Daily Reports 20.11.2015

Smt. Ligi, teacher of Legal Language and Legal Writing (OP-01) came to the class in the first hour and taught the following.

1.      Case Law : State Of Maharashtra v. Mayer Hans George 1964

The legal question was in respect of Foreign Exchange Regulation Act, 1973. The  respondent, a German smuggler, left Zurich by plane  on 27th  November 1962 with 34 kilos of gold concealed  on his person to  be delivered in Manila.  The plane arrived in Bombay on the 28th but the respondent did not come out of the plane.  The Customs Authorities examined the manifest of the  aircraft  to  see                if any gold  was  consigned  by any passenger, and not finding any entry they entered the plane, searched the respondent, recovered the gold and charged him with  an offence under ss. 8(1) and 23(1-A) of the Foreign Exchange Regulation Act (7 of 1947) read with a notification dated  8th November 1962 of the Reserve Bank of India  which was published in the Gazette of India on 24th November. The respondent was convicted by the Magistrate, but acquitted by the High Court on appeal.  In the appeal by the State to the Supreme Court, the respondent sought to support the judgment of  the High Court by contending that :

(i)                  Mens rea was  an essential  ingredient of the offence charged and as  it  was not disputed by the prosecution that the respondent was  not aware of the notification of the Reserve Bank,  he  could not  be found guilty,

(ii)                the notification  being  merely subordinate  or delegated legislation could be deemed to  be in force only when it was brought to the notice of  persons! affected  by  it  and 

(iii)               the  second  proviso  in the notification  requiring disclosure in the manifest  was not applicable to gold carried on the person of a passenger.

A two member bench of the Supreme Court held that

(i)  On the language of s. 8(1) read with s. 24(1) of the Act, which throws on the accused the burden of proving that he had the requisite permission to bring gold into India, there was no scope  for the invocation of the rule that besides the mere act  of voluntarily bringing gold into India any further mental condition or mens rea is postulated as necessary  to constitute  an offence referred to in s. 23(1-A).

(ii) The notification was "published" and made known in India  by publication in the Gazette and the ignorance of it by the respondent who is a  foreigner was wholly  irrelevant and made no difference to his liability. [163B-D]. In the absence of any statutory requirement the rule is that subordinate or delegated legislation should be published  in the  usual form, that is, by publication within the  country by  such  media as are generally adopted to  notify  to all persons concerned and publication in the Official Gazette is the  ordinary method of bringing a notification or  rule  to the notice of persons concerned.

(iii) The term "cargo" in the notification is used in contradistinction to personal luggage" in the law relating to the carriage of goods.  The latter has been defined as whatever a passenger takes with him for his personal use or convenience   either   with reference  to   his   immediate necessities or for his personal needs at the end of the journey.  Gold of the quantity and in the form and manner in which it was carried by the respondent would certainly not be "personal luggage."

It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the courts below unless there is any illegality in it or the same involves any question of principle. A sentence of one year's imprisonment was passed by the Chief Presidency Magistrate. When the decision of the Supreme Court was pronounced, the respondent had suffered the imprisonment that had been inflicted on him by the order of the Presidency Magistrate. In these circumstances, SC directed that though the appeal was allowed, the sentence would be reduced to the period already undergone. 

2.       The two main maxims applied here are 1. Ignorance of law is no excuse and 2. Mens rea is not applicable in statutory offences.

3.       If the penalty is not great, and if the damage of the public is very great, mes rea has no application.

4.       Where it is Difficult to obtain adequate evidence of mens rea it is not applicable. The assumption here is that the person has mens rea.

5.       Considering the seriousness of the offense, mens rea is excluded in the following offences. The person charged with the offence cannot bring the defence of not having mens rea.

1.       Waging war against the State

2.       Sedetion = രാജ്യദ്രോഹം or  defamation against the State.

3.       Kidnapping

4.       If the act itself creates a presumption that it is done with the intention of causing results. Example : Making a machine to print counterfeit currency notes or to a mint to make counterfeit coins.

5.       Instances of strict liability and vicarious liability.

6.       Section 124A of IPC defines sedition as follows.

124A. Sedition Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. — The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2. — Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. — Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

7.       In criminal law vicarious liability has no application except in a few exceptions.

8.       Damnum sine injuria is not actionable as in Gloucester Grammar School Case.

9.       Tortious liability arises out of a breach of duty primarily fixed by law. When that duty is violated, the plaintiff can sue the defendant for compensation. That is, tortuous liability arises when there is a violation of the right to the plaintiff. The fact that the plaintiff suffered damage or not is not decisive.

10.   Though there is damage to the plaintiff and if there is no breach of duty by the defendant, the plaintiff has no remedy at all. On the other hand, if a right is invaded, though no actual damage is caused, there is right of action.

11.   The above principles are expressed in the legal maxims Damnum sine injuria and Injuria sine Damnum.

12.   CASE LAW : Ashby v. White. In this case when the right to vote has been violated, a nominal amount was awarded as compensation. This case is also known as Aylesbury election case.

13.   CASE Law : Bhim Singh v. State of Jammu and Kashmir. In this case Mr. Bhim Singh, an M.L.A. was prevented from attending assembly session. Compensation was awarded to him for violating his right to attend the assembly session.

The first hour ended there and Smt. Praseeda, teacher of Law of Crimes (IPC)  (CP-05) came in the second hour and taught the following among others.

1.       Smt. Praseeda opined that the topic that she was dealing in CPC may be completed first, and then only need we start learning Law of Crimes.

2.       She reminded us that all Interlocutory Applications have two parts namely 1. Affidavit and 2. Application. As we have already considered Affidavit, let us consider Petition of IAs.

3.       Petition has a Cause Title which is similar to that of an Affidavit. The title shall be

PETITION FILED UNDER ORDER…………. RULE …………….. SECTION …………. OF CPC

4.       Then the petition runs as, “For the reasons stated in the accompanying affidavit, it is most humbly prayed before this honourable court to grant a temporary injunction in favour of the plaintiff till the disposal of the suit.”

5.       In Commission applications the petition shall be, “It is highly necessary to appoint an advocate commissioner and report the following matters.

1.       Lie and lay of the property.

2.       …………………………….etc.”

6.       A party in a suit can file as many Interim Applications as he deems necessary.

7.       Petition for postponement of hearing can be made when the party is laid up, bed ridden, suffering from chicken pox etc.

8.       Similarly a petition for advance hearing may also be prayed for.

9.       Following the legal maxim Audi Alteram Partem, it is the duty of the petitioner to give a copy of the petition to the respondent. Three days notice is normally necessary for advance hearing.

10.   The reply of a respondent of the Interim Application is called “Counter.”

11.   Deponent is the person who makes and signs an application.

Meanwhile a notice was read in the class informing the students that a meeting of the Chair for Business Laws (CBL) shall be convened on 23.11.2015 at 10.30 am. All the existing members of the CBL and all those who want to be member in it may attend the same.

12.   An advocate may file an interim application in cases of necessity except in cases where Civil Rules of Practice provides for the signature of the party as a must.

13.   Court may issue an ex-parte injunction order in cases of urgency.

14.   Caveat is an order of a person directing the court to the effect that nothing shall be done with him until he is served with a notice.

15.   The name and address of the person against whom the caveat is filed should be shown in the caveat. Caveat shall have effect for a limitation period of 90 days.

16.   It is not mandatory for the person who applies for the caveat to serve copies of the caveat to the other party.

17.   Notice, reply to notice, filing of plaint, Summons etc are the stages of a civil suit.

18.   Summons may be served

1.       To the party personally

2.       Through an adult member of the family

3.       Through an agent of the party

4.       By registered post with acknowledgment due. Courier service is not usually resorted to.

5.       Affixing at a conspicuous place at the natural dwelling place of the party.

6.       Through newspaper publication. It is also called substitute service. In this case, a affidavit with a copy of the published advertisement should be filed before the court.

The second period ended there and Smt. Premsy, teacher of Constitutional Law – 1 (CP-03) came in the third period and taught the following among others. She is our Class teacher too.

1.       Constitution is the living law and basic law of the land. It is the basic principle upon which Indian Polity is built.

2.       India is a Federal State having quasi federal nature.

3.       State as per our constitution includes The Union of India, The States of India and the local bodies such as Panchayats, Municipalities, Townships, Corporations etc.

4.       Our constitution deals with rights, duties, citizenship, functions of Parliament and legislative assemblies, Duties of President, Vice President, Prime Minister, Chief Justice of India etc, Passing of bills, amendment of constitution, powers of higher judiciary, relationships between Union and the States, Special Provisions for Jammu Kashmir etc, are some subject matter dealt with in Indian Constitution.

5.       Indian Constitution is the lengthiest constitution of the world.

6.       It was passed on 26^th November 1949 and came into existence on 26^th January 1950.

7.       In terms of Jurisprudence, Indian Constitution is an admixture of natural laws and positive laws.

8.       Natural Justice is the basic principle of the Constitution of India.

9.       Article 13 of the Indian Constitution defines law as,

“Laws inconsistent with or in derogation of the fundamental rights

(1)  All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2)  The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3)  In this article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4)  Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

10.   The Constitution of India is composed of its Preamble, 448 Articles, 25 Parts, 12 Schedules and 5 appendices and 98 active amendments out of 120.

11.   The seventh schedule of the Constitution contains the Union List, State List and Concurrent List.

12.   The eighth schedule deals with official languages.

13.   Legal Rights are the interests of the people protected by law. Such significant rights which the Constitution protects are called fundamental rights.

14.   Law has a history of development. Originally there were no laws at all. The ancient laws did not have clarity. For clarity laws began to be written down. Philosophical thinkers did not support written down laws. In later period positive law insisted that the laws should be written down and such thoughts gained predominance. However deviation from the written laws were also necessary to bring justice and fairness in a changing society.

15.   Judicial review is the interpretation of the existing rights provided in the constitution and rights cannot be invented or created.

16.   Supreme Court has the power to entertain writs only in cases of breach of fundamental rights. But in writs before the High Courts both the violation of fundamental and statutory rights can be challenged.

17.   The Syllabus of Constitutional Law – 1 (CP-03) is given below.

Unit I

Constitution of India – Historical Perspective – constitutional development – Political developments – Making of the Constitution – Constitutional Assembly Debates – Constitutional Law: Meaning and Constitutionalism – Various models of Constitution: Written, Unwritten, Unitary, Federal, flexible – Parliamentary vs. Presidential – Preamble: Sovereign, Socialist, Secular and Democratic Republic – 42nd Amendment – Basic Structure theory – Citizenship – Who is a citizen of India – Rights under Migration due to Partition – Acquisition of Citizenship – Citizenship Rules – jus soli and jus sanguinis – Termination of Citizenship – Related Case Laws

Unit II

State and Fundamental Rights – Concept of State – Meaning of Law under Article 13 – Principle of Equality – Articles 14, 15,16 and Article 17 – Special Reference to the Equal Rights and Equality before Law under Article 14 – Rules for Classification – Protective Discrimination under Article 15 – Gender Justice – Article 16 and Reservation Criteria – Article 17 and untouchability Abolition Strategy - relevant case laws.

Unit III

Fundamental Freedoms and Social Control – Right to Know – Personal Liberty – Rights of accused persons and judicial attitude – Double Jeopardy – Right against Self incrimination – Article 21 and Judicial contributions with special reference to A.K. Gopalan v. State of Kerala 1951, Maneka Gandhi v. Union of India, Sunil Batra’s case – Procedure established by Law – Due Process – Post Maneka Gandhi decisions – Fair Procedure, Handcuffing, Legal Aid, Natural Justice, Duty to Hear, Right to Health, Right to Food, Right to Environment, Preventive Detention, Right against Torture, Right to Die, Right to Privacy etc – Important Case Laws Right to Education – Free and Compulsory Education – Freedom of Education Act – Relevant Case Laws – Right against Exploitation – Child Labour – Prohibition of Bonded Labour, Human Trafficking, Beggar etc – Case Laws – Secularism and Minority Rights – Concept of Religion under Indian Constitution – Minority Rights – Right to Educational Institution – Controversy on Conversion of Religion – Relevant Case Laws

Unit IV

Judicial Review and Constitutional Remedies – Article 32, 226 and Article 227 – Nature of Writs – Classification – Article 32 as Fundamental Right – Laches or delay in instituting Writs – Limitation – Public Interest Litigation – Judicial Activism and Judicial Restraint Directive Principles of State Policy – Directive Principles and Fundamental Rights a Comparative Approach – Rights under Articles 31A, 31B and 31C – Judicial Response and Relevant Case Laws – Principles – Social and Economic Justice – Equal Pay for Equal Works, Free Legal Aid – Uniform Civil Code – Promotion of International Peace and Security – Local Self Government as Directive Policy – Constitutional Amendments and Constitutional Position of Three Tier system of Governance Fundamental Duties

Unit V

Relations between the Union and States – Extent of Laws made by Parliament and State Legislatures, Subject Matter – Power of the Parliament to Legislate on Matters under the State List – Residuary Power of Legislation – Effect of Inconsistency between State Law and Union Law – Doctrine of Colourable Legislation, Pith and Substance and Doctrine of Occupied Field – Administrative relation – Duties and Powers of Union and State – Control of Union over State – Disputes relating to Water – Financial Relations – Finance Commission

Suggested Readings:

Shukla. V.N - Constitution of India

J.N Pandey - Constitution of India

Austin Granville - The Indian Constitution- Cornerstone of a Nation

Durga Das Basu - Constitutional Law of India

M.P. Jain -Indian Constitutional Law

H.M. Seervai - Constitutional Law of India

Subhash Kashyap - Indian Constitution

Constitutional Assembly Debates

18.   SC or HC as the case may be can entertain a writ only after satisfying itself that the petitioner has locus standi and the court has jurisdiction to try and hear the writ. Writ can be admitted only if the State is a party in the writ.

19.   Smt. Premsy informed that as part of internal assessment, a team of two students, one pro and one against shall discuss or make a critical analysis of selected case laws.

20.   It was also informed the first semester shall be from November to March. During May and June comes the summer vacation. Next semesters come in June- October, November- March and onwards. Hence our course will be over only in 2018 October. Examination will be held after each semester. But even during examinations, regular classes shall be conducted to ensure minimum number of classes.

The third hour ended and Smt. Smitha, teacher of Family Law (CP-04) came in the fourth hour.

A notice was first served to inform the students that a workshop is being held at 10am to 4 pm. on 21.11.2015 at Thrissur Cultural Centre, Sakthan Thampuran Nagar, Thrissur on the topics “Significance of Right to Information Act, Terror related offences, and Evaluation of contemporary offences.”

1.       Laws regulating human relations in a family are called family laws in general.

2.       The syllabus of Family Laws -1 is given below.

Unit-1

Marriage and Kinship: Evolution and importance of Marriage and family – Role of Religion, Impact of customs on marriage and Family – Definition of Hindu, Muslim, Christian – Sources of Hindu Law, Muslim Law and Christian Law

Unit-II

Concept of marriage - Essential conditions of a valid Hindu Marriage under Hindu Marriage Act- Distinction between Valid, Void and Voidable marriages – Legal consequences of a Valid Marriage – Essential requirements of a valid Muslim marriage – Option of puberty, Legal effects of a Minor’s marriage – Essential conditions of a valid Christian marriage – Kinds of marriages under Hindu and Muslim systems – dowry and dower as applicable to Hindus, Muslims and Christians

Unit III

Matrimonial remedies: Annulment, Restitution of Conjugal Rights, Judicial Separation and Divorce- Theories of Divorce: Fault/Guilt Theory, Consent Theory, Irretrievable breakdown of marriage – Conditions for grant of matrimonial remedies under Hindu marriage Act and Indian Divorce Act – matrimonial remedies for Muslims (Talaq, Ila, Zihar, Tafweez, Khula, Mubaarak) – Talaq: different kinds of Talaq, Delegated talaq – Divorce under Shariat Act – Judicial and Extrajudicial methods of Divorce – Significance of Dissolution of Muslim Marriages Act – Divorce by Mutual consent – Matrimonial relief under Special Marriage Act

Unit IV

Child and Family: Legitimacy, Adoption, Custody and Maintenance of Child – Guardianship of the Child – Child Marriage and legal provisions prohibiting child marriage

Unit-V

Recent developments – Family Court: Composition, Powers and functions – dowry and Dowry Prohibition Act – Need for Uniform Civil Code – Article 44 of the Constitution of India – Compulsory registration of marriage

Suggested Readings:

Mulla - Principles of Hindu Law

Paras Diwan - Hindu Law

Mulla - Mohammedan law

Tahir Mohamed - Muslim law in India

Sebastian Champappally - Christian law

E.D. Devadasan - Handbook of Christian law

AAA Fyzee - Outlines of Mohammedan Law

3.       There is no uniform civil code existent in India.

4.       Hindu Family Law includes the Hindu Legislations such as Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act etc.

5.       Kuran, Hadis, etc are sources of Muslim Family Law.

6.       Christian Family laws generally follow the Indian secular legislations such as Special Marriage Act, Indian Succession Act, Indian Divorce Act, etc.

7.       Sources of Hindu Family Law include both codified and uncodified laws.

8.       Codified laws are legal legislations.

9.       Uncodified Laws are basically from religious texts such as srutis smrtis, digests etc.

10.   Two basic Hindu Laws are Yajnjavalkya Smrti and Manu Smrti.

11.   There are two main schools of Hindu Law namely the Dayabhaga School prevalent in Bengal and the Mithakshara School prevalent in rest of India.

12.   Digests are the commentaries on Smrtis.

13.   Another source of Hindu Law is custom. Custom is a practice followed by the people from time immemorial continuously without any interruption.

14.   Justice Equity and Good Conscious were the main principles that formed the law in England where as the concept of Dharma was the main principle in India. However if there is no statute governing an issue, the issue used to be decided on the principles of Justice, Equity and Good Conscience.

15.   Next source is precedence. Precedence is following a principle in a previously adjudged case.

16.   Dharma came to be equated with the English concept of Justice, Equity and Good Conscience in Hindu Law Legislations.

17.   Legislation itself is another source of Hindu law.

The fourth hour and the class of the day ended there.