International Commercial Arbitration

International Commercial Arbitration is an alternative method of resolving disputes between private parties arising out of commercial transactions conducted across national boundaries that allows the parties to avoid litigation in national courts.

As per section 2(1)(f) of the arbitration and conciliation act, 1996, international commercial arbitration means an arbitration relating to disputes arising out of legal relationship, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is the following:-

• An individual who is a national of, or habitually resident in any country other than India.
• A body corporate which is incorporated in any country other than India.
• A company or an association or a body of individuals whose central management and control is exercised in any country other than India.
• The government of a foreign country.

Alternate Dispute Resolution

It is a fine substitute for the more common judicial process. It includes methods like negotiation, conciliation, mediation and arbitration. All these methods have some common features, which makes ADR a very viable and preferable mode in dealing with disputes. Most commonly, these have a shorter time duration as the court route. The cost is considerably less than the court and legal fees. Privacy, neutrality of the proceedings and of the decision and possibilities of customizing the procedures are some more attractive features.

The rising population of ADR can be explained by increasing case loads of the traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individuals who will decide their disputes.

The salient features of ADR are:-

• Negotiation - Participation is voluntary and there is no third party who facilitates the resolution process or impose a resolution.
• Mediation - There is a third party, a mediator, who facilitates the resolution process, but does not impose the resolution on the parties.
• Arbitration - Participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.
• Conciliation - Each party has an attorney who facilitates the resolution process within specifically contracted terms.

Almost all disputes including commercial, civil, labor and family disputes, in respect of which the parties are entitled to conclude a settlement, can be settled by an ADR procedure. The techniques have been proven to work in the business environment.

Res Gestae

Section 6 embodies the rule of admission evidence relating to what is commonly known Res Gestae. Acts or declarations accompanying the transaction or the facts in issue are treated as part of the res gestae and admitted as evidence. The obvious ground for admission of such evidence is the spontaneity and immediary of the act or declaration in question.

E.g - A sues B for libel contained in a latter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

It is based on the belief that because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other second hand statements and therefore should be admissible as evidence.

In Gentela Vijayvardhan Rao And Anr v. State of Andhra Pradesh, the appreciable interval between the act of carnage and magistrate's recording the statement was found inadmissible under res gestae.

Opinion of Experts

Section 45 of the Indian Evidence Act, 1872 makes the opinion of experts important on points of specialized areas like handwriting analysis, fingerprints, artistic impressions, scientific principles and foreign legal positions. Anyone possessing specialized knowledge in the above mentioned field would be deemed to be an expert.

As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant. Witness has to state the fact which he has seen, heard or perceived, and noted the conclusion, form of observations. The functions of drawing inferences from facts is a judicial function and must be performed by the court. 

E.g - The question is, whether the death of A was caused by poison?

->  The opinion of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

Expert evidence is opinion evidence and it can't take the place of substantative evidence. It is a rule of procedure that it must be corroborated either by clear direct evidence or by the circumstantial evidence.

It is not safe to rly upon this type of evidence without seeking independent and reliable corroboration [S. Gopal Reddy v. State of A.P AIR 1996 SC 2184 (Para 27)]

Principle of Estoppel

It is based on the principle that it would be most in equitable and unjust that if one person, by a representation made,  or by a conduct amounting to a representation, has induced another to act as he would not otherwise have done, the person who made representation should not be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it (Sorat Chandra v. Gopal Chunder).

It follows from the generally accepted rule that a person cannot approbate and reprobate  at the same time. This is specially the case when another has relied on the information or statement given by one and done something that he otherwise would not have done. This is to prevent undue hardship for others who depend on the statements previously made by the person.

Primary Evidence

It means the document itself produced for the inspection of the court (section 62). The rule that the best evidence must be given of which the nature of the case permits has often been regarded as expressing the great fundamental principles upon which the law of evidence depends. The general rule requiring primary evidence of producing documents is commonly said to be based on the best evidence principle and to be supported by the so called presumption that if inferior evidence is produced where better might be given, the later would tell against the withholder. 

Secondary Evidence

It is generally in the form of compared copies, certified copies or copies made by such mechanical processes as in themselves ensure accuracy. Section 63 defines the kind of secondary evidence permitted by the Act. According to this section, it means include:-

• Certified copies given under the provisions hereafter contained.
• Copies made from the original by mechanical processes which in themselves ensures the accuracy of the copy and copies companies compared with such copies.
• Copies made from or compared with the original.
• Counterparts of documents as against the parties who did not execute them.
• Oral accounts of the contents of a document given by some person who has himself seen it.

According to section 65 of the Act, where primary evidence can be provided, secondary evidence should not be used. It should only be given where the original document is not available because it has been lost or destroyed, or it is otherwise unavailable because it is under the control of some public authority's control.

Circumstantial Evidence

It is a kind of derived evidence, that can be gained from sources seen as secondary. For example, a copy of a document or a record in a public can be taken as evidence in the absence of the original documents. Another example could be that of the state of things in a particular room, where a crime has taken place. They can be considered when no eye-witness account is available. It is used only in the absence of primary evidence.

In State of Maharastra v. Dr. Praful B. Desai, the Supreme Court held that under Section 3 of the Indian Evidence Act besides Oral and Documentary Evidence, electronic record can also be admitted as the evidence. The court further stated that evidence ruled in criminal matters could be by way of electronic records, which would also include video conferencing.

Oral Evidence

Spoken testimony that witness gives  in a court, usually upon oath. Oral evidence is always direct. "Oral Evidence means statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. But, if a witness is unable to speak he may give his evidence in any manner in which he can make it intelligible as by writing or by signs". (Section 119)

A relationship between section 50 and section 60 of the Indian Evidence Act has been established which says that for proving an evidence completely, two things shall be fulfilled at first, there shall be a presence of relevant facts and those facts have been presented directly by the person who has either seen them, heard them or etc. [Amar Singh v. Chhaju Singh]

Documentary Evidence

A 'document' means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used for the purpose of regarding that matters. Documents produced for the inspection of the court is called as the Documentary Evidence. Section 60 provides that the contents of a document must be proved either by Primary or Secondary Evidence.

Presumption

A presumption is not in itself an evidence but only makes a prima facie case for the party in whose favour it exists. A presumption is a rule of law that courts or juries shall or may draw a particular evidence unless and until the truth of such inference is disproved. There are three categories of the presumptions:-

• Presumption of Law, which is a rule of law that a particular inference shall be drawn by a court from particular circumstances.
• Presumption of Fact, it is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved.
• Mixed Presumptions, they consider mainly certain inferences between the Presumptions of Law and Presumptions of Fact.

Summary Procedure

The summary procedure as specified under order 37 of the Code of Civil Procedure, 1908 applies to suits on negotiable instruments like bills of exchange, promissory notes and hundies. This is to expedite the redressal process and to bar the defendant from stopping the plaintiff from taking any action against him.

It acts like an ingenious solution to help prevent unreasonable obstructions by a defendant who has no tenable defence. It would be beneficial to business as unless the defendant is able to demonstrate that he has a substantial defence, the plaintiff is entitled to a judgement.

Order 37 engineers an appropriate mechanism that ensures that the defendant does not prolong the litigation especially as in commercial matters time is of the essence and helps further the cause of justice.

Recently in Uma Shankar Kamal Narain v. MD Overseas Limited, the Supreme Court upheld previous judgements like Southern Sales and Services v. Sauermilch Design and Handles GMBH, and the Sunil Enterprise v. SBI and reiterated the principles to be adherred to in the case of a leave to defend summary suit relating to the dishonoured. cheques.

Such suits may be instituted by presenting a plaint containing the following essentials:-

• A specific averment to the effect that the suit is filed under this order.
• That no relief which does not fall within the ambit of this rule has been claimed.
• The inscription immediately below the number of the suite in the title of the suit is being established under Order 37 of CPC.

The summary suit must be brought within one year from the date on which the debt becomes due and payable, whereas the period of limitation for ordinary case under negotiable instruments is three years.

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Res Sub Judice

It denotes that a matter or case is being considered by court or judge, when two or more cases are filed between the same parties on the same subject matter, the competent court has the power to stay proceedings.

It aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigation with respect to the same cause of action, same subject matter and same relief claimed.

Thus it provides that, civil court should not proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit is pending is competent to grant the relief sought [Indian Bank v. Maharastra State Cop. Marketing Federation Ltd., AIR 1998 SC 1952].

The conditions essential for stay of suits:-

• The matters must be two suits instituted at different times.
• The matter in issue in the latter suit should be directly and substantially in issue in the earlier suit.
• Such suit should be between the same parties.
• Each earlier suit is still pending either in the same court or in any other competent court but not before a foreign court.

Res Judicata

It is, in both civil law and common law system, a case in which there has been a final judgement and is no longer subject to appeal. The term is also used to refer to the doctrine meant to bar re-litigation of such cases between the same parties, which is different between the two legal systems. Once a final judgement has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially same as the earlier one will apply the res judicata doctrine to preserve the effect the first judgement. The principle of res judicata is not the creature of any statute or the handiwork of any code of law. It is the gift of the public policy.

It is also applicable to all quasi-judicial proceedings of the tribunal other than the civil courts. [Sulochana Amma v. Narayan Nair, JT 1993(5) SC 450].

It is a pragmatic principle accepted and provided in law that there must be a limit or end to litigation on the same issues. The conditions of res judicata are:-

• The matter must be directly and substantially in issue in two suits.
• The prior suit should be between the same parties or persons claiming under them.
• The parties should have litigated under the same title.
• The court which determines the earlier suit must be competent to try the later.
• The same question is directly and substantially in issue in the later suit.

Doctrine of Sufficient Cause

This doctrine covers ground on which, the limitation period can be extended. It can be on the grounds of a legal or physical disability, for example, if the person needs to submit some papers to be obtained from a government department that are not received on time, the limitation period can be extended, as that is not something within his control.

Section 5 of the Limitation Act, 1963 provides for the extension of time, or condonation of delay in cases of exigency. The applicant will have to prove that we had sufficient cause or a valid reason for not applying within the prescribed time as per the Act.

The court might then overlook the delay and accept the application in all regularity, as if it were submitted within the specified time. However, this power is a discretionary power, only to be exercised by the courts where they feel that the case so warrants.

Bar of Limitation

Bar of Limitation implies that a person is given the right to approach the courts in any matter within a set time frame. Beyond that, it is not that his legal right regarding that matter extinguishes; it is just that the courts will not be able to help him in that matter anymore.

The court can suo motu take note of question of limitation. The question whether a suit is barred by limitation should be decided on the facts as they stood on the date of presentation of the plaint. It is a vital section upon which the whole Limitation Act depends for its efficacy.

It in fact place a limit on the aggrieved person's right to file a suit on the logic that if the person is truly distressed, he will find an opportunity to file a suit as soon as possible. If that has not been done, and the court sees no valid reason, or sufficient cause, it will reject the suit.

Continuous Running of Time

According to section 9 of the Act where once time has begun to run, no subsequent disability or inability to institute a suit or make an application can stop it, provided that where letters of the administration to the estate of a creditor or have been granted to his debtor, the running of the period of limitation for a suit to recover debt shall be suspended while the administration continues.

The applicability of this section is limited to suits and applications only and does not apply to appeals unless the case fell within any of the exceptions provided in the Act itself.

There are various applicability of this rule:-

• It applies to cases where the cause of action continues, when that is varied, a fresh period of limitation will begin from the date of variation.
• It only applies to suits and applications, and to appeals, which are generally allowed unless expressly under some other section.
• Cases of property being vested in trusts and in legal representatives will be included only in the instance of the property being vested for a specific purpose.

Period of Limitation

This is the period during which, a suit can be filed or a case initiated in a court of law. Different periods have been prescribed for different matters and issues, as per the Limitation Act. For example, if it is a matter of a tort, one can approach the courts within three years, if it is a matter related to mortgage, the period of limitation is sixty years, and so on.

As per Section 3, the suit, if filed after the exploration of time-limit, is struck by the Law of Limitation. It is basically meant to protect the long and established user and to indirectly punish persons who got into a long slumber over their rights. The provisions of Section 3 are mandatory.

The effect of Section 3 is not to deprive the court of its jurisdiction. Therefore, decision of a court allowing such a suit which had been instituted after the period is not vitiated for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

Malicious Prosecution

An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecution, but may be brought in response to any baseless and malicious litigation or prosecution, whether civil or criminal.

To win a suit for malicious prosecution, the plaintiff must prove four elements:-

• The original case was terminated in favor of the plaintiff.
• The defendant played an active role in the original case.
• The defendant did not have probable cause or reasonable grounds to support the original case, and
• The defendant initiated or continued the initial case with an improper purpose.

Malicious prosecution occurs when one party has knowingly and with malicious intent initiated baseless litigation against another party. This includes both criminal charges and civil claims, for which the cause of action is essentially the same. The main difference between claims based on civil or criminal action has to do with evidence. For example, mental suffering is usually considered an element of general damages in a claim based on malicious criminal prosecution, with no special proof required. But for claims based on civil actions, the plaintiff must be able to prove quantifiable damages.

In the Gaya Prasad v. Bhagat Singh, the Privy Council pointed out that the conduct of the complainant before and after the complaint has to be seen to decide whether he was the real prosecutor or not. If the complainant knowing that the charge is false tries to misled the police by procuring false evidence for the conviction of the accused, he would be considered to be the prosecutor.

Damnum Sine Injuria

It is a legal maxim which refers to as damages without injury or damages in which there is no infringement of any legal right which are vested with the plaintiff.

The maxim means that in a given case, a man may have suffered damage and yet have no action in tort, because the damage is not an interest protected by the law of torts. Therefore,  causing damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff.

Thus, if I own a shop and you open a shop in the neighbourhood, as a result of which I lose some customers and my profits fall  off, I cannot sue you for the loss in profits, because you are exercising your legal right [Gloucester Grammar School case, (1410) Y.B Hill 11 Hen, IV to 27, pp - 21,36].

For example, a financial wrong caused by one  could result in liability to the other, even though no physical harm has been caused to the other.

Injuria Sine Damnum

It is a violation of a legal right without causing any harm, loss or damage to the plaintiff and whenever any  legal right is infringed, the person in whom the right is vested is entitled to bring an action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty and infringement of this right is actionable per se. A person against whom the legal right has been infringed has a cause of action. The law even gives the liberty that if a person merely has a threat of infringement of a legal right has been threatened can bring a suit under the provisions of Specific Relief Act under Declaration and Injuction.

For example, if a person is wrongfully detained against his will, he will have a claim for substantial damages for wrongful imprisonment even if no consequential loss was suffered upon the detention.

In the landmark case of Ashby v. White (1703) wherein the plaintiff was a qualified voter at the parliamentary elections which were held at that point of time. The defendant, a returning officer wrongfully refused to take the plaintiff vote. The plaintiff suffered no damage since the candidate which he wished to vote already won the election but still, the defendants were held liable. It was concluded that the damage was not merely pecuniary but injury imports a damage, so when a man is hindered of his rights he is entitled to remedies.

Rule of Strict Liability

The defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant's part. In other words, the defendant is held liable without fault.These fall under the following categories:-

•  Where damage is done by the escape of the dangerous substances brought or kept by anyone upon his land.
• Where a person interferes with the property or reputation of another.
• Cases that involve liability of master for the  acts of the servant.

The rule in Rylands v. Fletcher (1868) L.R 3HL330 is that a man acts at his peril and is the insurer of the safety of his neighbors against the accidental harm. Such duty is absolute because it is independent of its negligence on the part of the defendant or his servants.

Mens Rea

The act itself creates no guilt in the absence of a guilty mind. It just says that the act is to be held as tort should be  done with a guilty mind in order for the liability to be held against the perpetrator. It does not necessarily mean a criminal intent, it suffices even if the act is done either with wrongful intention or negligence.

It is a legal phrase used to describe the mental state a person must be in while committing a crime for it to be intentional. It can refer to a general intent to break the law or a specific, premeditated plan to commit a particular offense. To convict an accused person of a wrong doing, a criminal prosecutor must show beyond any reasonable doubt that the suspect actively and knowingly participated in a crime that harmed another person or property.

Rule of Vicarious/Tortious Liability

It refers to a situation where someone is held responsible for the actions or omissions of another. In the field of Tort, it is considered to be an exception to the general rule that a person is liable for his acts only. It is based on the principle of qui facit er se er alium facit per se, which means, "He who does an act through another is deemed in law to do it himself".

When a case of Government liability in Tort comes before the courts, the question is whether the articular government activity, which gave rise to the tort, was the sovereign function or non-sovereign function. If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.

In case of any medical negligence, if the doctor acting in the course of employment of the Government Hospital, the Government is liable for the negligent act as it come under the preview of State Liability. In the case of State of Punjab v. Shiv Ram & ors, cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of surgeon and not on account of child birth.

Audi Alterum Partem Rule

According to this rule, both sides to a case should be heard before passing the order. It also requires that both parties should be heard before passing the order. It also requires that both parties should be given sufficient opportunity to present their respective cases.

It is considered to be a principle of fundamental justice or equity or the principle of natural justice in most legal systems. It includes the rights of a party or his lawyers to confront the witness against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own willingness and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case property.

This implies that both the parties should be informed as to the charges against him and should be given to submit his explanations there to. The rule involves the following:-

•  Each party has a right to receive notice of all actions taken by the other party.
• Both parties have to be given full opportunity to present their side of the case which includes presentation of the evidence too both oral and written.
• Both the parties must be given opportunity to counter the evidence produced against him which can be done by - cross examination and legal representation.

If the order is passed by the authority without providing the reasonable opportunity of being heard to the person affected by it adversary will be invalid and must be set aside as in the cases of Harbans Lal v. Commissioner, National Central Co-operative Bank v. Ajay Kumar and Fateh Singh v. State of Rajasthan.

Administrative Law

It is the body of law that governs the activities of the administrative agencies of the government. Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda. It is considered a branch of the public law.

It deals with the decision-making of such administrative units of government as tribunals, boards or commissions that are part of a national regulatory scheme in such areas as police, law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.

It expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction.

Nemo Judex in Causa Sua

It means no-one should be a judge in his own case. It is a principle of natural justice that no person can judge a case in which they have an interest. It is very strictly applied to any appearance of a possible  bias, even if there is actually none. 'Justice must not only be done but must be seen to be done'.

The legal effect of breach of natural justice is normally to stop the proceedings and render any judgement invalid; it should be quashed or appealed, but may be remitted for a valid rehearing.

If one sits in his own case as a judge and decides the case, the justice delivery system will never be free from criticism. So, it is imperative that no one shall be a judge in a case where s/he is directly or indirectly a party.

The interest can be of three types:

• Pecuniary
• Personal
• Subject Matter

Any financial interest of the adjudicatory authority in the matter would vitiate the adjudication. The judge may be directly/indirectly related to a party due to which he will take biased decision. A judge may have a bias in the subject matter which means that he himself is a party, or has some direct connection with the litigation.

  

Principle of Natural Justice

It is a concept of Common Law and represents principles developed by judges. Though it enjoys no express constitutional status, it is one of the most important concept that ensure that people retain their faith in the system of adjudication. These are not precise rules of unchanging content; their scope varies according to the context. Nevertheless it provides the foundation on which the whole super-structure of judicial control of administrative action is based.

The principle is said to have included two rules. They are :-

• Nemo Judex in Causa Sua - It says that no person can be a judge in   his own case.
• Audi Alterum Partem - According to this rule, both the parties to a case should be heard before passing the order.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decisions to the procedures required by natural justice.

Judicial Review

It is a type  of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. These are the challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not concerned if the conclusion is right or wrong till the procedures have been followed. The court will not substitute what it thinks is the 'correct' decision.

It involves a review of the manner in which the decision has been made, not an appeal from the decision itself; it is concerned with the decision making process. It covers not only the legislative but also the executive or administrative acts.

Rule of Beneficial Construction

This rule recommends giving the widest meaning possible to the statutes and its provisions so as to include all those eventualities that the makers intended to be included. When there are multiple meanings possible to a section or a term, that meaning which gives the maximum possible relief and furthers the purpose of the legislation should be chosen.

It is an interpretation to secure remedy to the victim who is unjustly denied of relief. It should be done in such a way that mischief is suppressed and remedy is advanced.

In the case of Sant Ram v. Rajinderlal, the SC said that welfare legislation must be interpreted in a Third World perspective favoring the weaker and poor class.

Rule of Harmonious Construction

When there are two provisions in a statute, that seem to be at odds with each other, they are to be interpreted in a manner that allows effect to be given to both. Any construction that renders either of them inoperative and useless should not be adopted except as a last resort.

The rule follows a very simple premise that every statute has a purpose and intent as per law and should be read as a whole. The interpretation consistent of all the provisions of the statute should be adopted. In the case in which it shall be impossible to harmonise both the provisions, the court's decision shall prevail.

In Venkatraman Devaru v. State of Mysore case, the SC applied this rule in resolving a conflict between Article 25(2)(b) and 26(b) of the Constitution and it was held that the right of every religious denomination or any section thereof to manage its own affairs in matter of religion [Article 26(b)] is subject to a law made by a state providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus [Article 25(2)(b)].

Purposive Rule of Interpretation

It is a derivation of Mischief Rule set in Heydon's case, and intended to replace the Mischief Rule, the Plain Meaning rule and the Golden Rule. It is used when the courts use extraneous materials from the pre-enactment phase of legislation, including early draft, committee reports etc. It involves a rejection of the exclusionary rule.

In Mangin v. Inland Revenue Commission the Privy Council held:-

the object of the construction of statute, be it to ascertain the will of the legislature, it may be presumed that neither injustice nor absurdity was intended. If, therefore a literal interpretation would roduce such a result and the language admits of an interpretation which would avoid it, then such an interpretation may be adopted.

Literal Rule of Interpretation

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.

It is the primary and important rule of interpretation which is laid down in the Sussex Peerage case and states that it is the only rule of construction of acts of parliament is, that they should be constructed according to indent of the Parliament which passed the act.

The words themselves alone do, in such, best declare the intention of the law giver.

The advantages of this rule are as follows:-

• enables the common man to understand the statues.
• the indent of legislature is simple and clear.
• it respect the parliamentary supremacy.
• the law is quite predictable.

Some of the disadvantages of this rule are as follows:-

• can lead to unreasonable restriction.
• English language is ambiguous.
• its application is impossible in every situation.

In CIT v. V Sundaram Iyyengar (1975) 101 ITR 764 SC, the meaning of literal rule was given in this case as, "if the language of the statute is clear and unambiguous, the court can't discard the plain meaning, even if it leads to an injustice".

Rule of Expressio Unius Est Exclusio Alterius

The rule means that 'items not expressly included in the list are deemed to be excluded' that is what the statute does not mention, is not covered by it. It has to be judged from the language of the statute whether an item has been willfully left out or it has happened due to inadvertence. An inclusive list would be so defined by the use of terms like 'includes', 'and', 'also' etc.

The method of construction according to this maxim must be carefully watched. The failure to make the 'expressio' complete may arise from accident. Similarly, it is often the result of inadvertence or accident because it never struck the draftsman that the thing supposed to be excluded requires specific mention. The maxim ought not to be applied when its application leads to inconsistency or injustice.

Similarly, it can not be applied when the language of the statute is plain with clear meaning [Parbhani Transport Co-Operative Society Limited v. Regional Transport Authority, AIR 1960 SC 801].

It means express mention of one thing excludes all others. It indicates that items not on the list are assumed not to be covered by the statutes. When something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded. This is an aid to construction of statutes.

Rule of Reasonable Construction

According to this rule, while constructing the meaning of a statute, although we utilize the common or ordinary meaning of the words used in it, it should be done while according due regard to the following:-

• The subject matter or the core concern of the act.
• The objective intended to be fulfilled by it, for example, the wrong it seeks to address.

It is the duty of the court in constructing a statute to give effect to the intention of the legislature. If, therefore, giving of literal meaning to a word used by the draftsman particularly in penal statute would defeat the object of the legislature, which is to suppress a mischief, the court can depart from the dictionary meaning which will advance the remedy and suppress the mischief.

It is only when the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship of injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence [Tirath Singh v. Bachittar Singh, AIR 1955 SC830]. 

The court explains that we should understand the intention of law, reason behind making that law. And if the meaning is absurd then we should construct its meaning within the ambit of this rule.

Noscitur a Sociis

According to it, the meaning of a word has to be derived from the words mentioned along with it in the statute. This is because words at time have contextual meanings and support complete interpretation only when read read with contiguous words. This rule can be used when the word carries the same meaning everywhere in the statute, but not where alternative meanings are possible. This rule, like other rules of interpretation, is not resorted to when using it would lead to absurdities of interpretation.

The same words bear the same meaning in the same statute. But this rule will not apply :-

• When the context excluded that principle.
• It is not needed if sufficient reason can be assigned.
• Where it would cause injustice or absurdities.
• Where different circumstances are being dealt with.
• Where the words are used in a different context.

In Pradeep Agarbatti v. State of Punjab [AIR 1998 SC 171], the question was whether 'dhoop' or 'dhoopbatti' fell within the description of 'perfume' thereunder. It was held that perfumery means such articles as used in in cosmetics and toilet goods viz, sprays etc. but does not include 'dhoop' and 'agarbatti'.

Rule of Harmonious Construction

This rule of interpretation means that any section or part of statute should be read with reference to the entire act; that is the meaning should be construed in entirety, not singularly. If while constructing the meaning of a section, it conflicts with the meaning given in other, in all probability there is an error in interpretation. Hence, if two sections in the same statute seem to give different meanings or lead to opposite directions, the interpretation should be such as can accommodate both meanings.

Where in an enactment, there are two provisions which can not be reconciled with each other, they should be interpreted that, if possible, effect may be given to both. This is what known as the 'Rule of Harmonious Construction'.

It is the duty of the courts to avoid a head on clash between two sections of the same act and whenever it is possible to do so, to construct provisions which appear to conflict so that they harmonise [Raj Krishna v. Pinod Kanungo, AIR 1954 SC 202 at 203]. 

It is a principle of statutory interpretation used in the Indian Legal System. It holds that when two provisions of a legal text seem to conflict, they should be interpreted so that each has a separate effect and neither is redundant nor nullified.

Mischief/Heydon's Rule

According to this rule, when we interpret statutes, we need to consider some facts:-

• What was the common law before the making of the act.
• What was the mischief and defect for which the common law did not provide.
• What remedy the Parliament had resolved and appointed to cure the disease of the commonwealth; and 
• The true reason of the remedy.

According to this rule, while interpreting statutes, first the problem or mischief that the statute was designed to remedy should be identified and then a construction that supresses the problem and advances the remedy should be adopted.

The Supreme Court in Sodra Devi's case, AIR 1957 SC 832 has expressed the view that the rule in Heydon's case is applicable only when the words inquestion are ambiguous and are reasonably capable of more than one meaning.

Ultre Mages Valeat Quam Pereat

It is a rule of construction which literally means the construction of a rule should give effect to the rule rather than destroying it that is when there are two constructions possible from a provision and the other renders the provision inoperative, the former which gives effect to the provision is adopted and the later is discarded. It generally starts with the presumptions in favor of constitutionality  and prefer a construction which embarks the statutes within the competency of the legislature. But it is to be noted that when the presumption of the constitution fails, then the states cannot be held valid or operative accordingly.

The landmark case of Indra Sawhney (2000), where the Supreme Court struck down the state legislation as it was violative of constitution and ultra-vires of the legislative competency.

The act of the interpretation would begin from taking the liberal or dictionary meaning of the words of a statute, subjecting them to a scrutiny in light of its objective and only if such meanings do not give a correct sense of act should we resort to altering the meanings of the words according to the content.

Rule of Ejusdem Generis

Where there are general words following particular and specific words, the general words following the particular words must be confined to things of same kind as those specified, unless there is a clear manifestation of a contrary purpose.

To apply the rule, the following conditions must exist:-

• The statute contains an enumeration by specific words.
• The members of the enumeration constitute a class.
• The class is not exhausted by the enumeration.
• A general term follows the enumeration.
• There is a distinct genus which comprises more than one species.
• There is no clearly manifested intent that the general term be given a broader meaning that the doctrine requires.

In Kochunni v. State of Madras, it was observed: The Rule of Ejusdem Generis is that when general words follows particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words of the same nature. It is not an unavoidable rule of law, but is only a permissible inference in the absence of an indication to the contrary.

Doctrine of Severability

Under this, the courts construct the meaning of a contract or act by severing the troubling part, if it is severable, and only if severability is not possible, the entire act is scrapped (Article 154).

The courts have the power to sever an unconstitutional provision in a statute and enforce the remainder of the statute if it can exist without the severed part (Article 155).

Article 13 is the basis of the Doctrine of Severability. It makes the two provisions in this regard: - 

• Article 13(1) deals with the pre-constitution  laws and declares that all such laws are void to the extent to which they are inconsistent with the Fundamental Rights.
• Article 13(2) deals with the post-constitution laws and prohibits the state from making a law which takes away or abridges the Fundamental Rights and any such law is void to the extent of the contravention.

In State of Bombay v. F.N Balsara AIR 1951 SC 318, it was held that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not affect the validity of the entire act and therefore there was no necessity for declaring the entire statute as invalid.

Power of Supreme Court and High Court

Article 32 gives the right to individuals to move to the SC to seek justice when they feel that their rights have been unduly deprived. The apex court is given the authority to issue directions or order for the execution of any of the rights bestowed by the constitution as it is considered the protector and guarantor of Fundamental Rights [Article 32(1)].

The SC jurisdiction to issue writs extends to all the Fundamental Rights[Common Cause v. Union of India AIR 1999 SC 2979].

Where an effective remedy is available, the HC should not readily entertain a petition under Article 226 e.g - Under the Companies Act, a shareholder has very effective remedies for prevention of oppression and mismanagement. Consequently, HC should not entertain a petition under the said Article (Ramdas Motor Transport Company Limited v. T.A Reddy, AIR 1997 SC 2189).

It is not necessary that the aggrieved petitioner should first apply to HC and then to SC [(Romesh Thapar v. State of Madras) AIR 1950 SC 124].

Preventive Detention

It implies the detention of a person without a trial in cases where the evidence before the authority is not enough to make out a fully drawn legal charge or to secure the conviction of the ditenue by legal proof but is sufficient enough to justify his detention.

It is an anticipatory measure and does not relate to an offence while criminal proceedings are to punish a person for an offence committed by him [Alijan Mja v. District Magistrate, Dhanbad, AIR 1983, SC 1130].

The object of the Preventive Detention is not punish but to intercept to prevent the detenu  from doing something prejudical to the State [Ankul Chandra Pradhan v. Union of India, AIR 1997, SC 2814].

Doctrine of Pith and Substance

Applying this rule, we have to reach to the core of the act, that is, try to learn what the act endeavor to legislate in the first place. If that is valid, then the act upholds and is allowed to be functional.

it is applied when the legislature made by one of the legislatures encroaches upon the field allowed to others. If a substance falls within one list then the incidental encroachment by the law on the another list does not make it valid.

In the case of State of Mumbai v. F N Balsare, the Bombay Prohibition Act was challenged, which prohibited sale and possession of liquor in the state, was challenged on the ground that it incidentally encroached upon import and export of liquors across borders, which was a central subject. The act was held valid even such an act may impact in the import of liquor.

Jeremy Bentham and Analytical Jurisprudence

Bentham concept of law can be said to be an imperative one. According to him, a law may be defined as an assemblage of signs, declarative of volition, conceived or adopted by a sovereign in a state, concerning the conduct to be observed in certain cases. He believed that nature has placed man under the command of two authorities - pain and pleasure.

He opined that laws are to work for the common happiness and hence the power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.

He said that every law may be considered in eight different aspects which are as follows:-

1. Subject is the will of the sovereign.

2. Subjects may be persons or things.

3. Objects are goals or purpose of a given law.

4. Extent is the coverage of the act.

5. Aspects are range of laws to serve a purpose.

6. Force is the motivation to obey a law.

7. Remedial rules are set of subsidiary laws addressed by the judges to prevent the wrong targeted by      the Act.

8. An expression here refers to the expression of Sovereign will.

However, it has too got some cons which are as follows:-

1. It does not take proper account of laws conferring powers.

2. He didn't give proper consideration to custom as a source of law.

3. It didn't allowed  the laws made by judges.

4. It proposes an action according to pain and pleasure criterion.

5. The happiness of one group may be at the cost of happiness of another group. 

Han Kelson's 'Pure Theory of Law'

He believed that the contemporary study and theories of law impure as they drew upon various  other fields like religion and minority to explain legal concepts. It is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm.

For example, in India a statute or law is valid because it derives its legal authority from the Parliament which in turn derive its authority from the Constitution. As to the question from where the constitution derive its validity, is unknown.

He discarded the presumption of justice as an essential element of law because many law may still continue as law despite being unjust such as SARFAESI Act.

However, this theory too has got some cons which are as follows:-

1. There is no rule or yardstick to measure its effectiveness.

2. Its validity is a matter to be determined in the context of a given point of time.

3. One has to draw subjects other than law like Sociology, History, Morality etc.

4. Most of the countries gives primacy to the Municipal laws over international laws.

Kelson considered sanction as an essential element of law but he preferred to call it a norm which is the rule forbiding or prescribing certain behaviour. He distinguished moral norm with the legal norm and said that though moral norms are ought prepositions, a violation of it does not have any penal fallout.

John William Salmond's views on Jurisprudence and Law

According to Salmond, law is a body of principles that is given recognition by the state and applied in the administration of justice.

The constituent elements of which the law is made up are not laws but rules of law or legal principles. He believed that if a just society is to be maintained, it is necessary to add compulsions so as to compel the people to walk on the desired path.

Two things provide this control:-

1. Compulsion created by law that is fear of being penalized if they do not follow the law.

2. The same function is performed by the fear of the public opinion.

This theory has got some cons which are as follows:-

1. Justice is the end and law is only a medium to realize it can be questioned in case of unjust law such as SARFAESI Act.

2. The pursuit of justice is not the sole purpose of law; the purpose evolves over time and can even change.

3. There is contradiction in the theory itself. Justice is a universal concept whose analysis should not be constrainec by national boundaries.

Roscoe Pound's Sociological Jurisprudence

This theory states that social facts must be taken into consideration in the making, interpretation and application of law. Its goal was to build such a structure of society where the satisfaction of maximum wants was achieved with minimum friction and waste. There should be a sound balancing of competing interest.

For any legal order to be successful in structuring an efficient society, there has to be :-

• A recognition of certain interests - individual, public and social.
• A definition of the limits within which such interest will be legally recognized and given effect to.
• Securing of those interest within the limits as defined.

For deciding upon the scope, the following steps are required:-

• Listing out the various interest.
• Choosing which is to be legally recognized.
• Defining the limits of the interests so selected.
• Deciding upon the means to be used to secure those interests, and
• Determining how the interests are to be valued.

There are a few cons of this theory which are as follows:-

• It fails to maintain the balance between the competing interests.
• Does not provide yardstick for evaluation of the interest.
• It gives more importance to judiciary.
• Distinction between the various interests is not very clear.
• The recognition of the interest is a matters of policy; the theory does not specify this policy.

It is to be stated that however divergent the views of various sociological jurists may appear, they have common point that the law must be abided in relation to the society.

Austin's Command Theory of Law

According to him, law is the command of Sovereign that is backed by sanction. The law has the three main functions:-

1. Commands are expressions of desire given by superiors to inferiors. Some are laws and some not. Austin distinguishes law from other commands by their generality. It enjoins people to perform certain duties. It is a direction given to a person to do or refrain from something.

2. Sovereign is any person or a body of persons who is obeyed by a bulk of political society but itself does not obey anybody. It is given by a sovereign authority. It is an authority that is the source of all laws.

3. Sanction is the instrument of coercion by which any system of imperative law is enforced. There are punishments behind non-performance of the duties. It is the consequence that is followed on the non-compliance of the duties.

There are a few cons of this theory too which are as follows:-

1. Laws of the welfare states are not covered under the command theory.
2. Sovereign does not have to obey anyone but the modern states have to comply.
3. This theory does not consider judge-made laws.
4. It does not covers up international law.

In spite of criticism of Austin's theory of law, it cannot be denied that he rendered a great service by giving a clear and simple definition of law. He makes a distinction between what a law is and what it ought to be. It seeks to define law not be reference to its contents but according to the formed criteria which differentiate legal rules from others such as those of morals, etiquette etc.

Obiter Dicta

The literal meaning of this expression is ' said by the way.'

A judge's expression  of opinion uttered in court or in a written judgement, but not essential to the decision and therefore legally binding as a precedent.

It covers within its ambit all that the judges have said while delivering a particular judgement. They just carry the force of persuasive preceding and do not bind the judges.

It can be passing comments, opinions or example, if a court dismisses a case due to lack of jurisdiction and offers opinions in merit of a case, then these opinions constitute Obiter Dicta.

Ratio Decidendi

These are the principles derived from a particular case, which undermine any judicial decision. They act as guidelines for future similar cases. The judge has been given the right to decide upon the ratio decidendi and to apply it on any case.

According to Goodhart, it is nothing more than the decision based on the material facts of the case.

It involves the holding of a particular case which is given varying degree of merits.

Doctrine of Stare Decisis

Under this doctrine, any principle of law that has been followed in a number of cases gains the status of a binding rule and is generally followed unless its use is put to question.

It is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. It binds courts to follow legal precedents set by previous decisions.