ppt0000002 judicial process all chapter.pdf
5,065 views
108 slides
Feb 01, 2024
Slide 1 of 108
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
About This Presentation
Law
Slide Content
FOUNDATION PAPER
III
JUDICIAL PROCESS
Presented by-
Prof Alka R. Patil
Department of Law,
University of Mumbai
1
III
JUDICIAL PROCESS
Presented by-
Prof Alka R. Patil
Department of Law,
University of Mumbai
1
JUDICIAL PROCESS
•“Judicial process” means any judicial
proceeding in connection with the
dispensation of justice by any court of
competent jurisdiction.
•“Social ordering” means activating the
instrument of judicial Process is setting right
the wrong done or eliminating injustice from
the society.
2
•“Judicial process” means any judicial
proceeding in connection with the
dispensation of justice by any court of
competent jurisdiction.
•“Social ordering” means activating the
instrument of judicial Process is setting right
the wrong done or eliminating injustice from
the society.
2
Historical Background of Judicial System
in India
•The present judicial system of India was not a
sudden creation.
•Slow and gradual process
•After Constitution have been the greatest
molding factors.
•Administration of justice is one of the most
essential function of the state.
•If men were god.
•Laws and courts have always gone together.
3
in India
•The present judicial system of India was not a
sudden creation.
•Slow and gradual process
•After Constitution have been the greatest
molding factors.
•Administration of justice is one of the most
essential function of the state.
•If men were god.
•Laws and courts have always gone together.
3
JUDICIAL SYSTEM IN ANCIENT INDIA
•Its started when Manu and Brihaspati gave us
Dharma Shartras,
•Narada the smritis, &
•Kautilya the Arthshartra
•In ancient times, India has a fairly well-
developed and sophisticated system of adve
law.
•In civil judicial proceeding
•Plaint- Purva Paksha
•Written statement – Uttar Paksha
4
•Its started when Manu and Brihaspati gave us
Dharma Shartras,
•Narada the smritis, &
•Kautilya the Arthshartra
•In ancient times, India has a fairly well-
developed and sophisticated system of adve
law.
•In civil judicial proceeding
•Plaint- Purva Paksha
•Written statement – Uttar Paksha
4
•The conclusion – Nirnaya
•Certified copies- Jayapatra
•The doctrine of res judicata – Pran Nyaya
•In Criminal Law---classification of offence
•Rape, dacoity and conventional offences.
•Punishment was prescribed for causing dame
to trees but no serious matters.
•Six types of punishment
•Fine, reprimand, torture, imprisonment, death
and banishment
5
•Certified copies- Jayapatra
•The doctrine of res judicata – Pran Nyaya
•In Criminal Law---classification of offence
•Rape, dacoity and conventional offences.
•Punishment was prescribed for causing dame
to trees but no serious matters.
•Six types of punishment
•Fine, reprimand, torture, imprisonment, death
and banishment
5
•Theft was 3 kinds
•Open or patent thieves- traders who employed
false weights, measures, gamblers, etc,.
•Secret thieves – clandestinely (done secretly,
concealed)
•Manu prescribed-(oath)
•Judge cause a Brahmin to swear by his truth
•Kshatriya by his weapons
•A Vaishya by his Cattle, grain and gold
•A shudra by imprecating on his head the guilty of
all grievous offences.
•Bentham critise above oath
6
•Open or patent thieves- traders who employed
false weights, measures, gamblers, etc,.
•Secret thieves – clandestinely (done secretly,
concealed)
•Manu prescribed-(oath)
•Judge cause a Brahmin to swear by his truth
•Kshatriya by his weapons
•A Vaishya by his Cattle, grain and gold
•A shudra by imprecating on his head the guilty of
all grievous offences.
•Bentham critise above oath
6
•Taghlaq period – civil procedure code called
(fiqha-e-feroze shahi)
• written in Arabic & was translated into Persian
under the order of (F-E-F SHAHI).
•Period of Aurangezeb (above repeal) (Fatawa-i-
Alamgiri written in1670.
•Plaintiff – Muddai
•Defendant – Mudda Allaih
•Plaint – Daawa, the complaint in criminal cases –
Istaghasa
•British Govtn – four Law Commission years 1834-
1947
7
(fiqha-e-feroze shahi)
• written in Arabic & was translated into Persian
under the order of (F-E-F SHAHI).
•Period of Aurangezeb (above repeal) (Fatawa-i-
Alamgiri written in1670.
•Plaintiff – Muddai
•Defendant – Mudda Allaih
•Plaint – Daawa, the complaint in criminal cases –
Istaghasa
•British Govtn – four Law Commission years 1834-
1947
7
JUDICIAL PROCEDURE IN ANCIENT
TIMES.
•In early Vedic times, no judicial procedure
•Rigveda gives civil laws
•The kings can do no wrong
•Disputes according to the rule of their own
profession. Artisans, trade guilds, money-lenders
etc,.
•No limits to the jurisdiction of courts in Civil
matters.
•No evidence was forthcoming
•Plaintiff-the Prasnin, the defendant –Abhi
Prasnin, judge- Prasna-Viveka
8
TIMES.
•In early Vedic times, no judicial procedure
•Rigveda gives civil laws
•The kings can do no wrong
•Disputes according to the rule of their own
profession. Artisans, trade guilds, money-lenders
etc,.
•No limits to the jurisdiction of courts in Civil
matters.
•No evidence was forthcoming
•Plaintiff-the Prasnin, the defendant –Abhi
Prasnin, judge- Prasna-Viveka
8
JUDICIAL SYSTEM IN PRESENT INDIA
•Is a foreign transplant on Indian soil.
•Constitution of India- three types of court
•The Supreme Court of India. instrument of social
ordering – Article 32.
Chapter IV of Part V
Original jurisdiction-dispute betn centre and state.
Appellate Jurisdiction- (substantial question) Article
132,133 and 136.
Advisory Jurisdiction – (the court report to
president- Ques of public importance- Article 143.
9
•Is a foreign transplant on Indian soil.
•Constitution of India- three types of court
•The Supreme Court of India. instrument of social
ordering – Article 32.
Chapter IV of Part V
Original jurisdiction-dispute betn centre and state.
Appellate Jurisdiction- (substantial question) Article
132,133 and 136.
Advisory Jurisdiction – (the court report to
president- Ques of public importance- Article 143.
9
HIGH COURTS
•Chapter V part VI of the const.
•Establishment
•Court of Record – power to punish
•Appointment-by the president after
consulting the CJ of India, the Governor CJ of
High Court
•Number of Judges- fixed by the president
•Qualifications –10 yrs judicial office/Adv high
court
•Tenure- 62 yrs.
Cont…..
10
•Chapter V part VI of the const.
•Establishment
•Court of Record – power to punish
•Appointment-by the president after
consulting the CJ of India, the Governor CJ of
High Court
•Number of Judges- fixed by the president
•Qualifications –10 yrs judicial office/Adv high
court
•Tenure- 62 yrs.
Cont…..
10
•Salary- prescribed 2
nd
Schedule of the
Constitution
•Conduct Discussion-not be any legislature,
Central or State except on a motion for his
removal
•Writ Jurisdiction-Article 226
•Superintendence- Article 227- over all Courts
and Tribunals within its territorial Jurisdiction.
•Subordinate courts-Chapter VI of Part Vi
•Panchayats Part IV Article 40-state organize &
73
rd
and 74
th
Amendement.
11
nd
Schedule of the
Constitution
•Conduct Discussion-not be any legislature,
Central or State except on a motion for his
removal
•Writ Jurisdiction-Article 226
•Superintendence- Article 227- over all Courts
and Tribunals within its territorial Jurisdiction.
•Subordinate courts-Chapter VI of Part Vi
•Panchayats Part IV Article 40-state organize &
73
rd
and 74
th
Amendement.
11
THE LITIGATION PROCESS
•Civil litigation
•Criminal litigation
•Alternative dispute resolution—out of court
1)Arbitration
2)Mediation
3)Conciliation
4)Negotiation
5)Lok adalat.
12
•Civil litigation
•Criminal litigation
•Alternative dispute resolution—out of court
1)Arbitration
2)Mediation
3)Conciliation
4)Negotiation
5)Lok adalat.
12
JUDICIAL PROCESS AS AN INSTUMENT OF
SOCIAL ORDERING
• judicial process & social ordering meaning
•Article 32- instrument of social ordering
•Administration of justice is application of legal principles
through the court of law.
•Cardozo, a democratic system-judicial process becomes an
instrument of social ordering.
•Every society has to maintain- rights and duties.
•Various factors play imp role in the decision making by the
courts
1.Precedent
2.Custom
3.Morality and sociology.
Judicial process 13
SOCIAL ORDERING
• judicial process & social ordering meaning
•Article 32- instrument of social ordering
•Administration of justice is application of legal principles
through the court of law.
•Cardozo, a democratic system-judicial process becomes an
instrument of social ordering.
•Every society has to maintain- rights and duties.
•Various factors play imp role in the decision making by the
courts
1.Precedent
2.Custom
3.Morality and sociology.
Judicial process 13
PRECEDENT
Judicial precedent in England with
authority: it is not merely the evidence of
law but a source of it; and the courts are
bound to follow the law that is so
established……….
14
Judicial precedent in England with
authority: it is not merely the evidence of
law but a source of it; and the courts are
bound to follow the law that is so
established……….
14
Meaning of Precedent
•Is statement of Law found in a higher judicial
decision, followed by the same court or
subordinate court.
•“law” involves and be speaks of a uniformity.
•The judges surely could hat have ignored the
mores, the customs, usages and habits of the
people.
•In Common Law of England, precedents –to
some extent, based on the recognized,
reasonable and time honored customs and
usages of the people.
15
•Is statement of Law found in a higher judicial
decision, followed by the same court or
subordinate court.
•“law” involves and be speaks of a uniformity.
•The judges surely could hat have ignored the
mores, the customs, usages and habits of the
people.
•In Common Law of England, precedents –to
some extent, based on the recognized,
reasonable and time honored customs and
usages of the people.
15
PRECEDENT AS A SOURCE OF LAW
•Precedent speaks with authority
•Principle becomes binding for future cases and
it thus becomes a source of law.
•An established rule to abide by the former
precedents where the same points come again
in litigation.
•Authoritative precedents are a legal source of
Law.
•Persuasive precedents are a historical source of
law (not a binding)
16
•Precedent speaks with authority
•Principle becomes binding for future cases and
it thus becomes a source of law.
•An established rule to abide by the former
precedents where the same points come again
in litigation.
•Authoritative precedents are a legal source of
Law.
•Persuasive precedents are a historical source of
law (not a binding)
16
Doctrine of Precedent
•Two meanings
•The strict sense – should be regarded as
authoritative and should be followed except in
certain circumstance.
•The loose sense – reported judgments of the law
courts meant to be cited, and that these
judgments will probably be followed by the
judges.
•Carry some legal principles.
•Legal principles—ratio decidendi (question of Law)
•The ratio decidendi is the heart of a precedent.
17
•Two meanings
•The strict sense – should be regarded as
authoritative and should be followed except in
certain circumstance.
•The loose sense – reported judgments of the law
courts meant to be cited, and that these
judgments will probably be followed by the
judges.
•Carry some legal principles.
•Legal principles—ratio decidendi (question of Law)
•The ratio decidendi is the heart of a precedent.
17
Nature of judicial precedent
•Is purely constitutive in nature and never
abrogative.
•Create a Law but cannot alter it.
•Judges are not at liberty to put their own
views.
•Judges can fill in the gaps and remove
imperfections of the existing laws.
18
•Is purely constitutive in nature and never
abrogative.
•Create a Law but cannot alter it.
•Judges are not at liberty to put their own
views.
•Judges can fill in the gaps and remove
imperfections of the existing laws.
18
Kinds of precedents
Four types of precedents
1)Declaratory and original precedents
• Create law are original precedents
• Declaratory of existing laws are declaratory
precedents.
2)Persuasive Precedents
• judges are under no obligation to follow
•But they must take into consideration.
•In India, the decision of one High Court are only
persuasive precedents in other High Courts.
19
Four types of precedents
1)Declaratory and original precedents
• Create law are original precedents
• Declaratory of existing laws are declaratory
precedents.
2)Persuasive Precedents
• judges are under no obligation to follow
•But they must take into consideration.
•In India, the decision of one High Court are only
persuasive precedents in other High Courts.
19
3) Absolutely Authoritative precedents
• A precedent is said to be authoritative –the
court to which cited is to bound to follow it
irrespective of the fact that the court doesn’t
agree with that decision.
•AAPs , binding character of the precedents are
absolute
•In India, every court is absolutely bound by the
decision of court superior to itself.
•E.g. – single judge—divisional judges---full
bench judges
20
• A precedent is said to be authoritative –the
court to which cited is to bound to follow it
irrespective of the fact that the court doesn’t
agree with that decision.
•AAPs , binding character of the precedents are
absolute
•In India, every court is absolutely bound by the
decision of court superior to itself.
•E.g. – single judge—divisional judges---full
bench judges
20
4) Conditionally Authoritative Precedents
•Is one which though ordinarily binding on the
court to which it is cited.
•Is liable to be disregarded in certain
circumstances
Doctrines of Precedent in Tribunals of India
•If a Bench of the Tribunal wishes to take a view
different from the one taken by the earlier
Bench,
•Propriety demands that it should place the
matter before the president of the Tribunal so
that the case is referred to a larger bench
21
•Is one which though ordinarily binding on the
court to which it is cited.
•Is liable to be disregarded in certain
circumstances
Doctrines of Precedent in Tribunals of India
•If a Bench of the Tribunal wishes to take a view
different from the one taken by the earlier
Bench,
•Propriety demands that it should place the
matter before the president of the Tribunal so
that the case is referred to a larger bench
21
Doctrine of Precedent in High Courts of India
•The decisions of a high Court binding on all
the subordinate Courts and Tribunals within
its jurisdiction
•One High Court have only a persuasive value
in a Court which is within the jurisdiction of
another High Court.
•In conflict, superior Court always prevail.
•Decision later in time to be follow appeals are
heard by a single judge—but conflict
---referred to a larger bench.
Conti……..
22
•The decisions of a high Court binding on all
the subordinate Courts and Tribunals within
its jurisdiction
•One High Court have only a persuasive value
in a Court which is within the jurisdiction of
another High Court.
•In conflict, superior Court always prevail.
•Decision later in time to be follow appeals are
heard by a single judge—but conflict
---referred to a larger bench.
Conti……..
22
•The Government of India Act 1935
•Section 212 of above Act---
The federal Court binding and they continue to
be so even after 1950 by the authority of
Article 225,Article 395
Subject to the provision……….the law
administered in any existing High Court..shall
be same as immediately before the
commencement of this constitution.
•Conflict between pre-constitution privy
council decision and a Federal Court decision,
Privy Council that would prevail.
23
•Section 212 of above Act---
The federal Court binding and they continue to
be so even after 1950 by the authority of
Article 225,Article 395
Subject to the provision……….the law
administered in any existing High Court..shall
be same as immediately before the
commencement of this constitution.
•Conflict between pre-constitution privy
council decision and a Federal Court decision,
Privy Council that would prevail.
23
The Supreme Court and the Doctrine of
Precedent
•The Supreme Court –1950
•Highest Court, the law declared by it is binding
on all courts of the country.—Article 141
•“law declared” means not only the ratio
decidendi of a decision but it includes also
obiter dictum.
•Ratio decidendi(reason of the decision)
includes – a concrete decision binding on the
parties--- the concrete, practical decision, the
force of law.
24
Precedent
•The Supreme Court –1950
•Highest Court, the law declared by it is binding
on all courts of the country.—Article 141
•“law declared” means not only the ratio
decidendi of a decision but it includes also
obiter dictum.
•Ratio decidendi(reason of the decision)
includes – a concrete decision binding on the
parties--- the concrete, practical decision, the
force of law.
24
•Obiter dicta
•Legal opinion on issues which they are not
asked to decide.
•Ratio decidendi is the general principle of the
case
•Obiter dicta is what the judge said unwantedly,
just by the way.
•OD—which does not have any binding
authority
25
•Legal opinion on issues which they are not
asked to decide.
•Ratio decidendi is the general principle of the
case
•Obiter dicta is what the judge said unwantedly,
just by the way.
•OD—which does not have any binding
authority
25
•Supreme Court is not bound by its own
decisions
•All courts in Article 141---Other than the
Supreme Court.
•Supreme Court observed that the Doctrine of
Stare Decisis is a very valuable principles of
precedent
•If departed from it there are extraordinary or
special reasons to do so.
•In Constitution– does not place any restriction
on our power to review our earlier decision.
26
decisions
•All courts in Article 141---Other than the
Supreme Court.
•Supreme Court observed that the Doctrine of
Stare Decisis is a very valuable principles of
precedent
•If departed from it there are extraordinary or
special reasons to do so.
•In Constitution– does not place any restriction
on our power to review our earlier decision.
26
Doctrine of Stare Decisis
•Means “let the decision stand in its rightful
place”.
•Maxim includes stare decisis et non quieta
movere---to stand by decisions and not to distrub
what is settled.
•Two principles
•Each court is absolutely bound by the decisions
of the courts above it.
•Higher Courts are bound by their own decision. In
India, SC is not bound by its own decision
•Doctrine of prospective overruling
27
•Means “let the decision stand in its rightful
place”.
•Maxim includes stare decisis et non quieta
movere---to stand by decisions and not to distrub
what is settled.
•Two principles
•Each court is absolutely bound by the decisions
of the courts above it.
•Higher Courts are bound by their own decision. In
India, SC is not bound by its own decision
•Doctrine of prospective overruling
27
CUSTOM
“Custom may be defined as the
uniformity of habits or conduct of
people under like circumstances”- Allen
28
“Custom may be defined as the
uniformity of habits or conduct of
people under like circumstances”- Allen
28
History
•Source of law
•In early societies- no articulated system of
law- making
•Law , we can discover
•In tradition – one generation to another
generation
•As at present- lost its efficacy as a source of
law (legal system grow)
29
•Source of law
•In early societies- no articulated system of
law- making
•Law , we can discover
•In tradition – one generation to another
generation
•As at present- lost its efficacy as a source of
law (legal system grow)
29
Kinds of Custom
•Two kinds of Customs
1.Legal – operative per se as binding rule of law. Itself the
force of law. Absolute.
I.Local – pervails in some defined locality.
narrowest sense.
In India, Local custom may be divided into two
Geographical Local Custom:
Personal Local Custom :- these customs are Law only for a
particular sect or family
II. General - all the members of a society
Keeton– General Custom must not only be reasonable but
also be followed and accepted as binding
Should not be contrary to statute law as well as the
common law of the land.
30
•Two kinds of Customs
1.Legal – operative per se as binding rule of law. Itself the
force of law. Absolute.
I.Local – pervails in some defined locality.
narrowest sense.
In India, Local custom may be divided into two
Geographical Local Custom:
Personal Local Custom :- these customs are Law only for a
particular sect or family
II. General - all the members of a society
Keeton– General Custom must not only be reasonable but
also be followed and accepted as binding
Should not be contrary to statute law as well as the
common law of the land.
30
2. Conventional Custom – According to Salmond, is one whose
authority is conditional on its acceptance and incorporation
in agreements between the parties to be bound by it.
•Is referred to as usage and legal custom
Its apply in three stages:-
1.Well established, must be proved on the basis of evidence.
2.Through a judicial decision- form of a precedent
3.After this- finally accepted as a statutory law after its
codification(development)
the Bills of Exchange and most of the provisions of the Sale of
Goods Act have their origin in the conventional custom and
usages.
Two types = General and Local CC.
LCC- are limited- particular place or particular transaction.
31
authority is conditional on its acceptance and incorporation
in agreements between the parties to be bound by it.
•Is referred to as usage and legal custom
Its apply in three stages:-
1.Well established, must be proved on the basis of evidence.
2.Through a judicial decision- form of a precedent
3.After this- finally accepted as a statutory law after its
codification(development)
the Bills of Exchange and most of the provisions of the Sale of
Goods Act have their origin in the conventional custom and
usages.
Two types = General and Local CC.
LCC- are limited- particular place or particular transaction.
31
Some condition which are fulfilled before the
Court (conventional custom incorporated in a
contract-
•It(Custom) is clearly established and fully known.
Reasonable
•No fixed period
•In India, custom need not be immemorial,
Long usage is essential
•Cannot alter the general law of the land
•Valid only within the area of the observance
•Main function- on such rights and liabilities of the
parties on which contract is silent
•May relate to any trade, or commercial dealing
which may be national or even international
32
Court (conventional custom incorporated in a
contract-
•It(Custom) is clearly established and fully known.
Reasonable
•No fixed period
•In India, custom need not be immemorial,
Long usage is essential
•Cannot alter the general law of the land
•Valid only within the area of the observance
•Main function- on such rights and liabilities of the
parties on which contract is silent
•May relate to any trade, or commercial dealing
which may be national or even international
32
Custom is one of the three source of Hindu Law.
Custom may override a statute subject to a clear
proof of usage.
Hindu Law recognizes three types of Custom:-
1.Local Custom
2.Class Custom
3.Family Custom
A Custom is repeatedly brought to the notice of
the court- the court may hold that custom- no
proof at all.
33
Custom may override a statute subject to a clear
proof of usage.
Hindu Law recognizes three types of Custom:-
1.Local Custom
2.Class Custom
3.Family Custom
A Custom is repeatedly brought to the notice of
the court- the court may hold that custom- no
proof at all.
33
Distinction between Custom and
Usage
34
Usage
34
Requisites of a Valid Local Custom
Certain requirements laid down by law in order
to be valid and operative as a source of law.
1.Reasonableness- no court will enforce an
unreasonable, prevailing custom is never
absolute, includes public justice and utility.
if it is contrary, apply principles of justice,
equity and good conscience, custom should
not be repugnant to reason, it can be refused
recognition only when opposed to public
policy.
35
Certain requirements laid down by law in order
to be valid and operative as a source of law.
1.Reasonableness- no court will enforce an
unreasonable, prevailing custom is never
absolute, includes public justice and utility.
if it is contrary, apply principles of justice,
equity and good conscience, custom should
not be repugnant to reason, it can be refused
recognition only when opposed to public
policy.
35
2. Conformity with Statute Law:-
Must not be contrary to statute law.
No custom can take away the force of an Act of
Parliament.
In England this rule is observed as a positive
principle of Law.
Savigny – customs and statutes are put on the
same level- with respect to their efficacy
Customary law may complete, modify, or repeal
a statute, it may create new rule.
36
Must not be contrary to statute law.
No custom can take away the force of an Act of
Parliament.
In England this rule is observed as a positive
principle of Law.
Savigny – customs and statutes are put on the
same level- with respect to their efficacy
Customary law may complete, modify, or repeal
a statute, it may create new rule.
36
3.Observance as a Right –
Custom as a source of law
Observed as of right
Followed openly
Obligatory force
Supported by the general public opinion
A custom that every man is to contribute—his
own pleasure.
37
Custom as a source of law
Observed as of right
Followed openly
Obligatory force
Supported by the general public opinion
A custom that every man is to contribute—his
own pleasure.
37
4. Immemorial Antiquity
Custom to have the force of law
Must be immemorial
Existed for so long a time
Any one can show the beginning of a custom, it
is no good custom
In English law – has set an arbitrary but
necessary limit to “legal memory” fixing it at
1189 AD,
In India this rule is not applicable.
38
Custom to have the force of law
Must be immemorial
Existed for so long a time
Any one can show the beginning of a custom, it
is no good custom
In English law – has set an arbitrary but
necessary limit to “legal memory” fixing it at
1189 AD,
In India this rule is not applicable.
38
5. Peaceable Enjoyment
Custom must have been enjoyed peaceably
Custom is in dispute for a long time before a
court,
It’s cannot be peaceable enjoyment.
6. Certainty
Must be certain
Which is vague or indefinite cannot be
recognized.
39
Custom must have been enjoyed peaceably
Custom is in dispute for a long time before a
court,
It’s cannot be peaceable enjoyment.
6. Certainty
Must be certain
Which is vague or indefinite cannot be
recognized.
39
7. Consistency
Must be consistency in the custom
A particular custom must not come into conflict
with the other established custom.
8. Continuity
Custom to be valid
Have been continuously in existence from time
immemorial
In England, it is essential that the custom should
not have abandoned at any time after 1189, and
then re-continued
40
Must be consistency in the custom
A particular custom must not come into conflict
with the other established custom.
8. Continuity
Custom to be valid
Have been continuously in existence from time
immemorial
In England, it is essential that the custom should
not have abandoned at any time after 1189, and
then re-continued
40
CUSTOM AND PRESCRIPTION
•Custom is a long practice operating as a source of law--
Prescription is along practiced operating as a source of
rights
•Custom is lex loci--Prescription is fixed in the person
•Course of conduct is practiced for a long time, it gives
rise to a rule of Law-(custom) whereas it(prescription)
gives rise to a right.
•A custom extends to a particular place, locality, or
community as a whole whereas Ps is of personal
nature- individual or his relatives.
•A custom originates from long usage whereas a
prescription originates from waiver of a right.
•Validity of custom, apply principles of justice and
public utility but it is not so in the case of Ps.
41
•Custom is a long practice operating as a source of law--
Prescription is along practiced operating as a source of
rights
•Custom is lex loci--Prescription is fixed in the person
•Course of conduct is practiced for a long time, it gives
rise to a rule of Law-(custom) whereas it(prescription)
gives rise to a right.
•A custom extends to a particular place, locality, or
community as a whole whereas Ps is of personal
nature- individual or his relatives.
•A custom originates from long usage whereas a
prescription originates from waiver of a right.
•Validity of custom, apply principles of justice and
public utility but it is not so in the case of Ps.
41
THEORIES OF CUSTOMARY LAW
•Customary law is established not by legislators or
professionally trained judges but by popular practice.
•Historical theory and Analytical theory-Two theories
of customary law.
•Historical theory – law has its existence -the
common consciousness of the people and customary
observance is not the cause of law but the evidence
of its existence.
•The primary source from which all law which derives
its legal efficacy & authority.
•Conduct of men from the beginning of time will
continue to govern it to the end of time.
Cont….
42
•Customary law is established not by legislators or
professionally trained judges but by popular practice.
•Historical theory and Analytical theory-Two theories
of customary law.
•Historical theory – law has its existence -the
common consciousness of the people and customary
observance is not the cause of law but the evidence
of its existence.
•The primary source from which all law which derives
its legal efficacy & authority.
•Conduct of men from the beginning of time will
continue to govern it to the end of time.
Cont….
42
•Custom is a formal source of law.
•Customary law may complete,
•Modify or repeal a statute.
•It may create new rule and substitute it for the
statutory rule which it has abolished.
•Some author said- custom did not originate from
judicial decision instead originated from the
household and relations.
•Customs posses the sanction of the people.
•In the end- custom and statute are not equal.
•Statute derives its authority from custom
•Custom is the sole source of law—face of facts.
43
•Customary law may complete,
•Modify or repeal a statute.
•It may create new rule and substitute it for the
statutory rule which it has abolished.
•Some author said- custom did not originate from
judicial decision instead originated from the
household and relations.
•Customs posses the sanction of the people.
•In the end- custom and statute are not equal.
•Statute derives its authority from custom
•Custom is the sole source of law—face of facts.
43
ANALYTICAL THEORY
•Here, custom derives its binding force not from its own
nature, but by state recognition—adopted by an Act of
Parliament.
•There is no statute law- decision before a judge
he may look into the custom for guidance.
•Custom is the first and most essential law.
•Custom enforced by courts because it is already law.—it
does not become law only by enforcement by court.
•Most of the customs are recognized not by the court but
by the community as a whole & people.
•Custom becomes a law when it is adopted by state
recognition.
•Custom is based on reasonableness.
44
•Here, custom derives its binding force not from its own
nature, but by state recognition—adopted by an Act of
Parliament.
•There is no statute law- decision before a judge
he may look into the custom for guidance.
•Custom is the first and most essential law.
•Custom enforced by courts because it is already law.—it
does not become law only by enforcement by court.
•Most of the customs are recognized not by the court but
by the community as a whole & people.
•Custom becomes a law when it is adopted by state
recognition.
•Custom is based on reasonableness.
44
IMPORTANCE OF CUSTOMARY LAW
•Custom was the sole source of law in early times.
•With the development of judicial process the imp
of custom is constantly diminishing.
•Custom has played an importance role in the
development of Law.
•In England, lex non scriptum (customary–to some
extent) lex est consuetudo- Law is English
custom.
•In India, Indian Sale of Goods Act and the Indian
Partnership Act, shall be taken subject to any
custom, usage or contract to the contrary.
45
•Custom was the sole source of law in early times.
•With the development of judicial process the imp
of custom is constantly diminishing.
•Custom has played an importance role in the
development of Law.
•In England, lex non scriptum (customary–to some
extent) lex est consuetudo- Law is English
custom.
•In India, Indian Sale of Goods Act and the Indian
Partnership Act, shall be taken subject to any
custom, usage or contract to the contrary.
45
•The law relating to
•Succession, inheritance,
•Property, contract etc. evolved from customary
rules.
•The personal laws of the Hindus in India is at
present customary law which has recognized by
judges and embodies in judicial decisions.
46
•Succession, inheritance,
•Property, contract etc. evolved from customary
rules.
•The personal laws of the Hindus in India is at
present customary law which has recognized by
judges and embodies in judicial decisions.
46
MORALITY
HISTORY
In early period- no distinction between law and
morals.
In Hindu law-no distinction between law and
morals
In the 19
th
century, Austin gave his theory that
the law has nothing to do with morals. Law is
the command of the sovereign.
In modern times, there is a change in the trend
of thought because now the sociological
approach to law indirectly studies morals also.
47
HISTORY
In early period- no distinction between law and
morals.
In Hindu law-no distinction between law and
morals
In the 19
th
century, Austin gave his theory that
the law has nothing to do with morals. Law is
the command of the sovereign.
In modern times, there is a change in the trend
of thought because now the sociological
approach to law indirectly studies morals also.
47
Nature of law
•In early law- pre state societies, was based on beliefs
and superstition. It was really not law, but quasi-law.
•After the coming of the state, customs and traditions
came to be recognized by judges.
•In England these became the common law—we have
the judge made law.
•In India, law was based on religious precepts.
•In Hindu society, law was based—with dharma-it’s
recognized legal rights & duties=morals rights &duties.
•Muslim rulers- it was the Koranic law( Mohamedan
Law comprises the customs of Arabia cleansed and
purified by the holy Prophet Muhammad.
48
•In early law- pre state societies, was based on beliefs
and superstition. It was really not law, but quasi-law.
•After the coming of the state, customs and traditions
came to be recognized by judges.
•In England these became the common law—we have
the judge made law.
•In India, law was based on religious precepts.
•In Hindu society, law was based—with dharma-it’s
recognized legal rights & duties=morals rights &duties.
•Muslim rulers- it was the Koranic law( Mohamedan
Law comprises the customs of Arabia cleansed and
purified by the holy Prophet Muhammad.
48
Nature of Morality
•Morality is an internal force
•Morality appeals to the conscience, while law acts
externally through sanctions.
•Contents of Law and Morality are often identical,
•Even contents are sometimes in conflict.
•Moralists, talked of “moral sanctions”.
•Moral sanctions are more appropriately “social
sanctions” or “internal sanctions”
•If a rule of morality is broken, then society would
look down upon the wrong-doer
•Morality does not frighten/command but enjoins
through an appeal to the conscience.
49
•Morality is an internal force
•Morality appeals to the conscience, while law acts
externally through sanctions.
•Contents of Law and Morality are often identical,
•Even contents are sometimes in conflict.
•Moralists, talked of “moral sanctions”.
•Moral sanctions are more appropriately “social
sanctions” or “internal sanctions”
•If a rule of morality is broken, then society would
look down upon the wrong-doer
•Morality does not frighten/command but enjoins
through an appeal to the conscience.
49
Morality and religion
•Intimate relation between Morality and religion
•Two are inter-dependent – it’s difficult to say-
•Morality was the product of religion or vise versa.
•Morality removed from religion some of the
fantastic, unreasonable or superstitious customs
that had crept into religion
•Religion can be distinguished from morality-
•There are external sanctions in religion, while
there are no externals threats in morality.
•Religious- reward for good actions, and
punishments for evil deeds.
•Man wills himself to be moral.
50
•Intimate relation between Morality and religion
•Two are inter-dependent – it’s difficult to say-
•Morality was the product of religion or vise versa.
•Morality removed from religion some of the
fantastic, unreasonable or superstitious customs
that had crept into religion
•Religion can be distinguished from morality-
•There are external sanctions in religion, while
there are no externals threats in morality.
•Religious- reward for good actions, and
punishments for evil deeds.
•Man wills himself to be moral.
50
RELATION BETWEEN LAW AND MORALITY
•Law is a powerful instrumentality for the
maintenance for peace.
•Law is based on public policy
•Public policy is based on some healthy principles
—healthy moral principles
•Law is meant to maintain the healthy principles
of moral law, or the positive morals of the
people.
•Law is a command
•Therefore law is maintain morality.
51
•Law is a powerful instrumentality for the
maintenance for peace.
•Law is based on public policy
•Public policy is based on some healthy principles
—healthy moral principles
•Law is meant to maintain the healthy principles
of moral law, or the positive morals of the
people.
•Law is a command
•Therefore law is maintain morality.
51
Necessary connection between Law and
Morality
•Necessarily, everyone has a duty to obey the law
of his country.
•Necessarily, everyone has a reason to obey the
law of his country.
•Necessarily, if the law is just all its subjects have
a duty to obey it.
•Necessarily, if the govtn of a country is
democratic all its subjects have a duty to obey its
law.
•Necessarily, one has an obligation to support a
just legal system
52
Morality
•Necessarily, everyone has a duty to obey the law
of his country.
•Necessarily, everyone has a reason to obey the
law of his country.
•Necessarily, if the law is just all its subjects have
a duty to obey it.
•Necessarily, if the govtn of a country is
democratic all its subjects have a duty to obey its
law.
•Necessarily, one has an obligation to support a
just legal system
52
Distinction between law and Morals
Law
•Concentrates mainly on the
society and lays down rules
concerning the relationship
of individual with each
other and with the state.
•Concerned with the
conduct of the individual for
which it lays down
standard.
•Law is to help in smooth
functioning of the society.
•Law has relative value,
time, place & so varies from
society to society
Morals
•Concerned with the individual
and lay down rules for the
moulding of his character.
•Morals look into motive, they
should be followed because
they are good in themselves.
•Morals is a matter of
individual conscience.
•Morals are considered to be of
universal value.
53
Law
•Concentrates mainly on the
society and lays down rules
concerning the relationship
of individual with each
other and with the state.
•Concerned with the
conduct of the individual for
which it lays down
standard.
•Law is to help in smooth
functioning of the society.
•Law has relative value,
time, place & so varies from
society to society
Morals
•Concerned with the individual
and lay down rules for the
moulding of his character.
•Morals look into motive, they
should be followed because
they are good in themselves.
•Morals is a matter of
individual conscience.
•Morals are considered to be of
universal value.
53
Relation between law and Morals
1. Morals as the basis of law ---
•In early societies, all rules originated from the
common source and the sanction behind them
was of the same nature.
•When the state came into being, those rules
which were important of the society.
•State put its own sanction and then enforced
them.
•These rules came to be known as “law”
•Both law and morals originated from the same
source but in the course of their development
they differed from each other.
54
1. Morals as the basis of law ---
•In early societies, all rules originated from the
common source and the sanction behind them
was of the same nature.
•When the state came into being, those rules
which were important of the society.
•State put its own sanction and then enforced
them.
•These rules came to be known as “law”
•Both law and morals originated from the same
source but in the course of their development
they differed from each other.
54
Morals as the test of law
•In the 17
th
& 18
th
century- law must conform to
natural law.
•In modern times, law must conform to morals,
if it is not then it’s not valid and binding, does
not hold good.
•If the legal standards are too high, there are
great difficulties of enforcement.
55
•In the 17
th
& 18
th
century- law must conform to
natural law.
•In modern times, law must conform to morals,
if it is not then it’s not valid and binding, does
not hold good.
•If the legal standards are too high, there are
great difficulties of enforcement.
55
Morals as the End of Law
•Morals have been often considered to be the
end of Law.
•Law is defined in terms of “justice” by many
jurists.
•The aim of law to secure justice which is very
much based upon morals.
•The law has always a purpose, it is a means to
an end and this end is the welfare of society.
56
•Morals have been often considered to be the
end of Law.
•Law is defined in terms of “justice” by many
jurists.
•The aim of law to secure justice which is very
much based upon morals.
•The law has always a purpose, it is a means to
an end and this end is the welfare of society.
56
Influence of Morals on Law
•The law of every modern state- the influence of
both the accepted social morality and wider
moral ideals.
•In the United States, the ultimate criteria of legal
validity--- incorporate principles of justice or
substantive moral values.
•At last, problems would be found in all branches
of philosophy,…….
57
•The law of every modern state- the influence of
both the accepted social morality and wider
moral ideals.
•In the United States, the ultimate criteria of legal
validity--- incorporate principles of justice or
substantive moral values.
•At last, problems would be found in all branches
of philosophy,…….
57
SOCIOLOGY
•1. The study of human social behavior,
especially the study of the origins,
organization, institutions, and development of
human society.
•2. Analysis of a social institution or societal
segment as a self-contained entity or in
relation to society as a whole.
•Sociology of law is a diverse field of study
•Examines the interaction of law with society
•Includes philosophy of law, social theory, and
criminology.
58
•1. The study of human social behavior,
especially the study of the origins,
organization, institutions, and development of
human society.
•2. Analysis of a social institution or societal
segment as a self-contained entity or in
relation to society as a whole.
•Sociology of law is a diverse field of study
•Examines the interaction of law with society
•Includes philosophy of law, social theory, and
criminology.
58
•Institutions of social construction, social norms,
dispute processing and legal culture.
•Includes law and society(socio-legal studies)
•Philosophy, history and custom may give its
consistency.
•Everything must be subordinated to the end of
social justice or welfare of the society.
•Sociology is especially fruitful in the process of
constitutional law, certain branches of private
law and the welfare legislation.
•Law can be extensive used as an instrument of
social change---effective method of social
control.
59
dispute processing and legal culture.
•Includes law and society(socio-legal studies)
•Philosophy, history and custom may give its
consistency.
•Everything must be subordinated to the end of
social justice or welfare of the society.
•Sociology is especially fruitful in the process of
constitutional law, certain branches of private
law and the welfare legislation.
•Law can be extensive used as an instrument of
social change---effective method of social
control.
59
JUDICIAL PROCESS AND CREATIVITY IN
LAW
• source of law is used different senses
•Source is origin .
•Source of law 1) material and formal
•Material –legal and Historical
•Legal 1) legislation 2)precedent 3)custom
4)agreement and Professional opinion.
• formal sources are the law derives its force and
validity.—will of the state.
•Material sources are 2 types conti…
60
LAW
• source of law is used different senses
•Source is origin .
•Source of law 1) material and formal
•Material –legal and Historical
•Legal 1) legislation 2)precedent 3)custom
4)agreement and Professional opinion.
• formal sources are the law derives its force and
validity.—will of the state.
•Material sources are 2 types conti…
60
•Legal sources are those which are recognized as
such by the law itself.
•Historical material source are unauthoritative
lacking formal recognition by the law.
•They have no legal recognition.
LEGAL SOURCES OF LAW ARE–
•Reasonable immemorial customs
•Judicial decisions
•Acts of legislature
•Equity
•conventions
61
such by the law itself.
•Historical material source are unauthoritative
lacking formal recognition by the law.
•They have no legal recognition.
LEGAL SOURCES OF LAW ARE–
•Reasonable immemorial customs
•Judicial decisions
•Acts of legislature
•Equity
•conventions
61
Source of law in India
•Prior British rule in India, Hindus and Muslims
–population of this country—were governed
by their personal laws.
•Original Hindu law -4 sources of law
I.The Sruti;
II.The Smritis:
III.The conduct of the virtuous, and
IV.One’s own conscience.
62
•Prior British rule in India, Hindus and Muslims
–population of this country—were governed
by their personal laws.
•Original Hindu law -4 sources of law
I.The Sruti;
II.The Smritis:
III.The conduct of the virtuous, and
IV.One’s own conscience.
62
•The primary sources of Mohammedan law—
I.Quran;
II.Sunnat and Ahadis;
III.Ijma, and
IV.Qiyas .
Classification of Sources
•The binding source of law
•Persuasive sources
63
I.Quran;
II.Sunnat and Ahadis;
III.Ijma, and
IV.Qiyas .
Classification of Sources
•The binding source of law
•Persuasive sources
63
Law and society
•Indian legal system is dependence on colonial rule.
•The practice of the British legal system created
conflict between old laws and modern notions of
justice------Justice Krishna Iyer.
•Law is a social science—linked with society.
•A society cannot remain static but it keeps on
changing with economic, scientific and
technological developments.
•Law and society gave inspiration---therefore
pronounced sociological theory for the study of
law.
64
•Indian legal system is dependence on colonial rule.
•The practice of the British legal system created
conflict between old laws and modern notions of
justice------Justice Krishna Iyer.
•Law is a social science—linked with society.
•A society cannot remain static but it keeps on
changing with economic, scientific and
technological developments.
•Law and society gave inspiration---therefore
pronounced sociological theory for the study of
law.
64
•Law depends on popular acceptance which has a
great creative force.
•Law consists not of propositions alone, but of
legal institutions which people cherish in the
society.
•Law is not a branding omnipotence in the sky but
a flexible instrument of social order,
•The law should keep on changing along with the
changing social order.
•New added and old should be discarded-time to
time.
•This change is known as the dynamic of law.
65
great creative force.
•Law consists not of propositions alone, but of
legal institutions which people cherish in the
society.
•Law is not a branding omnipotence in the sky but
a flexible instrument of social order,
•The law should keep on changing along with the
changing social order.
•New added and old should be discarded-time to
time.
•This change is known as the dynamic of law.
65
LAW ANF THE LEGISLATION (THE
CONSTITUTION)
•British rule in India, development of native law
was very slow.
•Britisher were orthodox(their rule and
regulations)
•1950—const of India, independence of the
country created a new era.
•Social economic changes in the country.—new
challenges before the nation
•At present gap- between poor and the rich.—
weaker section of the society, prevent
exploitation, corruption etc,.
66
CONSTITUTION)
•British rule in India, development of native law
was very slow.
•Britisher were orthodox(their rule and
regulations)
•1950—const of India, independence of the
country created a new era.
•Social economic changes in the country.—new
challenges before the nation
•At present gap- between poor and the rich.—
weaker section of the society, prevent
exploitation, corruption etc,.
66
Objectives of the constitution
•Legislative process started for bringing about
socio-economic changes for all round rural
upliftment.
•Village Panchayat.
•Improvement of agriculture, horticulture and
animal husbandry, schemes, project and
programmed have been launched.
•Numerous labour legislations have been
enacted
67
•Legislative process started for bringing about
socio-economic changes for all round rural
upliftment.
•Village Panchayat.
•Improvement of agriculture, horticulture and
animal husbandry, schemes, project and
programmed have been launched.
•Numerous labour legislations have been
enacted
67
•The supreme court of India – guarantor and
protector of the fundamental rights &
interpreter of the constitution
•Constitutional duty to secure socio-economic &
political justice to all the citizens of the country.
•Judicial activism had interpreted the law.
•Art 12- other authorities, Maneka Gandhi case
expand the fundtl rts.
•Directive Principles of state policy
68
protector of the fundamental rights &
interpreter of the constitution
•Constitutional duty to secure socio-economic &
political justice to all the citizens of the country.
•Judicial activism had interpreted the law.
•Art 12- other authorities, Maneka Gandhi case
expand the fundtl rts.
•Directive Principles of state policy
68
•Public interest litigation-social Action
litigation.
1.Protection of the weaker sections of society-
Art.32
2.Protection of Ecology and Environmental
Pollution
3.Securing Human Rights and Dignity
4.Matters of Public Interest
5.Granting of Reliefs
69
litigation.
1.Protection of the weaker sections of society-
Art.32
2.Protection of Ecology and Environmental
Pollution
3.Securing Human Rights and Dignity
4.Matters of Public Interest
5.Granting of Reliefs
69
Procedure for PIL
•May not apply strict rules in case of PIL.
•There must be sufficient material in the
petition
•Onus of providing specific data
•Documentary evidence to substantial
evidence is on the petitioner.
Character of Judgment in PIL
Judgment in rem
Issue of notice is not necessary in every case.
70
•May not apply strict rules in case of PIL.
•There must be sufficient material in the
petition
•Onus of providing specific data
•Documentary evidence to substantial
evidence is on the petitioner.
Character of Judgment in PIL
Judgment in rem
Issue of notice is not necessary in every case.
70
Interaction of social forces and law
•Tend to mould each other
•In a democracy-
•Social opinion and the law moulding activities
of the state is more obvious and articulate
one.
•Public opinion- not only through elected
representatives in the Legislative Assemblies,
•But also public discussion in press, media,
radio, public lectures,……other channels
71
•Tend to mould each other
•In a democracy-
•Social opinion and the law moulding activities
of the state is more obvious and articulate
one.
•Public opinion- not only through elected
representatives in the Legislative Assemblies,
•But also public discussion in press, media,
radio, public lectures,……other channels
71
LAW AND SOCIAL CHANGE
•In a changing society,
•Law cannot afford to remain static.
•Law takes its own time to articulate social
changes through a process of amendment.
•Social group play a vital role.
•Indian societies applies- with changing norms of
legitimacy in every society.
•The history of development of Hindu Law,-----
it was never static, changed from time to time
to meet challenges of the changing social
pattern at different time.
72
•In a changing society,
•Law cannot afford to remain static.
•Law takes its own time to articulate social
changes through a process of amendment.
•Social group play a vital role.
•Indian societies applies- with changing norms of
legitimacy in every society.
•The history of development of Hindu Law,-----
it was never static, changed from time to time
to meet challenges of the changing social
pattern at different time.
72
Rule of law is a Dynamic concept
•Adjustment of law to social needs is a continuing
process.
•Law must always be responsive to the social
development.
•Continuing process requires a watchful
legislature and an alert judiciary.
Need for certainty in Law
•The law should be clear & certain so that people
know, where they stand and conduct their affairs
•Mathematically accurate classification cannot be
done.
•Reasonable & rational applies , should not be
allowed vagueness and uncertainty.
73
•Adjustment of law to social needs is a continuing
process.
•Law must always be responsive to the social
development.
•Continuing process requires a watchful
legislature and an alert judiciary.
Need for certainty in Law
•The law should be clear & certain so that people
know, where they stand and conduct their affairs
•Mathematically accurate classification cannot be
done.
•Reasonable & rational applies , should not be
allowed vagueness and uncertainty.
73
LEGAL AID
•Means giving to persons of limited means gratis or
nominal fees.
•Legal advice & legal assistance in civil and criminal
matters.
•Preamble justice, social, economic and political
•Dignity of the individual and the unity of the Nation
•Articles 14 and 38 of the constitution provide-
•Equality of justice to all citizens.
•Article 39-A legal aid—SC play role on it.
•Lok Adalats.-legal Services Authorities Act, 1987.
----------------------------------***-------------------------------
74
•Means giving to persons of limited means gratis or
nominal fees.
•Legal advice & legal assistance in civil and criminal
matters.
•Preamble justice, social, economic and political
•Dignity of the individual and the unity of the Nation
•Articles 14 and 38 of the constitution provide-
•Equality of justice to all citizens.
•Article 39-A legal aid—SC play role on it.
•Lok Adalats.-legal Services Authorities Act, 1987.
----------------------------------***-------------------------------
74
STATUTORY AND CODIFIED SYSTEM
CODIFICATION
“Code” means s systematic collection of statutes,
body of laws, so arranged as to avoid
inconsistency and overlapping.
•Compilation
•Promulgation
•Collection
•Systematization of the body of law in a coherent
form by an competent state.
75
CODIFICATION
“Code” means s systematic collection of statutes,
body of laws, so arranged as to avoid
inconsistency and overlapping.
•Compilation
•Promulgation
•Collection
•Systematization of the body of law in a coherent
form by an competent state.
75
•The reduction of the whole corpus juris (law
store)so far as practicable, in the form of
enacted law.
•In England, Bentham- very strongly pleaded
legislation and precedent.
•In India, the code of Manu is a very ancient
code.
•Britishers paid attention- codification
•Provisions of the Charter Act of 1833- 1
st
Indian Commission chairman Lord Macaulay-
•Drafted a number of codes IPC,CPC,ILA
76
store)so far as practicable, in the form of
enacted law.
•In England, Bentham- very strongly pleaded
legislation and precedent.
•In India, the code of Manu is a very ancient
code.
•Britishers paid attention- codification
•Provisions of the Charter Act of 1833- 1
st
Indian Commission chairman Lord Macaulay-
•Drafted a number of codes IPC,CPC,ILA
76
•2
nd
Law Commission established and many acts
were passed
•1861 &1879 Law Commissions were again set up
& passed many Act like
•CrPC & IPC were passed and revised.
Condition for codification
•A certain background and a certain stage of social
development are necessary.
•The uncertainty character of the existing law.
•The development of an efficient organ of
legislation
•The needs for one uniform law in a political
community or received divergent locals laws.
77
nd
Law Commission established and many acts
were passed
•1861 &1879 Law Commissions were again set up
& passed many Act like
•CrPC & IPC were passed and revised.
Condition for codification
•A certain background and a certain stage of social
development are necessary.
•The uncertainty character of the existing law.
•The development of an efficient organ of
legislation
•The needs for one uniform law in a political
community or received divergent locals laws.
77
Classification of codesSeys lfyd ’RA:tOeAeCALeSEUesnted
Os
esoRteLosnEJseArDe
UtStUtr-tesEeArDeEsntUeCALH
P
fALeRA:orkeBDeCtkoOCAsJUt
P
GHkHePrioAreKtrACeFEitH
SrDtrnlIs lDmdW -ErOECoiAstOeLnECteCALIeOsAsJsEUDce
-JOsERAUDeArieNUt-titrsc
P
wDOstRAso-ACCDeArieOoRNCoSDorkesnteCALc
P
GHkHeMUArOStUeESeKUENtUsDex-scdyy)
Seys lfydsDIdSrDtrnlIs lDmdW RA:teCALeAOeLtCCeAOe
-ErOECoiAstesntetFoOsorkeCALeEreAeNAUso-JCAUeOJBYt-sH
P
GHkHesnteUt-trse4oriJeftkoOCAsoEr
Creative –makes a law for the 1
st
time without any
reference to any other law.
•Law making by legislature
•E.g. Indian Penal Code.
Consolidating –consolidates whole law- statutory,
customary and precedent,
•Systematically and simplifying the law,
•E.g. Transfer of Property Act,1882
Creative and Consolidating –make law as well as
consolidate the existing law on a particular subject.
•E.g. the recent Hindu Legislation
78
Os
esoRteLosnEJseArDe
UtStUtr-tesEeArDeEsntUeCALH
P
fALeRA:orkeBDeCtkoOCAsJUt
P
GHkHePrioAreKtrACeFEitH
SrDtrnlIs lDmdW -ErOECoiAstOeLnECteCALIeOsAsJsEUDce
-JOsERAUDeArieNUt-titrsc
P
wDOstRAso-ACCDeArieOoRNCoSDorkesnteCALc
P
GHkHeMUArOStUeESeKUENtUsDex-scdyy)
Seys lfydsDIdSrDtrnlIs lDmdW RA:teCALeAOeLtCCeAOe
-ErOECoiAstesntetFoOsorkeCALeEreAeNAUso-JCAUeOJBYt-sH
P
GHkHesnteUt-trse4oriJeftkoOCAsoEr
Creative –makes a law for the 1
st
time without any
reference to any other law.
•Law making by legislature
•E.g. Indian Penal Code.
Consolidating –consolidates whole law- statutory,
customary and precedent,
•Systematically and simplifying the law,
•E.g. Transfer of Property Act,1882
Creative and Consolidating –make law as well as
consolidate the existing law on a particular subject.
•E.g. the recent Hindu Legislation
78
Merits of Codification
•Necessary and useful for the development of
society
1.Certainty –no vague and uncertain—is in
precedent and custom
2.Simplicity –makes law simple and accessible
to everybody-citizens know their Rts and
duties.
3.Logical Arrangement—no chance of conflict
or inconsistency arising among different
provisions of the law. Cont……..
79
•Necessary and useful for the development of
society
1.Certainty –no vague and uncertain—is in
precedent and custom
2.Simplicity –makes law simple and accessible
to everybody-citizens know their Rts and
duties.
3.Logical Arrangement—no chance of conflict
or inconsistency arising among different
provisions of the law. Cont……..
79
4. Stability –makes the law simple and stable.
•stability is very essential for law.
•People may have confidence in it.
•The legal transactions may be made easy.
5. Planned Development –codification brings
uniformity, planned development of the
country.
6. Unity –uniform and wider application.
•Developing affinity and unity among the
people---governed by the same laws.
80
•stability is very essential for law.
•People may have confidence in it.
•The legal transactions may be made easy.
5. Planned Development –codification brings
uniformity, planned development of the
country.
6. Unity –uniform and wider application.
•Developing affinity and unity among the
people---governed by the same laws.
80
Demerits of Codification
•Rigidity –the codification causes rigidity in the
law.
•Changing condition in society---law must be
change ----becomes difficult----only amendments
—(its not easy and time consuming)
•Incompleteness—not possible to anticipate all
the problems(future)—the codes are incomplete
•New problem arise—difficult for the people and
courts to tackle it.—solution—but not uniformity
to all cases.
81
•Rigidity –the codification causes rigidity in the
law.
•Changing condition in society---law must be
change ----becomes difficult----only amendments
—(its not easy and time consuming)
•Incompleteness—not possible to anticipate all
the problems(future)—the codes are incomplete
•New problem arise—difficult for the people and
courts to tackle it.—solution—but not uniformity
to all cases.
81
•Hardship –codes gives uniform laws—
applicable to all----territory of the country.
•Rarely on the ground of convictions, custom
and habits of the individuals
•Some cases, causes great hardship.
•Defective Codes –certain defects are bound to
remain in a code
•Cannot be removed except by a legislative
amendments.
•It causes great delay and inconvenience.
82
applicable to all----territory of the country.
•Rarely on the ground of convictions, custom
and habits of the individuals
•Some cases, causes great hardship.
•Defective Codes –certain defects are bound to
remain in a code
•Cannot be removed except by a legislative
amendments.
•It causes great delay and inconvenience.
82
INTERPRETATION OF STATUTESP
lECEyEsntCUstPCUsJyIIHteUCA-tyRo
P
lIrIkILegb duIJe eJIrIdLu t nt Eist RUrPsnnt OHt Ai Pit
PryUEnt -EsURUsEtC-etCRRIHt fJmdnfrIdLu Y
P
u-EsURUsECE r-t nt rJEs-t -sPsnnCUHt Ais-t Ct PCnst
-brIbsntCt nECEyEs o
P
EisUst nt nrDst CDO dy EH t rUt bCdys-snn t -t Eist
ArUent rJt Eist nECEyEst EiCEt DynEt Ost UsnrIbset OHt Eist
Yyedso
P
u-t PrDDr-tICA t YyU ne PE r-nat Eist Yye P CUH t DCHt
CRRIHt UyIsnt rJt nECEyErUHt -EsURUsECE r-t Ert
Isd nICE r-t s-CPEset OHt Eist Isd nICEyUs t rUt Ert
esIsdCEsetIsd nICE r- t nyPit Cnt CeD - nEUCE bst
Cds-PHt UsdyICE r-n o
•Statutes are carefully drawn up.
•Statutory interpretation is the process by which
courts interpret and apply legislation.
•Interpretation is often necessary when a case
involves a statute.
•there is some ambiguity or vagueness in the
words of the statute that must be resolved by the
judge.
•In common law jurisdictions, the judiciary may
apply rules of statutory interpretation to
legislation enacted by the legislature or to
delegated legislation such as administrative
agency regulations.
83
lECEyEsntCUstPCUsJyIIHteUCA-tyRo
P
lIrIkILegb duIJe eJIrIdLu t nt Eist RUrPsnnt OHt Ai Pit
PryUEnt -EsURUsEtC-etCRRIHt fJmdnfrIdLu Y
P
u-EsURUsECE r-t nt rJEs-t -sPsnnCUHt Ais-t Ct PCnst
-brIbsntCt nECEyEs o
P
EisUst nt nrDst CDO dy EH t rUt bCdys-snn t -t Eist
ArUent rJt Eist nECEyEst EiCEt DynEt Ost UsnrIbset OHt Eist
Yyedso
P
u-t PrDDr-tICA t YyU ne PE r-nat Eist Yye P CUH t DCHt
CRRIHt UyIsnt rJt nECEyErUHt -EsURUsECE r-t Ert
Isd nICE r-t s-CPEset OHt Eist Isd nICEyUs t rUt Ert
esIsdCEsetIsd nICE r- t nyPit Cnt CeD - nEUCE bst
Cds-PHt UsdyICE r-n o
•Statutes are carefully drawn up.
•Statutory interpretation is the process by which
courts interpret and apply legislation.
•Interpretation is often necessary when a case
involves a statute.
•there is some ambiguity or vagueness in the
words of the statute that must be resolved by the
judge.
•In common law jurisdictions, the judiciary may
apply rules of statutory interpretation to
legislation enacted by the legislature or to
delegated legislation such as administrative
agency regulations.
83
•Meaning
•Words are imperfect symbols to communicate
intent. They are ambiguous and change in
meaning over time.
•Unforeseen situations are inevitable, and new
technologies and cultures make application of
existing laws difficult.
•Uncertainties may be added to the statute in
the course of enactment, such as the need for
compromise or catering to special
interest groups.
84
•Words are imperfect symbols to communicate
intent. They are ambiguous and change in
meaning over time.
•Unforeseen situations are inevitable, and new
technologies and cultures make application of
existing laws difficult.
•Uncertainties may be added to the statute in
the course of enactment, such as the need for
compromise or catering to special
interest groups.
84
Interpretation is of two kinds
1.Literal intrepretation (grammatical); - literal
construction of law.
Reasonable manner,
2. Functional interpretation (logical)
•Conflicts between sources of law
•Internal and external consistency
•Statements of the legislature
•Ejusdem generis ("of the same kinds, class, or
nature") car ,motor bikes etc…..(vehical)
85
1.Literal intrepretation (grammatical); - literal
construction of law.
Reasonable manner,
2. Functional interpretation (logical)
•Conflicts between sources of law
•Internal and external consistency
•Statements of the legislature
•Ejusdem generis ("of the same kinds, class, or
nature") car ,motor bikes etc…..(vehical)
85
•Strict and Equitable interpretation
•Restrictive and Extensive Interpretation
•Logical Interpretation
•Historical interpretation
•Equity of statute
------------------------************-----------------
86
•Restrictive and Extensive Interpretation
•Logical Interpretation
•Historical interpretation
•Equity of statute
------------------------************-----------------
86
PUBLIC INTEREST LITIGATION
•Introduction
•Legal history—emergency provision 1975-77
U.S.A.– prior to 1980---1
st
reported case of PIL
1979—Husainara Khatoon V. state of Bihar.---
S.P. Gupta V. U.O.I---1981 case of Anil Yadav
V. State of Bihar
•Meaning –a legal action ---relates public
interest and general interest.
87
•Introduction
•Legal history—emergency provision 1975-77
U.S.A.– prior to 1980---1
st
reported case of PIL
1979—Husainara Khatoon V. state of Bihar.---
S.P. Gupta V. U.O.I---1981 case of Anil Yadav
V. State of Bihar
•Meaning –a legal action ---relates public
interest and general interest.
87
•People’s union for Democratic Rights V. union
of India.
•Rule of Law
•Concept of PIL----Article 32 &226.
•Writ jurisdiction under above Articles
•Explain five types of writs
•Subjects of PIL-public interest, labour matters,
matters of neglected children
•Procedure for filing PIL-a) filing b) the
procedure
88
of India.
•Rule of Law
•Concept of PIL----Article 32 &226.
•Writ jurisdiction under above Articles
•Explain five types of writs
•Subjects of PIL-public interest, labour matters,
matters of neglected children
•Procedure for filing PIL-a) filing b) the
procedure
88
•Against whom PIL can be filed
•Aspects of PIL-a)remedial in nature b)
representative standing c) citizen standing d)
non-adversarial litigation
•Recent development
•significant part of judicial process
•Conclusion
-------------------*******************--------------
89
•Aspects of PIL-a)remedial in nature b)
representative standing c) citizen standing d)
non-adversarial litigation
•Recent development
•significant part of judicial process
•Conclusion
-------------------*******************--------------
89
JUDICIAL ACTIVISMROEHc-BAERcO
P
Gye P CIte nPUsE r-tPC--rEtOstdy esetOHt
sgRse s-PHot
P
kryUEntCUst-rEtJUsstJUrDtnECEyErUHtICAo
P
YynE PstUs-esUsetCPPrUe -dtErtICAo
P
GyedsntCUst-rEts-E EIsetErte nPUsE r-CUHo
P
Gye P CIte nPUsE r-tDynEtOstICAtC-etrUesUtC-et
EistRU -P RIsno
INTRODUCTION
•Judicial discretion cannot be guided by
expediency.
•Courts are not free from statutory law.
•justice rendered according to law.
•Judges are not entitled to discretionary.
•Judicial discretion must be law and order and
the principles.
90
P
Gye P CIte nPUsE r-tPC--rEtOstdy esetOHt
sgRse s-PHot
P
kryUEntCUst-rEtJUsstJUrDtnECEyErUHtICAo
P
YynE PstUs-esUsetCPPrUe -dtErtICAo
P
GyedsntCUst-rEts-E EIsetErte nPUsE r-CUHo
P
Gye P CIte nPUsE r-tDynEtOstICAtC-etrUesUtC-et
EistRU -P RIsno
INTRODUCTION
•Judicial discretion cannot be guided by
expediency.
•Courts are not free from statutory law.
•justice rendered according to law.
•Judges are not entitled to discretionary.
•Judicial discretion must be law and order and
the principles.
90
•Evolution of judicial activism in India-difficult
to origin—since judiciary has come—under
the Govt of India Act,1935—subsequent to
1935 under the High Courts Act, 1861
exhibited certain flashes of Judicial Activism
•Justice Mahmood of the Allahabad H.C(the
seed for judicial activism in India)
•1950-basic structure of the constitution.
•21 H.Courts & S.C at the apex—Indira Gandhi
case.
•Concept of state—locus standi—Art.141, Art
21,
91
to origin—since judiciary has come—under
the Govt of India Act,1935—subsequent to
1935 under the High Courts Act, 1861
exhibited certain flashes of Judicial Activism
•Justice Mahmood of the Allahabad H.C(the
seed for judicial activism in India)
•1950-basic structure of the constitution.
•21 H.Courts & S.C at the apex—Indira Gandhi
case.
•Concept of state—locus standi—Art.141, Art
21,
91
•Definition –way of exercising judicial power
which seeks fundtl recodification of power
relations among the dominant institutions of
state, manned by members of the ruling classes.
•Judicial activism and judicial restraint are the –
assertiveness of judicial power.
•U.S. the concept of judicial activism
•Reasons for judicial Activism.
•Near collapse of responsible government-Article
50
•Pressure on judiciary to step in aid—protect
their fundtl rts and freedoms
92
which seeks fundtl recodification of power
relations among the dominant institutions of
state, manned by members of the ruling classes.
•Judicial activism and judicial restraint are the –
assertiveness of judicial power.
•U.S. the concept of judicial activism
•Reasons for judicial Activism.
•Near collapse of responsible government-Article
50
•Pressure on judiciary to step in aid—protect
their fundtl rts and freedoms
92
•Judicial enthusiasm to participate in social
reform and change.—PIL,
•Legislative vacuum left open—parliament &
state legislatures—make law for 24 hours a
day and 365 days in a year---cannot be
sufficient to changing need of the society.
•The constitutional scheme—Article 13,Article
32 &131,132 to 137. Articles 142,143, 145
&129.
•Authority to make final declaration as to
validity of a law.—Article 141—indra sawney
v. u.o.i.
93
reform and change.—PIL,
•Legislative vacuum left open—parliament &
state legislatures—make law for 24 hours a
day and 365 days in a year---cannot be
sufficient to changing need of the society.
•The constitutional scheme—Article 13,Article
32 &131,132 to 137. Articles 142,143, 145
&129.
•Authority to make final declaration as to
validity of a law.—Article 141—indra sawney
v. u.o.i.
93
•Role of judiciary as guardian of fundamental
rights—Articles 13, 32 to 35 and 226.
•Public confidence in the judiciary.
•A framework for the Analysis of Judicial
Activism— different between India and U.S.A
•Different dimensions of judicial Activism—
1.Majoritarianism—S.C.—judicial review—
unconstitutional.
2.Interpretive stability—A.k.gopalan, Maneka
Gandhi's, E.p.royappa case,
94
rights—Articles 13, 32 to 35 and 226.
•Public confidence in the judiciary.
•A framework for the Analysis of Judicial
Activism— different between India and U.S.A
•Different dimensions of judicial Activism—
1.Majoritarianism—S.C.—judicial review—
unconstitutional.
2.Interpretive stability—A.k.gopalan, Maneka
Gandhi's, E.p.royappa case,
94
3. substance- Democratic process Distinction—
doctrine of legitimate expectations
4. Specificity of policy—positive policy e.g. Taj
Mahal
5. Availability of an alternate policy maker—
judicial review---vishake’s case.
6. Typical examples of judicial Activism in India–
Article 368 keshvananda bharti case, --Art 143 ,
142 (1), 129 and124.
7. Judicial activism in India 1980’s---emergency
1975
8. Basic structure—supremacy of const, democratic
form of govt, separation of power between 3
organs etc
95
doctrine of legitimate expectations
4. Specificity of policy—positive policy e.g. Taj
Mahal
5. Availability of an alternate policy maker—
judicial review---vishake’s case.
6. Typical examples of judicial Activism in India–
Article 368 keshvananda bharti case, --Art 143 ,
142 (1), 129 and124.
7. Judicial activism in India 1980’s---emergency
1975
8. Basic structure—supremacy of const, democratic
form of govt, separation of power between 3
organs etc
95
9. Fundamental rights
10. Personal liberty and judicial Activism—
Articles 19 (1)(d), 21.
11. Menaka Gandhi v. UOI—Indian judicial
Activism
Judicial Activism of Supreme Court—Changing
Facet of Divertive.P. and fundamental rights
after 1980S.P
Equal pay for equal work
Rights of children
Right to free legal aid
96
10. Personal liberty and judicial Activism—
Articles 19 (1)(d), 21.
11. Menaka Gandhi v. UOI—Indian judicial
Activism
Judicial Activism of Supreme Court—Changing
Facet of Divertive.P. and fundamental rights
after 1980S.P
Equal pay for equal work
Rights of children
Right to free legal aid
96
•Right to Health care of citizens
•Right to Education
•Right to pollution free environment
JUDICIAL ACTIVISM IN INDIA AND EMERGING TRENDS
Article 324-election Duty and education
Public interest limitation---limits and limitation
Privileges of parliament and judicial review
Affirmative action and its limits
Article 21 and 247—speedy justice
Judicial legislation—Article 21
Role of judicial Activism
--------------------------**************---------------------------
97
•Right to Education
•Right to pollution free environment
JUDICIAL ACTIVISM IN INDIA AND EMERGING TRENDS
Article 324-election Duty and education
Public interest limitation---limits and limitation
Privileges of parliament and judicial review
Affirmative action and its limits
Article 21 and 247—speedy justice
Judicial legislation—Article 21
Role of judicial Activism
--------------------------**************---------------------------
97
DHARMA
•In India the development of jurisprudence—
Hindu law,--western jurists and legal
philosophers.
•Indian jurists—narmada, jaimini, Yagnavalkya,
Manu , kane, Kautilya were there.
•These thinkers developed their own system of
law
•In the 20
th
contury indain Jurists, Dr BR
Ambedkar, PV Gajendragadkar, PN Bhagvati,
chagla, Krishna Iyer—developed legal system
and principles of reasoning and human being.
98
•In India the development of jurisprudence—
Hindu law,--western jurists and legal
philosophers.
•Indian jurists—narmada, jaimini, Yagnavalkya,
Manu , kane, Kautilya were there.
•These thinkers developed their own system of
law
•In the 20
th
contury indain Jurists, Dr BR
Ambedkar, PV Gajendragadkar, PN Bhagvati,
chagla, Krishna Iyer—developed legal system
and principles of reasoning and human being.
98
Dharma or Law
Hindu legal works, the word for law is Dharma
Dharma means—sustains or holds
English Writers ---Dharma—includes religious,
moral, social and legal duties and can only be
defined by its contents.
Hindu scriptures—Dharma stands religious
rights, fixed principles of rules of conduct and
the whole body of religious duties.
99
Hindu legal works, the word for law is Dharma
Dharma means—sustains or holds
English Writers ---Dharma—includes religious,
moral, social and legal duties and can only be
defined by its contents.
Hindu scriptures—Dharma stands religious
rights, fixed principles of rules of conduct and
the whole body of religious duties.
99
Hindu legal theory is Hindu Dharmasastra
•Hindu jurisprudence is rooted in Hindu religion
and custom
•Personal law of Mahomedans
•Truths of Hinduism are Brahma(God)—
Dharma(conformity with a man’s inner and true
nature) Karma(act accruing merits and demerits
according to Dharma)
•Man has to do Karma
•Go along the path of Dharma & attain Brahma—
called Moksha.
• when he attains Brahma or Moksha he is
governed by the Dharmasastras, or law.
•Muslim too have accepted the Koran or God’s
words---source of their Law
100
•Hindu jurisprudence is rooted in Hindu religion
and custom
•Personal law of Mahomedans
•Truths of Hinduism are Brahma(God)—
Dharma(conformity with a man’s inner and true
nature) Karma(act accruing merits and demerits
according to Dharma)
•Man has to do Karma
•Go along the path of Dharma & attain Brahma—
called Moksha.
• when he attains Brahma or Moksha he is
governed by the Dharmasastras, or law.
•Muslim too have accepted the Koran or God’s
words---source of their Law
100
•Jamini’s view-conducive to the welfare of the
society.---According to him—Dharma-
ordained by the Vedas.---Dharma includes 3
things, relation, duty and inseparable quality
of a thing or order.
1.1
st
, religion—to the law of God.
2.2
nd
, Dharma stands for duty or Kartavya
3.3
rd
,Dharma connotes essential characteristic
features of a thing or object.
101
society.---According to him—Dharma-
ordained by the Vedas.---Dharma includes 3
things, relation, duty and inseparable quality
of a thing or order.
1.1
st
, religion—to the law of God.
2.2
nd
, Dharma stands for duty or Kartavya
3.3
rd
,Dharma connotes essential characteristic
features of a thing or object.
101
•Sources of Dharma- law is discoverable by reason
because the will of God & human reason coincide.
•Smritikar(those person who were learned in the Vedas)
laid down 4 sources of law-Veda, Smriti, Sadachar &
self-satisfaction.—they interprete it but not create
it(Vedas).
•Law givers Dharmasutras BC 600 to 200- Vedas were
studied by the Brahmins who were divided into various
branches.
•The sutras were Dharma sutras.
•The srautasutras and the Grihyasutras were the sutras
dealing with ceremonial and domestic rituals.
•Most ancient legal literature includes the
Dharmasutras of Gautam Baudhayana, Apastamba
and Vaisistha.
•The Dharmasastras existed even before BC 600 to 300.
102
because the will of God & human reason coincide.
•Smritikar(those person who were learned in the Vedas)
laid down 4 sources of law-Veda, Smriti, Sadachar &
self-satisfaction.—they interprete it but not create
it(Vedas).
•Law givers Dharmasutras BC 600 to 200- Vedas were
studied by the Brahmins who were divided into various
branches.
•The sutras were Dharma sutras.
•The srautasutras and the Grihyasutras were the sutras
dealing with ceremonial and domestic rituals.
•Most ancient legal literature includes the
Dharmasutras of Gautam Baudhayana, Apastamba
and Vaisistha.
•The Dharmasastras existed even before BC 600 to 300.
102
•Gautam and His Dharmasutra—28
chapters,---included source of Dharma, raja
dharma, certain Punishment, etc,. On his
Dharmasutra, Haradatta wrote a commentary
called the Mitakshara.
•Baudhayana’s– mentioned 12 kind of sons
belonging to both the families and inheriting.
•A) the class in which the sons can inherit their
shares in the property.
•B) the sons—entitled to the benefits of
membership of the family, & nothing by way
of inheritance.
103
chapters,---included source of Dharma, raja
dharma, certain Punishment, etc,. On his
Dharmasutra, Haradatta wrote a commentary
called the Mitakshara.
•Baudhayana’s– mentioned 12 kind of sons
belonging to both the families and inheriting.
•A) the class in which the sons can inherit their
shares in the property.
•B) the sons—entitled to the benefits of
membership of the family, & nothing by way
of inheritance.
103
•Apastamba-- - composed in the 4
th
& 5
th
century
BC---recognized 6 marriage ties as the only
proper marriage ties.—didn’t recognized
(secondary and adopted sons, & prohibited the
gifting or sale of children ) even the daughter
must be regarded as an heir.
•Vasistha and his Dharmasutra– round about BC
300, --authoritative character of custom and
recognised 6 forms of marriage rites & permitted
re-marriages of widows.---recognized 12 types of
sons---6 of them being heirs—remaining 6 are
not entitled to any succession but only rights of
member of the family
104
th
& 5
th
century
BC---recognized 6 marriage ties as the only
proper marriage ties.—didn’t recognized
(secondary and adopted sons, & prohibited the
gifting or sale of children ) even the daughter
must be regarded as an heir.
•Vasistha and his Dharmasutra– round about BC
300, --authoritative character of custom and
recognised 6 forms of marriage rites & permitted
re-marriages of widows.---recognized 12 types of
sons---6 of them being heirs—remaining 6 are
not entitled to any succession but only rights of
member of the family
104
•Manu and Manusmriti (about 5
th
Century BC
or about BC 200)– manu gave 18 titles of
rights and remedies—gifts, sale, deposits,
relation—etc,.
•Yajnavalkya– great jurist –foundation of the
law of inheritance—1
st
recognised “cognates”
as heir.
•Narada –he gave a legal code, distinction betn
law and ethics, --doctrine of civil law, allowed
remarriage of widows—gave adopted son the
9
th
rank.
105
th
Century BC
or about BC 200)– manu gave 18 titles of
rights and remedies—gifts, sale, deposits,
relation—etc,.
•Yajnavalkya– great jurist –foundation of the
law of inheritance—1
st
recognised “cognates”
as heir.
•Narada –he gave a legal code, distinction betn
law and ethics, --doctrine of civil law, allowed
remarriage of widows—gave adopted son the
9
th
rank.
105
•Brihaspati – the rules of civil law, --gave father
and son had equal rights in ancestral property;
Mother , daughter &widow of the deceased
Hindu should be regarded as his heirs.—fair
treatment of women—clear distinction betn
civil and cr,laws & justice.
•Katyayana– several types of stridhan( women
power of disposal)– About 600 BC
•Reconciliation between stability and change-
Legal order should appear fixed and stable—
exigencies of changing human needs.
106
and son had equal rights in ancestral property;
Mother , daughter &widow of the deceased
Hindu should be regarded as his heirs.—fair
treatment of women—clear distinction betn
civil and cr,laws & justice.
•Katyayana– several types of stridhan( women
power of disposal)– About 600 BC
•Reconciliation between stability and change-
Legal order should appear fixed and stable—
exigencies of changing human needs.
106
P
hrMbrnb-kIg
P
hrM?bHJfdmdLubrusbTLerfn
P
ALuDJ IdLubLUbfrM BtCPPrUe -dtErt>seCnatICAt
CntCte b -strU d -otHC-yatICAt ntC-trUesUtrJt
iyDC-tOsiCb ryUt.UsICE r-Go
P
hrMbrusbJ@krfdIg •Law as Duty
•Law, Religion and Morals
•Conception of law– according to Vedas, law
as a divine origin. Manu, law is an order of
human behaviour (relation).
•Law and equality
107
hrMbrnb-kIg
P
hrM?bHJfdmdLubrusbTLerfn
P
ALuDJ IdLubLUbfrM BtCPPrUe -dtErt>seCnatICAt
CntCte b -strU d -otHC-yatICAt ntC-trUesUtrJt
iyDC-tOsiCb ryUt.UsICE r-Go
P
hrMbrusbJ@krfdIg •Law as Duty
•Law, Religion and Morals
•Conception of law– according to Vedas, law
as a divine origin. Manu, law is an order of
human behaviour (relation).
•Law and equality
107
THANK YOU
108
108
Tags
Categories
GeneralDownload
Download Slideshow Get the original presentation fileQuick Actions
Statistics
- Views 5,065
- Slides 108
- Age 681 days
Related Slideshows
22
Pray For The Peace Of Jerusalem and You Will Prosper
RodolfoMoralesMarcuc
37 views
26
Don_t_Waste_Your_Life_God.....powerpoint
chalobrido8
40 views
31
VILLASUR_FACTORS_TO_CONSIDER_IN_PLATING_SALAD_10-13.pdf
JaiJai148317
37 views
14
Fertility awareness methods for women in the society
Isaiah47
34 views
35
Chapter 5 Arithmetic Functions Computer Organisation and Architecture
RitikSharma297999
32 views
5
syakira bhasa inggris (1) (1).pptx.......
ourcommunity56
35 views