court to

correct the illegality of their decisions. Case: AK Kripak v. Union of India, the supreme court

issued the writ of certiorari to quash the selection list of the Indian Forest Service on the ground

that one of the selected candidates was the ex –officio members of the selection committee.

 Writ of Quo Warranto; means whatsis your authority, it is a judicial order asking a person, who

occupies public office to show by what authority he/she holds. If it is held that the office holder

has no authority then this writ is issues.

Judicial Review

 Judicial Review

India has 3 organs known the legislature, executive, and judiciary. Judiciary as the organ is independent whereas the rest of the organ is somewhere dependent on each other. Judiciary's task is to adjudicate controversies over the application of laws in a specific situation. The judiciary is also responsible for keeping a check on the rest of the organs this is known as judicial review.

Judicial review can be defined as a procedure by which a court can review an administrative action by a public body and secure a declaration, order, or award. The actions which are against the constitution of the country are declared as void, this showcases that such a review depends upon the written constitution. 

Judicial review was first discussed in the United States, in the case of Marbury v. Madison. The court ruled out that the newly elected president of that time and his secretary of the state, john madison was wrong to prevent William Marbury from being justice of the district court as being appointed by the former president before leaving the office, so writ was filed under the mandamus against the secretary of the state. In this case, the judiciary act gave the supreme court jurisdiction, marshall court ruled the act of 1789 to be an unconstitutional extension of the judiciary.

Judicial review of India has been adopted from the US constitution, but Britain follows a different rule which is that no court can declare any law as invalid which is passed by Britain.

In the Indian constitution, various provisions talk about judicial review such as Article 13, 32, 131-136, 143,226, 145, etc. There might be provisions that give chance for judicial review but there is no specific article that gives power to the court to declare the law invalid. The court only decides whether a law is constitutional or not. If the provision is considered unconstitutional then it is seen that the provision can be separated from the unconstitutional part of the provision. If it can be then the unconstitutional part is removed but if not then the whole provision is considered void.

Various cases describe a judicial review, such as  Shankari Prasad v. Union of India, this case was related to the right to property was abridged by the act and against article 13 of the constitution. it was held that the Supreme court rejected the contention and talked about the terms of article 368 are perfectly general and empowered the parliament to amend the constitution without any exception. 

Case Minerva mill case is another example of judicial review,  42 nd amendment act which gave power to directive principle over articles 24, 19, 31 of our constitution. Part iii and part iv of the constitution are equally important and absolute primacy of one over the other is not permissible.

Case P.U.C.L v. O.I, the apex court of the country, gave a historical verdict stating that to disregard or disobey the decision given by the court. It was also seen that if the legislature does not influence the subject matter then the lawmaker of no power to ask for instrumentality.


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actus dei nemini facit injuriam

 Actus Dei Nemini Facit Injuriam



The Actus Dei Nemini Facit Injuriam states that "God 's action does not result in legal action against anyone". In other words, no one is responsible for anything beyond human ability. This includes any damage caused by unnatural forces, which will not be covered by law. It means that the law cannot place anyone who is guilty of an act of God which is ‘force majeure’. Likewise, no one can complain of any act of God because such an act is inevitable. Even any legal action or claim for compensation against the act of God will not be considered by the Court.


The act of God is used as a defense tool in cases of torts where the situation is beyond the control of the defendant and the damage is caused by the forces of nature. In such a case, the defendant will not be liable for criminal law for such unintentional damages. Two key factors are required in the use of such defenses. First, there must be natural energy efficiency. Second, the occurrence should be unusual and without thought. And in the end, it has to be beyond human ability.


Looking at Nadar v. Narayana Reddiar (AIR 1971 Ker 197) plaintiff had a contract with the defendant to transport the goods. But the property was looted by a mob that was beyond the control of the defendant. It was thought that "every incident beyond the control of the accused could not be called the Law of God" and that "the destructive actions of an unruly mob could not be considered an act of God". It was also resolved in this case that actions that could be traced back to the forces of nature and that could not be linked to the intervention of human organization could be useful to God.


Similarly, in Nicholas v. Marsland (1876) 2 EXD 1, defendant had several pools to be made in his country. Unprecedented rainfall caused the shores of the lakes to burst and the water to flow over the plaintiff's bridges. It was assumed that the plaintiff's bridges were broken by God's action and that the defendant was innocent.


Conclusion 

Actus dei nemini facit injuriam is a legal maxim which means that the natural forces action can not result in any legal damage to any person , a person can not be held liable for something which is force majeure , in law of torts it acts as an exception and as a protection against the damages . The act of God is used as a defense tool in cases of torts where the situation is beyond the control of the defendant and the damage is caused by the forces of nature. In such a case, the defendant will not be liable for criminal law for such unintentional damages. Two key factors are required in the use of such defenses. First, there must be natural energy efficiency. Second, the occurrence should be unusual and without thought. And in the end, it has to be beyond human ability.


Defamation

                               Defamation

Defamation is that offence which is charged on people who try to or tend to create wrong opinion or image of any individual in the eyes of the public. It is a procedure which keeps the check and balance on the people who tend to harm the reputation of other people by keeping an eye on their Right to freedom of Speech and Expression as inculcated in Article 19 of the Constitution of India.

To make sure that this does not happen, that is the reputation and image of the individual is not harmed, there are provisions under the Section 499 and Section 502 of the Indian Penal Code, 1860 which talks about the defamation and the punishment awarded in this offence.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 To mention the actual definition, defamation is charged on peoples who by spoken words or written words, signs or visible gestures creates or publishes any imputation on any person with an intention to harm the reputation of that person and the person who makes such an imputation should have the knowledge or a reason to believe that whatever he or she is saying will ruin the reputation of the other person. Also, some things are important which should be established before charging for the offence of defamation:

  1. It is necessary that the words spoken or written or anything in any matter has the capacity to harm the reputation of the person in any third person’s eyes apart from the person talked about ant the person who is saying. 

  2. For a person to be sued for defamation, the publication should be established that is the words spoken or written must have been read or heard or seen the written, spoken, gestured or pictured defamatory words.  There will be no defamation if the person only thought about that in his own mind. Therefore, it should be conveyed to the third person in true sense. There are various forms of publication which can take place. They are:

  1. Direct communication- If the person saying bad words or anything which have the capacity to harm the reputation of the person, is directly conveyed to that person only, then it will not constitute as defamation. The reason behind this no one heard. It was direct communication between the person talked about and the person saying it. Except them, no one heard and no reputation was ruined.

  2. By Repetition- To sue for the act of defamation, there is a limited time which the person can take and according to the Limitation Act, 1968 this period is for 1 year and it will renew every time when it will be published. Also, the defamation will be charged every time, the publication takes place.

  1. Printed matters- The publication also takes place when it is printed. It is said that whoever prints information which can ruin an individual’s reputation or defamatory in nature will be awarded punishment. According to the Section 501 of the Indian Penal Code 1860, that person will be sent to jail for maximum of 2 years or fine or both is provided. And according to Section 502, the person who is involved in circulating that defamatory matter who has the reason to believe that the matter which he or she is carrying will ruin someone’s reputation will also be charged with the offence of defamation and the punishment awarded will be imprisonment which can extend to two years or could be fine. In some cases, both will be done.

However, there are exceptions also which is included in the Section in case the person doing it has not done it intentionally and whatever has happened was the accident. But still, the punishment is mentioned in the Indian Penal Code, 1860 if someone ever tries to harm the reputation of the other person because the reputation is something which the individual builds his own life and no one has the right to just come and ruin it.


Actus Curiae Neminem Gravabit

 Actus Curiae Neminem Gravabit




This policy has been considered important in the Indian justice system and law enforcement – that no one should suffer as a result of a court error or procedural delay – Busching Schmitz Private Limited Vs P.T. Menghani & Ors., MANU / SC / 0344/1977: AIR 1977 SC 1569: 1977 (2) SCC 835.

A bench of 3 Judges in the Supreme Court ruled that if the Court in providing information erred on the plaintiff’s obligation, although not completely terminated, the Court was allocated at least. If the respondent acts on the basis of that information the courts will not be able to prosecute him or her for the misconduct. It went on to say that “there is no higher policy directed by the Court other than that no court action should injure a defendant and it is the responsibility of the courts to determine that if a person is harmed by an offense. Of the Court should be reinstated in a position he did not hold but because of that error. This is well summarized in the principle: Actus curiae neminem gravabit; Therefore, because of a District Court error that needed to be corrected, the parties were reduced to a position in which the Court had made a mistake, an error that was corrected by SC nunc pro tunc. Jang Singh Vs Brijlal & Ors., AIR 1966 SC 1631: 1964 (2) SCR 145.

The Supreme Court used the legal term “actus curiae neminem gravabit” to support its conclusion that the legislature would not intend to set a time limit on court action in order to win a court case. Complainant – Bharat Damodar Kale & Ors. Vs State of A.P., MANU / SC / 0794/2003: AIR 2003 SC 4560: 2003 (8) SCC 559.

The Supreme Court concluded that the maxim “actus curiae neminem gravabit” forms the basis for a decision-making policy under Section 152 of the Code of Civil Procedure where any error arising from a decision due to a mathematical or typographical error or slip can be corrected. By the Court. After considering a number of laws, it sets out the conditions under which the Court can apply the following principles: -

In a case where it is clear that something the Court intended to do but the same slipped by mistake or error entered due to clerical or mathematical error would further the judicial conclusions so that the Court could rectify that error.

But before exercising that power the Court should be satisfied with the law and reach a legal conclusion that the order or decision contains or omits something intended to be otherwise i.e. on schedule or order due to clerk error, arithmetical error or slip slip by mistake.

Facts and circumstances may provide some clues as to the intent of the court but not necessarily the same in the order or in the order in which they were intended to be added.

The power to correct typographical errors, arithmetic or slip by accident does not give the court the power to reconsider the matter and find that a better order or declaration may be passed or appropriate. The legitimacy of the case should not be considered in order to conclude that it would be better and the merits of the matter to pass the order required to be passed in the amendment.


Nervous Shock

                         Nervous Shock

The meaning of nervous shock varies from subject to subject but according to the law of tort, it means an injury which is inflicted upon a person intentionally or by negligent actions or omissions of the other. Often, it is applied to psychiatric disorders which are obviously ‘inaccurate’ and ‘bad’ in eyes of law as it disturbs the individual mentally and can cause serious problems.

For the act to be considered as ‘Nervous Shock’ in the law of torts, some requisites are there in order which has to be established before. They are:

  1. At a place or situation where the duty of care exists.

  2. There is a breach of that duty.

  3. The casual link between the breach of the duty and the nervous shock is established.

  4. Where the shock was not too remote a consequence.

Historically, there was no statutory law which defines the term nervous shock or the punishment or provisions regarding that. The offence of nervous shock has been emerged and evolved in Indian Law by the landmark cases which are followed as precedents. Earlier, it was very difficult to establish a link between the subject matter and the shock which the individual gets because of that but slowly as the cases came in front of the Court and the thorough study which is done by the various legal researchers and scholars, the actual law came which could really give the punishment who negligently or intentionally injures the person mentally.

One of the another reason that there is no claim for nervous shock in earlier times was people could easily take the advantage of the situation in the name of the nervous shock. It have the capacity to attract false and dubious claims under the garb of psychiatric illness as it would be very difficult to establish and outline the parameters which led to that. 

Also, the punishment differs according to the victim, that is primary victim and secondary victim. Primary victim is a victim who is directly involved in the accident and the individual suffers injuries as a result of the fault of the tortfeasor and the Secondary victim is a victim who suffers nervous shock without himself/herself being directly exposed to any physical danger in the accident to the primary victim. In the case of secondary victim, the injury has to be established which is reasonably foreseeable but also has to pass the three litmus tests which are as follows:

  1. Proximity of the relationship with the immediate victim. For example: the case should not be like that a bypasser is going and had an accident due to which the person suffered nervous shock. If such thing happens, there should be no offence because nothing is done intentionally or negligently.

  2. Proximity in time and space to the events causing the psychiatric illness. The case should be as such that there is a close relationship between the events which causes psychiatric illness.

  3. The means by which psychiatric illness is caused.

Therefore, whatever the case maybe, the person inflicting injury mentally also should be charged because at the end of the day injury is injury be it physical or mental. It gives immense pain.


Privity of Contract

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