UNIT- I

Meaning of Jurisprudence
The term “jurisprudence” comes from the Latin word “juris-prudentia,” which translates to
“knowledge of law” in its broadest sense. Specifically, “juris” means law and “prudentia” means
skill or knowledge. Therefore, jurisprudence refers to the understanding of law and its practical
application.

Jurisprudence is the study and theory of law, particularly the philosophy of law. It involves
examining the fundamental principles and concepts of law, the role and function of law in
society and the methods and techniques used to interpret and apply the law.

Jurisprudence explores the nature of law, legal systems and legal institutions and seeks to
understand the social, political and cultural contexts in which law operates. It is a broad field that
encompasses a range of perspectives, including legal positivism, natural law, legal realism and
critical legal studies. Through the study of jurisprudence, scholars and practitioners seek to
develop a deeper understanding of the law and its role in shaping society.

Definitions of Jurisprudence
Oxford Dictionary defines ‘Jurisprudence’ as the systematic and formulated knowledge or the
science of human law,

Definitions by various jurists

 Ulpian a Roman Jurist defines jurisprudence as ” Jurisprudence is the knowledge of

things divine and human, the science of just and unjust.”
 Cicero defines Jurisprudence as “Jurisprudence is the philosophical aspect of the
knowledge of law”.
 Austin defines Jurisprudence as the “philosophy of positive law”.
 By positive law or jus positivism, he means the law laid down by a political superior for
controlling the conduct of those subject to his authority
 Holland has defined jurisprudence as the “formal science of positive law”.
 Salmond defines jurisprudence as “the science of the first principles of the civil law.”
 Kant defines jurisprudence as “the science of right.”
 Roscoe Pond defines jurisprudence as “the science of law”.
 Gray defines jurisprudence as “the science of law, the statement and systematic
arrangement of the rules followed by the courts and the principles involved in these
rules.”
 Allen defines jurisprudence as “the scientific synthesis of the essential principles of law.”
 Keeton defines jurisprudence as “Jurisprudence’ is the study and systematic arrangement
of the general principles of law.”
 Jullius Stone defines jurisprudence as a “lawyer’s extraversion.”
 Laski defines jurisprudence as “Jurisprudence’ is an eye of law.”

Nature and Scope of Jurisprudence

Nature of Jurisprudence
Jurisprudence is the study and theory of law and it plays a critical role in shaping our
understanding of the legal system. This field provides insights into the fundamental principles
and concepts of law, including the meaning of rights, duties, possessions, property and remedies.
By examining these concepts, jurisprudence helps us to better understand the role and function
of law in society.

One of the key aspects of jurisprudence is its focus on the sources of law. This field provides
insights into the various sources of law, including statutory law, common law and constitutional
law. Through the study of jurisprudence, scholars and practitioners seek to develop a deeper
understanding of how these sources of law interact with each other and how they influence the
development of legal systems over time.

Another important aspect of jurisprudence is its role in clarifying the concept of law itself.
While the law is often thought of as a set of rules and regulations, jurisprudence helps us to
understand that law is a complex and multifaceted concept that cannot be reduced to a simple
definition. Instead, the law is a dynamic and evolving concept that is shaped by a range of social,
cultural and political factors.

It is important to note that jurisprudence is not a substantive or procedural law. Rather, it is an

uncodified law that provides a framework for understanding the legal system as a whole.
Jurisprudence serves as the “eye of law,” providing insights into how the law operates and how
it can be used to achieve justice and fairness in society.

While some scholars view jurisprudence as a science, others view it as a social science.
Scholars of the historical school of jurisprudence, for example, view jurisprudence as a social
science that is shaped by historical, cultural and political factors. Regardless of how one views
jurisprudence, however, it is clear that this field plays a critical role in shaping our understanding
of the legal system and in guiding the development of legal theory and practice over time.

Scope of Jurisprudence
Jurisprudence is a field of study that encompasses a wide range of topics and disciplines. It
explores the relationship between law, culture and society and it seeks to understand the
fundamental principles and concepts that underpin the legal system. One of the key aspects of
jurisprudence is its focus on legal logic, which involves the study of legal frameworks, bodies of
law and the reasoning behind legal decisions.

However, the scope of jurisprudence goes beyond just the study of legal logic. It also
encompasses other fields, such as psychology, politics, economics, sociology and ethics. This is
because the law is not created in a vacuum, but rather is shaped by the social, cultural and
political context in which it operates. Therefore, jurisprudence seeks to understand how these
various fields intersect with the law and how they influence the development and application of
legal principles.

The study of jurisprudence is also important for understanding the nature of law itself. It
explores questions such as the origin of law, the need for law and the utility of law and seeks to
develop a deeper understanding of how the law operates in practice. This includes studying
various legal systems and traditions and how they have evolved over time.

Justice P.B. Mukherjee noted that jurisprudence is both an intellectual and idealistic abstraction,
as well as a study of human behaviour in society. It encompasses political, social, economic and
cultural ideas and covers the study of individuals in relation to the state and society.

Overall, the scope of jurisprudence is vast and wide-ranging and includes a variety of disciplines
and topics. It is an essential field of study for understanding the legal system and the role of law
in society and it continues to play a critical role in shaping legal theory and practice today.

Difference between Jurisprudence and Legal Theory

Jurisprudence and legal theory are two related but distinct fields of study. Jurisprudence is a
broader field that encompasses the study of the nature of law and its principles, while legal
theory is a subset of jurisprudence that specifically examines the philosophical content of the
law.

As Fitzgerald has pointed out, jurisprudence covers a wider field of study compared to legal
theory. It involves an investigation of abstract, general and theoretical aspects of the law. In
contrast, legal theory seeks to clarify the most fundamental legal concepts and answer the
question, “what is law?”.

Legal theory is just one aspect of jurisprudence, which is concerned with the evaluative and
philosophical study of law in terms of its ends, values and goods. It is focused on living law,
which is based on social forces and felt needs and it rejects purely technical, analytical or
conceptual perceptions of the law.

In summary, jurisprudence is a broader field that encompasses legal theory as well as other
aspects of the study of law. Legal theory, on the other hand, is a subset of jurisprudence that
specifically focuses on the philosophical content of the law.

Conclusion
Jurisprudence plays a crucial role in the development of legal systems and societies, as it
provides a theoretical framework for understanding the law and its underlying principles.
Through jurisprudence, we gain knowledge about the basic principles of law and the sources
from which they are derived. It helps us to understand the legal systems of different countries
and the cultural, social and economic factors that shape them.

Furthermore, jurisprudence is not just a theoretical abstraction; it has practical implications as

well. It provides guidance to lawyers, judges and policymakers in making legal decisions that are
just and equitable. Therefore, the study of jurisprudence is essential for anyone who wishes to
understand the law and its role in society.

Overall, jurisprudence is a fascinating and multifaceted field of study that holds much
importance in the vast field of law. It is a subject that requires deep critical thinking and
analytical skills, as well as a broad understanding of the social, political and economic contexts
in which the law operates.

The schools of jurisprudence are various theoretical approaches to the study of law that aim to
understand its nature, purpose and function in society. These approaches differ in their
fundamental assumptions about the law, the role of the state, the relationship between law and
morality, law and society and the source of legal authority.

There are five schools of jurisprudence: analytical, positivism, historical, sociological and
realist.

Analytical School of Jurisprudence

The Analytical School of Jurisprudence focuses on the present form of law. This school is
referred to by various names, such as the Austinian School, named after John Austin who
established this methodology. It is also known as the Imperative School, as it considers law as
the direction or command of the sovereign and the Positivist School, as its proponents are only
concerned with law as it exists presently and not with its past or future.
The term “positivism” was coined by August Comte. John Austin was responsible for
developing the theory of positive law, which was initially founded by Bentham.

One of the primary functions of the Analytical School is to analyse or decompose the law into its
irreducible elements.

John Austin

John Austin, known as the father of English Jurisprudence, defined law as “a command of the
sovereign backed by a sanction.” According to him, the law is the direction of the politically
powerful authority backed by a sanction, which means that the Law-Maker has the authority to
make laws and it supersedes judgments by judges or precedents. He also distinguished law from
morality and divided law into two parts: divine law and human law.

Types of Laws Recognised by Austin:

Austin recognised three types of laws: declaratory or explanatory laws, laws of repeal and laws
of imperfect obligation.

Merits

Austin’s definition of law is simple and clear, which lays down exact boundaries within which
jurisprudence has to work. His positivist approach further laid down the foundation of English
jurisprudence. He stated an important universal truth that law is created and enforced by the
State.

Demerits

However, his definition of law overlooks customs, which regulated the conduct of the people in
early times. Austin ignores the permissive character of the law and there is no place for judge-
made law. He does not include conventions of the Constitution in his definition of law, although
they are the subject matter of a study in jurisprudence.

Austin also does not treat international law as a law because it lacks sanction. The rules set by
private persons in pursuance of legal rights are included in “positive law,” which is an undue
extension because their nature is vague and indefinite. Austin overemphasises the command
aspect of the law, which cannot be applied to modern democratic countries.

Additionally, Austin’s definition of law does not cover international law and ignores social
factors of law and psychological factors that secure its obedience. It also ignores the
interrelationship between law and morality.

Bentham

Bentham, a prominent English philosopher, defined law as a collection of signs indicating the
will of the sovereign in a state regarding the conduct to be followed by a particular person or
group of people subject to the sovereign’s power. He also supported the concept of laissez-faire,
which advocates for minimal State intervention in individuals’ economic activities.

Principle of Utilitarianism

Bentham proposed the principle of utilitarianism, which states that legislation’s appropriate aim
is to promote the greatest amount of utility. He defined utility as the capacity of a thing to
prevent evil or promote good. Bentham argued that the consequences of an action were either
pleasure or pain.
Merits

 Bentham’s legal reforms thinking and enthusiasm ushered in a new era of legal reforms in
England. He contributed new ideas on law-making and legal research.
 His definition of law and analysis of legal terms inspired many jurists, who improved upon it and
laid the groundwork for new schools.
 Bentham also provided solutions to issues regarding the nature of positive law.

Demerits

 Bentham’s theory has some shortcomings, according to Friedmann.

 Firstly, in his attempt to merge materialism with idealism, Bentham underestimated the
importance of individual discretion and flexibility in law application, overestimating the power
of the legislator.
 Secondly, the theory does not balance individual interests with those of the community.
 Additionally, the theory is too abstract and fails to account for the complexities of human
nature.
 Furthermore, the theory has no practical application and using pain and pleasure as the sole
test for judging law is inadequate.

Sociological School of Jurisprudence

The Sociological School of Jurisprudence emphasises the relationship between law and society,
arguing that law is a social phenomenon with a significant impact on society. This school
maintains that every problem and change that occurs in society should be viewed from a legal
perspective.

Law as a Social Phenomenon

The Sociological School of Jurisprudence posits that law is a social scenery and it directly or
indirectly relates to society. This school’s main focus is to balance the welfare of the state and
the individual and it believes that the present-day socio-economic problems cannot be solved by
existing laws.

Logic-Based Approach

This school’s approach is based on logic and rationality, rather than metaphysical entities or
divinities.

Roscoe Pound

Roscoe Pound is known for his functional approach to law, which emphasises the practical
application of law and its role in creating a better society. According to Pound, the main
objective of law should be to satisfy the maximum number of wants with the minimum amount
of friction. He also developed the theory of social engineering, which seeks to balance
competing interests in society by protecting various interests through the law.

Classification of Interests

Pound’s theory of social engineering classifies interests into three categories: private, public and
social. Private interests include physical integrity, reputation, freedom from violation and
freedom of conscience. Interest in domestic relations involves marriage, parents and children and
maintenance. Interests in substance involve inheritance, occupational freedom and property.
Public interests include the preservation of the state, administration of trusts, charitable
endowments, territorial waters and the natural environment. Social interests are those that are
thought of in terms of social life and are generalised as claims of social groups.

Merits

 The theory has focused on the practical implications of the law and the role of jurists in building
a welfare state.
 It considers the working of law rather than its abstract concepts.
 It regards law as a social institution that can be improved by human effort and to discover and
effect such improvement.
 It lays stress on the social ends of law rather than sanctions.
 This theory suggests that legal precepts be used as guides to socially desirable results.
 His idea of functional law led to the creation of the functional school.
 His theories gave the most influential exposition of the American sociological viewpoint.

Demerits

 Classification of interests is not useful because social interests always change with society and
putting them into a specific order will cause them to lose their character and importance.
 The term “social engineering” is used to indicate the problem that law faces, the objectives that
have to be fulfilled and the methods which it will adopt for the purpose of interest.
 There is no ideal scale of values with reference to interest.
 The word “engineering” does not provide a balance between social needs and interests, but
only recognises or approves it.
 The theory ignores the fact that law evolves and develops in society according to social needs
and wants.
 The dynamic feature of the law is undermined in this theory.
 The conflict between social and individual interests is not considered by him.
 Professor Allen criticised him for focusing on wants and desires to fulfil material welfare, which
might be harmful to personal freedom.

Dugit’s Theory

Dugit, a sociologist, proposed a theory of social solidarity that emphasises the importance of
interdependence and mutual assistance within a society. According to him, there are two types of
needs in society: common needs, which are fulfilled by mutual assistance and adverse needs,
which are fulfilled by the exchange of services. Social solidarity is necessary to fulfill these
needs and it requires a division of labour to meet all the requirements of the society.

Merits

 Dugit’s theory advocates for peace and solidarity in society.

 He also challenges the concept of state sovereignty by comparing the state to any other
organisation.
 Dugit argues that the functions of individuals in society depend on each other and the aim of
the law is to safeguard interdependence and fulfil all necessities. He stresses that the end result
of all human activities and organisations should be to ensure social solidarity and the formation
of law is crucial for community life.
 Additionally, his theory minimises the role of the state and the legislator, promoting
interdependence among individuals in society.

Demerits

 Dugit’s theory has some drawbacks.

 He believes that the state’s duty is to ensure social solidarity and is against state sovereignty.
 He sees no difference between public and private law, which may lead to the elevation of state
power above the rest of society.
 The concept of social solidarity is vague and can lead to judicial despotism, as judges will decide
whether an act or rule is furthering social solidarity.
 His theory confuses natural law theories as a law that does not promote social solidarity is not
considered law.
 Dugit’s theory does not perform well due to the minimum interference of the state, as social
problems of modern communities can be solved better by state activity.
 Moreover, his use of “is” instead of “ought” confuses the definition of law with natural law
theories and his theories are inconsistent, with contradictory claims about the structure and
role of the state.

Historical School of Jurisprudence

The historical school of jurists, which was founded by Friedrich Karl von Savigny (1779-1861),
is a school of thought that describes the origin of law. According to this school, the law was
found, not made. The historical school believes that law is made by people in response to their
changing needs and that it is an outcome of the development of society. The law originates from
the conventions, customs, religious principles and economic needs of the people. The basic
source of the historical school is custom.

Customs are defined as traditional and widely accepted ways of behaving or doing something
that is specific to a particular society, place or time. In the historical school, customs are
considered superior to legislation. The emergence of this school was due to its opposition to the
ideology of the analytical school of jurisprudence, as well as being a reaction to the natural
school of law.

Friedrich Carl Van Savigny

Friedrich Carl Van Savigny, a prominent legal scholar from the 19th century, believed that law
is a matter of unconscious and organic growth. His theory emphasised the influence of culture
and the character of the people on the evolution of law. Savigny’s theory also traced the course
of the evolution of law in various societies.

Main Points of Savigny’s Theory

 Law is found, not made. It is a matter of unconscious and organic growth. Law is not universal in
its nature and varies with people and age.
 Custom precedes legislation and is superior to it. The law should always conform to the popular
consciousness.
 As laws grow into complexity, the common consciousness is represented by lawyers who
formulate legal principles. Lawyers remain only the mouthpiece of popular consciousness and
their work is to shape the law accordingly. Legislation is the last stage of law-making and
therefore, the lawyers or the jurists are more important than the legislators.

Merits

 Savigny’s theory emphasised the influence of culture and the character of the people on the
evolution of law.
 The theory laid the seeds for the development of sociological and evolutionary jurisprudence.

Demerits

 Savigny’s theory is inconsistent as he argued that the origin of law is in the popular
consciousness, but some of the principles of Roman law were of universal application.
 While advocating for the national character of law, he entirely rejected the study of German law
and took inspiration from Roman law.
 Savigny claimed that popular consciousness is the main source of law, which is not always true
as sometimes an alien legal system is successfully transplanted in another country or a single
personality greatly influences a legal system that is not based on popular consciousness.
 Customs are not always based on popular consciousness and many customs and practices have
been declared illegal. Charles Allens criticised him for emphasising the idea of law made by
customs as he was of the view that customs are not based on the consciousness of people but
on the powerful ruling class.
 Savigny’s theory ignored the judge-made law, although judges have played an important and
creative role in making law.
 His theory did not explain many things that developed in certain powerful communities, such as
slavery and untouchability in India.
 Despite its limitations, Savigny’s theory remains significant in the development of legal thought
and continues to influence the study of law.

George Friedrich Puchta

George Friedrich Puchta was a student of Savigny and a significant jurist whose ideas were more
logical and improved. He used the term “right” instead of “law” and believed that men always
lived in unity, but people are different in their behaviour and unequal, which gave rise to the
concept of law.

The state comes into existence as a result, but neither the people nor the state alone is the source
of law. Instead, all laws come into existence through Volksgeist, the spirit of the people. Popular
consciousness unites people into one community, similar to a common language or religion.
According to Puchta, customary law is the best expression of the national spirit or Volksgeist,
making custom superior to legislation.

Merits

 Puchta’s ideas were more logical and improved compared to Savigny’s.

 He distinguished between the general will and individual will, which helped explain conflicts.
 His division and explanation of conflicts between the general will and the individual will make
the state intervention theory more logical.
 He presented a two-fold aspect of human will and the origin of a state, which was absent in
Savigny’s theory, making it rigid.

Demerits

 Puchta ignored the historical aspects of legal development.

 His ideas were initially rejected due to ambiguity, which he later corrected.

Philosophical School of Jurisprudence

The Philosophical School, also known as the Ethical or Natural School, posits that legal
philosophy should be based on ethical values in order to encourage people to live uprightly. The
purpose of law, according to this school, is to maintain social harmony, preserve law and order
in society and justify legal restrictions only if they promote individual freedom.

The Philosophical or Moral School focuses primarily on the connection between law and the
specific objectives that the law seeks to achieve. It seeks to explore the rationale behind the
establishment of a particular law.

This school upholds the principles of logic and reason.

Prominent figures in this school include Grotius (1583-1645), Immanuel Kant (1724-1804) and
Hegel (1770-1831), who view the law as the product of human reason, aimed at enhancing and
glorifying human identity.

Grotius

Grotius is widely regarded as the founder of international law and he believed that a system of
natural law could be derived from the social nature of man. According to Grotius, natural law is
the dictate of right reason, which indicates whether an act is in conformity with rational nature
and possesses a quality of moral baseness or moral necessity.

Merits

 Grotius emphasised the importance of morals in describing righteous conduct in society and
built a system of natural law that should command universal respect by its inherent moral
worth.
 He also stressed the significance of reasons and the origin of law based on morals.
 According to Grotius, the agreement of mankind concerning certain rules of conduct is an
indication that those rules originated for the right reason.

Demerits

 Grotius’ theory was based on morality and there is a difference between ethics and morality.
Ethics refers to the behavioural patterns of a person, whereas morality refers to the values
imbibed in them.
 Additionally, there are other factors such as social, economic and political patterns of the
society that are crucial in the formation of law. Legislation, customs, precedents, etc., are also
significant sources of law.
 Furthermore, Grotius believed that natural law deserved universal command, which is not
possible in modern times since laws are formed by considering the state, people and nature and
making laws according to the needs of society.
 Grotius’ definition is dependent on logic/reason, which varies from person to person and hence
there wouldn’t be uniformity of law.
 The same goes for moral baseness and necessity since something that may feel morally correct
to one person may not to another and vice versa.

Immanuel Kant

Immanuel Kant, a famous philosopher, described the law as the set of conditions under which
personal desires can be reconciled with the desires of others according to a general law of
freedom. He emphasised the importance of legal duties and legal rights, as well as the distinction
between natural and acquired rights. He believed that the state’s primary function is to protect
and guard the law, with the ultimate aim of establishing a universal world state.

Kant’s View on Ethics and Law

Kant differentiated between ethics and law, arguing that ethics pertains to spontaneous acts of
individuals while law pertains to acts that individuals are compelled to perform by society and
the state. Ethics is concerned with inner life and consciousness, while law regulates external
conduct.

Kant also stressed that legislation is only effective if it represents the united will of the people.
He believed that justice is a relative concept, depending on the conditions, place and social
values in which an action takes place. Kant believed that laws must be metaphysical and derived
from reason in order to be just.
Merits

 Recognised the natural right to freedom of an individual in the presence of others’ freedom
under general law
 Aimed to establish a universal world state
 Emphasised the role of the state in safeguarding and protecting the law
 Differentiated between ethics and laws and highlighted the importance of the united will of
people in legislation.

Demerits

 Focused on what law ought to be and disregarded the past and present of the law
 Denied the significance of natural law in the formation of laws
 Theoretical differences between ethics and laws with little practical application
 Insufficient consideration of other sources of law, such as customs.

Realist School of Jurisprudence

The Realist School is a sociological approach that focuses on decisions and evaluations of law. It
challenges traditional legal values and concepts by examining what courts and common people
are actually doing. This movement emphasises the importance of the judicial organisation in the
application of the law. The realist school believes that law is real and co-relates law with reality.

There are two types of realist schools: the American Realist and the Scandinavian Realist. The
former learned from their own experiences and also observed judgments, while the latter
believed only in their own experiences.

John Chipman Grey

John Chipman Grey considered the father of American Realism, believed that the Law of the
State or any organised body is composed of the rules that the courts lay down for the
determination of legal rights and duties. He emphasised that codified laws are immaterial unless
they are applied by a judge and that law is basically the judgment that the court passes.

Merits

Merits of Grey’s theory include its relatability to real-life situations, a chance for own
interpretation by people and a focus on “what law is” rather than “what law ought to be.” He
also observes similar cases in the past.

Demerits

Grey’s theory has some demerits. He does not take into account the statute law, puts excessive
faith in judges and does not consider that the judgment may include the judge’s personal bias.
Additionally, his definition is not concerned with the nature of law, but rather its purpose and
ends.

Jerome Frank

Jerome Frank is a prominent philosopher of the realist school. In his work, he compared the
relationship between the certainties of law in men to a father-son relationship, where a man gets
protection from the law, just as a son gets protection from his father.
Merits

Frank’s view brings the following merits:

 He emphasises that lawyers and judges should not rely on legal certainty in the name of
precedents or codification.
 He highlights the constructive work that lawyers and judges should do.
 He emphasises the importance of lawmaking by evaluating the facts of each case under
changed social circumstances.
 He advocates maintaining balance and developing the law in parallel with the advancement of
society.

Demerits

However, Frank’s approach also has some demerits, such as:

 Critics have found his approach not useful in terms of the law.
 Some scholars criticised him for using the Freudian approach to the psychological development
of a child in his theory, calling it the Freudian approach of jurisprudence.
 He exaggerated the human factor in judicial decisions and focused only on the roles of lawyers
and judges.
 The realist approach was based on the American system of the judiciary, making it not
universally applicable.

Conclusion
The five schools of jurisprudence are as follows: natural law (analytical), legal positivism,
historical, sociological and realist. These schools of thought provide a framework for
understanding the nature of law, the role of law in society and the principles that underlie legal
systems around the world. Each school has its own unique perspective and approach to the study
of law and each has contributed to the development of modern legal theory in its own way.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

UNIT-II
The word “Law” refers to various types of rules and principles. Law is a tool that controls how
people behave. In society, law represents concepts like fairness, ethics, logic, order and what’s
considered right. From a legislative standpoint, law encompasses statutes, acts, rules,
regulations, orders and ordinances.

From a judicial perspective, law includes court rules, decisions, judgments, court orders and
injunctions. So, law is a broad term covering acts, statutes, rules, regulations, orders, ordinances,
justice, ethics, logic, court rules, decisions, judgments, court orders, injunctions, civil wrongs,
legal philosophy and legal theories.

What is Law?
The term “law” holds three primary meanings. Firstly, it signifies the concept of a “legal order.”
This refers to a structured system that governs relationships and directs proper conduct through
the organised and authoritative influence of a political society. It establishes a framework for
resolving conflicts and maintaining order by employing the regulated force of the governing
body.

Secondly, “law” encompasses the entirety of legal precepts existing within a politically
organised community. It encompasses a comprehensive collection of rules, regulations and
principles that guide the behaviour of individuals and institutions, ensuring a functioning and
orderly society. This body of legal principles forms the foundation upon which the society’s
operations and interactions are built.

Thirdly, the term “law” extends to encompass all forms of official control operating within a
politically structured society. This encompasses not only the theoretical constructs of law but
also the practical application of justice. It involves the implementation of established legal
principles to resolve disputes and uphold fairness in society. This aspect of law distinguishes
between the theoretical guidance provided by legal frameworks and the active execution of
justice by authorities.

In a narrower sense, “law” can refer specifically to civil law or the legal regulations governing a
particular geographic region. This definition emphasises the tangible and operational aspects of
the legal system that govern daily interactions, disputes and matters of societal importance.

Purpose of Law
Law serves various purposes, with four primary standing out:

Maintaining Order

Law acts as a derivative of establishing societal norms. Similar to how a civilised society
necessitates shared values, law provides a consistent framework. Enforced law ensures
alignment with society’s guidelines. For example, wildlife management laws safeguard and
preserve game for future generations.

Establishing Standards

Law sets a benchmark for acceptable conduct within society. It designates actions that are
considered criminal, indicating society’s stance on behaviours that could harm individuals or
their belongings. For instance, causing unjustifiable harm to another person is a crime,
constituting assault.

Resolving Disputes

In societies encompassing diverse desires, needs and values, disputes are inevitable. Law offers a
formal avenue for resolving these conflicts, often through the court system.

Protecting Liberties and Rights

Constitutions and statutes grant various rights and freedoms to individuals within their respective
jurisdictions. One of the crucial functions of law is safeguarding these rights from unjust
infringement by entities like governments or individuals. Should someone perceive their right to
free speech violated by the government, legal recourse is available through court proceedings.
These key purposes of law collectively underscore law’s role in upholding societal order,
defining acceptable conduct, settling disagreements and safeguarding individual liberties and
rights.

Functions of Law in Jurisprudence

The functions of law in jurisprudence have been a subject of diverse perspectives among jurists.
Law is recognised as a dynamic concept that evolves with time and location, adapting to societal
changes. Its contemporary interpretation positions law not merely as an end but as a means to
achieve an end – the attainment of social justice. The consensus among theorists is that law
serves as a key instrument for ensuring justice.

One viewpoint, articulated by Holland on functions of law asserts that law serves the greater
welfare of society, transcending its role as a mere safeguard for individual rights.

Roscoe Pound identified four key functions of law: the preservation of law and order, the
upholding of societal equilibrium, the facilitation of individual freedom and the satisfaction of
fundamental human needs. He perceived law as a form of social engineering, constructed to
optimise the welfare of both individuals and the state.

Realists propose that functions of law in jurisprudence advance the best interests of individuals
and the state, acting as a regulatory force.

Salmond’s perspective on the essence of law is logical. The term “law” encompasses a wide
array of rules and principles. It functions as a mechanism regulating human behaviour,
signifying justice, ethics, reason, structure and authority within society’s framework. It also
pertains to legislative components such as laws, acts, rules, regulations, orders and ordinances.

From a judicial standpoint, it involves court decisions, decrees, judgments, court orders and
injunctions. This expansive definition encapsulates acts, laws, rules, regulations, orders, ethics,
justice, reasoning, fairness, court procedures, decrees, judgments, injunctions, legal wrongs,
legal philosophy and theories.

Throughout human civilisation, regulations have been integral to societal functioning. Rules
have been established to guide behaviour, enabling harmonious coexistence. The functions of
law in jurisprudence are not only to establish standards for conduct and safeguard freedoms but
also to furnish a mechanism for resolving conflicts. It empowers parties to enforce commitments
through legal proceedings.

Law extends to the business sphere, prescribing guidelines for employment, regulatory
adherence and internal operations. Its presence curbs chaos enhances compliance and safeguards
harmony within the business environment and broader society.

Conclusion
The purpose of law is to establish societal order by setting standards, guiding behaviour and
resolving disputes. The law safeguards individual rights and freedoms, ensuring fairness and
justice. It acts as a framework for maintaining harmony, regulating conduct and offering avenues
for conflict resolution. Additionally, law adapts to societal changes, serving as a means to
achieve social justice. The function of law extends beyond a mere set of rules, actively
contributing to the well-being and stability of communities and individuals.
Seven Types of Laws
Law is a complex and multifaceted field that encompasses various branches and categories.

The legal system encompasses seven primary types of law that form the basis for our
understanding and application of justice. The seven types of law are constitution (the supreme
body of law), statutory law, common or case law, civil law, criminal law, equity law and
administrative law.

Constitution Law
At the pinnacle of legal systems, constitutional law establishes the fundamental principles and
rules that govern a nation or state. It defines the powers and limitations of different branches of
government, safeguards individual rights and sets the framework for the legal system. A
constitution serves as the supreme body of law, providing a foundation for all other laws within
a jurisdiction.

Statutory Law
Statutory law, also known as legislative law, comprises written laws passed by legislative bodies
such as parliaments or congresses. These laws are enacted to regulate society and cover a wide
range of areas, including criminal offences, business regulations, tax laws and more. Statutory
laws are codified and are binding upon all citizens within the jurisdiction.

Common or Case Law

Common law, also referred to as case law, is derived from judicial decisions made by courts and
tribunals. It is based on precedents established through prior court rulings, which become
binding on future cases with similar facts. Common law systems rely heavily on the principle of
stare decisis, which means that courts adhere to previous decisions when deciding current cases.
This type of law is prevalent in countries with a legal system rooted in English traditions, such as
the United States, Canada and Australia.

Civil Law
Civil law governs the relationships and disputes between individuals or entities that do not
involve criminal offences. It encompasses private matters, including contracts, property, family
law, torts and more. Civil law is codified and relies on a comprehensive set of statutes,
regulations and codes that outline the rights and obligations of the parties involved. In civil
cases, the aim is to provide compensation or remedies to the affected parties rather than impose
criminal sanctions.

Criminal Law
Criminal law deals with offences against society as a whole and establishes punishments for
individuals who violate established laws. It encompasses crimes such as theft, assault, murder,
fraud and other acts that are deemed harmful to public order and safety. Prosecution occurs when
the state charges an individual or entity with a crime and if found guilty, the offender may face
penalties ranging from fines to imprisonment, depending on the severity of the offence.

Equity Law
Equity law operates alongside common law and aims to provide fairness and justice in cases
where the application of strict legal rules may lead to unjust outcomes. Equitable remedies, such
as injunctions, specific performance and constructive trusts, are issued by courts to prevent
harm, enforce rights or provide remedies when monetary compensation is insufficient. Equity
law is based on principles of fairness, conscience and the discretion of judges.

Administrative Law
Administrative law governs the actions and operations of administrative agencies, departments
and other governmental bodies. It regulates the relationship between citizens and the state,
ensuring that government actions are lawful, fair and transparent. Administrative law covers
areas such as immigration, taxation, licensing, environmental regulations and social security. It
provides a framework for the exercise of public power and allows individuals to challenge
administrative decisions through judicial review.

Conclusion
Understanding the seven types of law is essential to grasp the intricacies of the legal system.
From constitutional law, which lays the foundation for all other laws, to administrative law,
which governs governmental actions, each type plays a unique role in upholding justice and
maintaining order in society. By familiarising ourselves with these types of law, we can navigate
legal matters more effectively and appreciate the complexities of the legal profession.

Morality and Law:A Critical Evaluation

The present piece of work deals with the conception of moral policing with respect to law. For
the past few years, there has been emerging a new group of people, known as ‘moral police’.
These groups tend to categorise certain activities as “western” or “pashchatya sabhyata”,
meaning, the culture which has come from west and then bully or carry out violent marches
against people who they find as being part of that culture. The aim of this article is to provide a
clear picture of effect of such moral policing and its implication in law. Also, can law be used to
enforce morality? If yes, the extent of such use has been discussed.

Introduction
The culture of India is as ancient as time. India’s glorious past lies with its ancient tradition and
culture as the most ancient civilization flourished in this land. This land has witnessed the
diverse forms of traditions and ethnicities and somehow the blend of all of them. Although, this
culture is known for being dynamic with the trends and settings of the modern world, this
doesn’t mean losing authenticity but shows its tendency to bend with changing minds and needs
of people. However, there are some vigilante groups of people who do not favour this change.
According to them, change is ‘obscene’ and thus can destroy the chastity of Indian culture.

They especially oppose those trends that have western influence. As such, it is important to
remember that somebody having a different opinion does not automatically become wrong. In a
country like ours, there is no shortage of people who think showing everyone the “right path” as
their prime duty. Never mind if it is truly right or not, never mind if “showing” translates to
“forcibly imposing”. For a country that is quickly developing, eager to carry the progressive tag,
we perhaps need to leave a few outdated ideas in the past.
What is Moral Policing?
As mentioned earlier, vigilante group of persons who are deemed to be the torch bearers of
society, often tries to show the right path, or to be more precise the moral path. We often come
across instances of couples being attacked in parks and cafes, lathi charges and violent
demonstrations on Valentine’s Day, attacks on bars, pubs and liquor shops, etc. Two persons
attacked a woman and her brother in a suspected case of moral policing at Engapuzha in
Kozhikode district.[1] In a horrifying case of moral policing in Kerala’s Kollam district, a 34-
year-old woman was accosted, attacked and brutally injured by a gang of 4 men in
Pathanapuram. The victim has been identified as Shalini, a widow, a domestic worker and
mother of 2 children from Pathanapuram.[2]

Often these instances are carried out by police officers also.[3] The target of moral policing is to
stop or prevent any such activity that vigilante groups, the government or police deem to be
“immoral” and/or “against Indian culture”. They resist and oppose cultural concepts that they
deem to have been imported from the Western culture.

Morality and Law: The Regulators Of Conduct

Both law and morality serve to channel our behaviour. Law accomplishes this through threat of
sanctions and morality through the incentives of virtue and praise. The establishment of legal
rules is not very expensive process as it requires a law making body and that the rule is properly
implemented. On the other hand, establishment of moral rules is comparatively expensive as it
occurs through socialization and inculcation. The enforcement of moral rules is highly effected
through both internal (the guilt of not doing so) and external incentives (feeling of shame and
disapprobation). Thus, morality can be understood as something inherent and virtuous. It cannot
be imposed by threat, punishment or violence. It can only be inculcated through the holistic
development of an individual and ultimately of a society as a whole.

Necessity of Law to Enforce Morality

It is true that morality can neither be taught nor can be learned, through the sanctions and
punishment. However, it is equally true that morality and law cannot be separated. If we sought
to achieve a moral society without the protection of law it is more likely that the basic rights of
an individual may get abridged. Morality does not has any yardstick to measure, that what
conduct of an individual is wrong and what is right, as what is right for one can be wrong for
another. Law lays down such measurements in which particular conduct can be termed as wrong.
For example, spitting in public area is wrong morally and also it is made wrong in the eyes of
law. This view can differ for individuals but law has made it uniformly applicable to all.
Similarly, obscenity is made an offence under the law which is also a moral wrong.[4] The
dilemma is, it has not been furnished with a precise definition and as such this term has been
made subject to multiple interpretations. Moral policing is one such consequence of this vague
interpretation.

Public morality and decency is both a moral norm and legal rule, the moral police uses these
norms to impose their own ethics and ideologies to public at large. But, as said above, what is
wrong for one is not necessarily wrong for the other. Thus, a precise and unambiguous code of
conduct should be decided by the law so that the morality cannot be used to serve the vices of
any group or individual. It can become a weapon to exploit and violate the rights of whom they
think do not fit to their morals.

Can Law Be Used to Enforce Morality?

Now lets us encounter to this question which can sum up this entire discussion. Morality comes
through inculcation and socialisation. It is a moral appeal that comes from within, that a
particular act or omission is correct or not and also the incentives of appreciation and criticism
compels one to do or not to do anything. Hence, morality cannot be imposed by law.

But, enforcement of law can establish morality. If a sound administrative and legal system works
at every level to ensure that the every wrong has been punished and every right is appreciated
then there cannot be any moral policing or like. From the police officials to the supreme
guardians of rights, i.e., the Judiciary should be equally responsible for recognising law and its
implications. Any vague conduct or response by them can destroy the very essence of
democracy and thus the soul of the country, which ensures right to freedom to every citizen.

Politics How Far Responsible

The Sri Ram Sene (SRS), or ‘Lord Rama’s Army’, created headlines in January after its
members chased, slapped and kicked young women drinking at a bar in Mangalore, Karnataka.
Two couples were stopped by Shiv Sena activists and forced to “marry” on the spot by
exchanging flower garlands. Shiv Sena city unit chief Nana Wadekar said, “Shiv Sena is against
Valentine’s day because it encourages obscene and vulgar acts.[5]

Any discussion on the rights in India must take into account that how power and politics
perpetuate poor law enforcement and legitimise unresponsive institutions (including the police)
and turn democracy into majoritarian rule. We need to accept the importance of the political
economy of policing in understanding why our police officers fail to protect the laws of the land.

In 2013, as per the data collected by the Bureau of Police Research and Development (BPR&D),
almost 80% of superintendents of police (SPs) in districts across the country got transferred
within two years of their tenure in a district. More than 50% got transferred in less than a year.
Since postings and transfers take place according to the whims and fancies of the ruling
dispensation of the day despite the Supreme Court directives in Prakash Singh case[6], it is only
logical that police officers will go out of their way to accommodate the illegal political and
economic demands of their political masters based on vote bank politics.

Conclusion
India is home of multiple and diverse tradition and ethnicities. Being a dynamic culture, it is
flexible enough to stretch its boundaries to include the modern trends and cults. As such it will
be wrong to interpret as something wrong or absurd just because it is western or modern and
does not resembles with the ancient and orthodox trends of Indian culture. In such a set up each
group interprets ‘public indecency’, ‘public obscenity’ and ‘morality, through their own moral
compass hence it’s more than obvious that an act it going to end up offending one or the other
section of the society.

Therefore, it can be articulated that moral policing is an evil to a sound society as imposing
one’s self moral norms on the other is not correct and can even devastate the essential liberties of
other. Also, a law itself cannot enforce morality but an efficient system of law enforcement will
ultimately establish morality.

What is Administration of Justice?

Administration means management and justice means doing what is fair and right. When we talk
about the administration of justice, we are talking about how a government keeps things fair and
right within its borders by using its power to enforce the rules. To make sure justice is done, a
government needs to have the power to use force when necessary. There are two important
things every government must do:

 Protect the country from enemies and

 Keep things fair and right within its borders.

According to Salmond, a government is a group of people living in a specific area who are
organised to keep order and fairness by using force when needed. Governments make and
enforce laws to maintain peace and keep society safe. If a government can’t do this, it can’t
really be called a government. The main job of the administration of justice is to protect people’s
rights, make sure laws are followed and punish those who break the law.

Administration of justice refers to the system and processes through which laws are enforced and
disputes are resolved within a society. It encompasses the application of legal principles, the
investigation of alleged violations and the imposition of sanctions or remedies when individuals
or entities breach established rules and rights.

The administration of justice can be defined in three key points:

 A Politically Organised Society: This means that there is a structured government or society in
place to oversee and manage how things are done. It’s not a free-for-all; there are rules and
order.
 The Use of Government Force: The government has the authority and power to use physical
force when necessary to maintain order and ensure that people follow the rules and laws.
 The Goal of Upholding Rights: The primary aim is to ensure that everyone’s rights are protected
and respected. It’s about making sure that people are treated fairly and justly within the society.

Objectives of Administration of Justice

The primary objectives of the administration of justice are to maintain order, protect individual
rights, ensure fairness and uphold the rule of law.

This multifaceted concept includes both criminal and civil justice systems, with the former
focusing on the punishment of offenders and the latter on providing remedies and compensation
to those who have suffered harm. A well-functioning administration of justice is essential for
promoting social harmony and resolving conflicts within a community.

Origin and Growth of the Administration of Justice

It is human nature to want to live together in a community. We are social beings and this social
nature compels us to be part of a society. However, when people live together, their different
interests can sometimes lead to conflicts, which is why we need a system for administering
justice. In the early days, people would turn to their elders to settle disputes among them.

This marked the beginning of the development of human societies, progressing from simple,
natural communities to more complex and civilized ones. This progression is considered the
historical foundation for the evolution of systems to administer justice.

As the need for a formal system of justice became evident, the concept of the State was born. In
the beginning, these early forms of the State didn’t have the strength to effectively control crime
and punish wrongdoers. However, today, we have Magistrates and Judges who are responsible
for carrying out this essential function.

According to Hobbes, he believed that a common power, in the form of a government or

authority, is necessary to keep people in check within a community. He argued that without this
common power, individuals would be unrestrained and chaos could prevail. In his words, unless
people are under “a common power to keep them all in awe,” society will struggle to maintain
order.

Advantages of Administration of Justice

Uniformity and Consistency in Law

The administration of justice ensures that laws are applied consistently and uniformly. This helps
in the systematic development of the legal system, making it fair and predictable.

Collective Wisdom

The rules of law are a reflection of the collective wisdom of the community. Following these
rules reduces the chances of making wrong decisions. As Sir Edward Coke noted, the wisdom of
the law surpasses any individual’s wisdom and justice represents the wisdom of the entire
community.

Consistent Application

With fixed rules in place, judges can apply the law consistently, ensuring that similar cases are
treated similarly.

Regulation of Conduct

When citizens know the law, they can regulate their behaviour accordingly. This promotes a
law-abiding society where people understand the boundaries and consequences of their actions.

Disadvantages of Administration of Justice

Rigidity

Legal justice can be inflexible. Societal changes often occur more rapidly than changes in legal
systems, leading to situations where the law may not adequately address new challenges.

Technicalities and Formalities

Legal justice can be filled with technical jargon and formal procedures, making it complex and
difficult for ordinary citizens to navigate without legal assistance.

Complexity

Society is intricate and dynamic, requiring complex laws to address its evolving needs. This
complexity can sometimes lead to confusion and difficulties in interpretation and enforcement.

Unintended Consequences

While the law serves as a remedy for many problems, it can also have unintended negative
consequences, as noted by Salmond. Sometimes, the legal system itself can create new issues or
injustices.

Types of Administration of Justice

Criminal Administration of Justice

The administration of criminal justice deals with public wrongs, which are offences outlined in
the Indian Penal Code (IPC). Its primary aim is to punish offenders. Punishment, in this context,
refers to the imposition of consequences, typically considered undesirable (e.g., imprisonment or
death penalty), by the state authority upon individuals found legally guilty of committing a
crime.

The primary objectives of criminal justice are to punish wrongdoers (offenders) and maintain
law and order in society. The state is responsible for punishing criminals. Punishment serves
various purposes, including deterring individuals from repeating crimes, expressing society’s
disapproval of antisocial behaviour and seeking to reform and rehabilitate offenders while
protecting society from criminal activity.

Civil Administration of Justice

Civil justice administration aims to provide relief, often in the form of compensation or other
remedies, to the injured party. It deals with the enforcement of two types of rights: primary
rights and sanctioning rights.

Primary rights are those inherent rights that exist independently and do not stem from any
wrongdoing.

Sanctioning rights emerge as a result of the violation of primary rights. When a primary right is
infringed upon, a sanctioning right comes into play. For instance, if a valid contract (a primary
right) is breached, the right to claim damages for the losses suffered due to the breach becomes a
sanctioning right.

Primary rights can be enforced through specific performance while sanctioning rights are
enforced through sanctioning enforcement proceedings.

Conclusion
A just society is one where the administration of justice is not only robust but also reflective of
the core values of its people. It stands as a testament to a society’s commitment to upholding the
principles of fairness and equality, ensuring that the rights and dignity of every individual are
safeguarded.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

UNIT- III
Sources of Law: Meaning and Types
Law refers to rules or regulations backed by legal authority. It act as a guideline and applicable
to all. Law is what state commands or it is a will of sovereign. Law help to govern the behaviour
and help to obtain conformity. Violation of law results in punishment. In civil society law plays
a very crucial role. Society cannot work smoothly without law. Thomas Hobbes describes the
situation of war against all when there is no sovereign. His book “Leviathan” describes the state
of nature. Purpose of law is to ensure that the justice is served and help to resolve conflicts.
There are multiples sources from where law is derived such as customs, legislation, religion,
judicial decision, precedent, etc.

WHAT IS SOURCES OF LAW?

Since we have seen that there are several sources of law, in this paper we would deal with three
main sources i.e. customs, precedent and legislation. Customs are known to be oldest source of
law. Along with customs, traditions, norms and values also played important role in
establishment of law. Laws are also inspired from religion and morality. After 13th century,
legislation emerges as a major source of law. In a contemporary era, judicial decision also acts as
an important source of law. Other sources of law are Justice, Equity and Good Conscience.

1. CUSTOMS
1.1. Meaning

Customs can be defined as unwritten rules or practices that are widely followed by people and
have obligatory nature. During ancient times people were governed by customs. Later these
customs were adopted by other major social institutions. It took a stricter form when it was
adopted by legal or political entity. It has a long history of its conversion into law. It can be
better understood through a live example. During Hindu marriage ceremony, couple is supposed
to take seven round of holy fire. This is a well-established custom and this customary practice of
seven rounds was codified in section 7 of the Hindu Marriage Act, 1955.

1.2. Essentials

All customs cannot be recognised as a law. There are some essentials that customs must possess
to be eligible of becoming a law. In the following paragraph we would be discussing the same.
Customs must be practicing for a long period of time (antiquity). It must be known to all not
practice secretly. Moreover, it need to be reasonable in nature and doesn’t violate the morality or
established norms and values of the society. In addition to it, custom must not be opposite to
prevailing legislation. There are several cases where customs are abrogated by law (e.g. Child
marriage, dowry, etc.).

1.3. Types

Customs are broadly divided in two categories: customs without sanctions and customs with
sanctions. Customs without sanctions does not have any legal backing. They were merely
followed since people are practicing it. Whereas customs with sanction is obligatory in nature.
Customs with sanction are of two types: legal customs and conventional customs. Conventional
customs are binding on the parties to an agreement.

2. PRECEDENT
2.1. Meaning

Precedent or judicial precedent played very important role in a legal system of any nation. It is
neither too old as customs not modern as legislation. Judicial precedent simply means previous
decided judgments. It is binding on lower court.

Hierarchy plays very important role in deciding who has to follow whose decision. Higher court
is bind to follow judgement of Supreme Court. Other High courts are subordinate to each other
and judgement of them holds persuasive value. This hierarchical structure is given in our Indian
constitution. Court plays very crucial role in interpretation of law and gives it wider aspects.
2.2. Essentials

Judicial Precedent is binding in nature. It is hierarchical in nature as authority is seen while

determining who has to follow whose judgement. It is also known as judge made law. Judge
plays important role in widening the law.

2.3. Types

Precedent has two parts: Ratio Decidendi and Obiter Dicta. Only ratio decidendi is binding in
nature. It gives that reason used by judge while giving decision. Lower courts are obliged to
follow it when same question of law arises. Whereas obiter dicta does not hold any binding
authority. It is a general observation of the judge and it only has persuasive value over lower
court.

3. LEGISLATION
3.1. Meaning

Legislation word is derived from Latin language. It literally means “making the law”. It is one of
the important sources of law since it is backed by legal authority.

It is widely recognised by other institutions. It has two meanings: first it means law making
process and secondly, it means law itself.

3.2. Essentials

From its meaning itself, essentials can be derived. Following are some of the main essential:

a. Legal backing

b. It is a law making process

c. Recognition etc.

3.3. Types

Legislation can be divided into two parts: supreme legislation and subordinate legislation.
Supreme legislation means law passed by Parliament. Subordinate legislation is made by
authorities who are subordinate to the supreme authority or the delegated authority of the
sovereign. Followings are the part of subordinate authority:

a. Autonomous Law

b. Judicial Rules

c. Local laws

d. Colonial Law

e. Laws made by the Executive

Customs as a Source of Law

Introduction
Customs are the earliest sources of law and form the basis of the English Common Law system
as we see it today. They can be described as cultural practises which have become definite and
backed by obligation or sanction just by virtue of widespread practise and continue presence.

Definitions
“Custom is the embodiment of those principles which have commended themselves to the
national conscience as principles of justice and public utility.”

For Salmond, a valid custom has absolute legal authority which as the force of law in itself. He
divides Customs into two:

1. General Custom – A general custom has the force of law throughout the territory of a state. For
example, the Common Law in England.
2. Local Custom – The local custom are those which operate have the force of law in a particular
locality. The authority of a local custom is higher than that of general custom.

3. C.K. Allen defines custom as “legal and social phenomenon growing up by forces
inherent in society—forces partly of reason and necessity, and partly of suggestion and
imitation.”

J.L. Austin
4. “Custom is a rule of conduct which the governed observe spontaneous and not in
pursuance of law settled by a political superior.”
5. Austin’s ideas were often seen in contravention to customary law because for him, the
political superior was the only source of law and customs were not ‘real law’. They
needed the assent and command of the Sovereign to be considered law.

Origin of Customs
In primitive societies, there was no external authority over people, yet people organized
themselves in cohesive groups with a mechanism for fairness and liberty.

People developed rules and regulations through spontaneous reaction to their circumstances as
well as a coordinated conscious decision to arrive at them.

Eventually, people started recognizing traditions, practises, rituals which were prevalent in a
certain territory or group, and saw how they formed a systematized approach to social
regulation.

In Britain, Jurists and legislators started studying these patterns, recording their prevalence,
usage and applicability. These came to be known as customs, which were then formalized and
put into legislation in the Common Law of England.

There are two philosophers with alternate views as to how customs originate.

Sir Henry Maine

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or
judgments.” Themistes were judicial awards which were dictated to the King by the Greek
goddess of justice. He explained, “Themistes, Themises, the plural of Themis, are the awards
themselves, divinely dictated to the judges.

He described the development in distinct steps. These are:

1. Law by rulers under divine inspiration

At the first stage, law was given by rulers who sought divine sanction for their commands. They
were believed to be messengers of God, laying out the law for the people.

2. Developing of Customs

Gradually, as people get into the habit of following the dictates of their rulers, they develop into
customary law, and becomes a part of people’s daily living.

3. Knowledge of law in the hands of priests

The knowledge of customs and practises is then studied by a minority, primarily religious
people. This is possible due to the weakening of the power of the rulers over people. Priests
study customs, recognize patterns, understand their relevance and formalize customs.

4. Codification

The last and final stage is that of codifying these laws. Priests study customs meticulously and
put it on paper. This code is then promoted and spread to newer areas and territories.

T. Holland
According to Holland, “custom is a generally observed course of conduct”.

Holland says that custom originated in the conscious choice by the people of the more
convenient of the two acts.

For Holland, customs grow through imitation. In early political societies the king or the head of
the society did not make laws but administered justice according to the popular notions of right
and wrong, whichever were enshrined in the course of conduct pursued by people- in general.
What was accepted by the generality of the people and embodied in their customs was deemed to
be right and which was disapproved by them or not embodied in their customs was deemed to be
wrong.

Types of Customs
There are two broad categories into which customs can be divided. These are customs without
binding obligation and customs with legally binding obligations.

Customs without binding obligation

These customs are not enforceable by law, but are still prevalent in society and have societal
sanctions attached to them.

For example, every society has some customs about how to dress, how to address elders or how
to conduct marriages etc. These are not legally binding but can still have powerful sanctions
attached to them. For example, if a person comes to a funeral wearing colourful clothes, he will
be ostracized and alienated by others around him.

These customs, although not binding, hold tremendous importance in society and must be
followed uniformly for efficient functioning of society.

Every one of these customs are pursued because of the fear that non-recognition of such customs
may lead them to be socially outcasted. Such customs are non-authoritative as in they are not
mandatory to pursue. Individuals follow them due to the social pressure of society. At the point
when a custom of this sort is abused, society typically responds by demonstrating social dismay
or ostracization; however it has no sanction in the true sense of the term. Such customs can be
called as ‘Social Customs’.

Customs with binding obligations

In this classification those customs are discussed which in an objective and stringent sense are
viewed as the particular obligations and commitments of men. Such customs may direct the
commitment of marriage and the upbringing of children,the transmission of property etc.

Such customs don’t relate to the circle of social conventions, outward propriety, or style; rather,
they are worried about the genuine business of society, the work that must be practiced
in request to verify and ensure necessary conditions for community living.

Customs under this category have sanctions which are more stringent than the previous category.
If these customs gain widespread acceptance, they acquire legal character. On violation of these
customs, adequate penalty is incurred by the violator as per the statute that governs the particular
custom.

These can be further divided into Legal Customs and Conventional customs.

Legal Customs

The sanction of a legal custom is certain and absolute. It is negative in its operation, in the sense
that, if the custom is not followed, certain desired consequences would not take place. For
example, if you do not follow the custom of marriage properly, that marriage will be considered
void and any children born out of that marriage will be considered illegitimate.

Legal custom is operative per se regardless of any agreement of participant parties contrary to
the custom. They are unconditional and absolute in their function and take up the form of law.

They are obligatory rules of conduct on not based on faith or convention.

According to Salmond, Legal Customs have legal obligation in itself or proprio vigore. He
divides legal customs further into General and Local Customs which have been discussed earlier.

Conventional Customs

According to Salmond, ‘A conventional custom is one whose authority is conditional on its

acceptance and incorporation in agreement between the parties to be bound by it.’

A conventional custom or usage is a practice which comes into practise due to it being followed
for a long period of time and arising out of a contract between the parties; it does not have any
legal character in itself. Thus, a usage or conventional custom is an established norm which is
legally enforceable, not because of any legal authority independently possessed by it, but
because it has been expressly or impliedly incorporated in a contract between the parties
concerned.

Conventional custom may, again, be divided into two types—General Conventional

Customs and Local Conventional Customs. General Conventional Customs are extensively
practiced throughout a particular territory; whereas Local Conventional Customs are limited to a
particular place or to a particular trade or transaction.

Requisites of a Valid Custom

Reasonability
A custom must be in conformity with basic morality, the prevailing understanding of justice,
health and public policy. If it is not reasonable in its origin or practise, it cannot be considered a
valid custom. For example, Sati was an accepted custom once, but with the modern moral
understanding, it is reprehensible, and therefore it cannot be considered a custom today.

This, however, does not mean that every custom must be perfect in its morality or ethical
concerns, or contain eternal wisdom, it just needs to be relevant to contemporary times, useful
and capable of being legislated on.

Conformity with Statute Law

No custom can be in contravention to the existing law of the land. Any practise, however
widespread and accepted, if found in violation of any statute of a said territory cannot be
considered a custom.

Certainty
It must be clear and unambiguous as to what the custom is and how it is practised. A custom can
only hold up in a court of law when it is not indefinite or uncertain. It needs to be absolute and
objective in theory and in action.

Consistency
A custom must be consistent with the general principles of Law which form the basis of every
law or statue which exists. These principles form the basis of ideas like Justice, fairness and
liberty, and every custom must be in consonance with these.

Antiquity
It is necessary for the custom to have been followed for time immemorial. The practise must be
so ingrained in society, that legislating it seems like the only natural step. Recent or modern
practises cannot be custom until they become firmly established in society.

Continuity
A custom must not be interrupted or its practise must not be sparse. It needs to be continuing for
time immemorial without any interruption.

Must be peaceful in its practise

Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered a
custom.

Must not be opposed to Public Policy

Whatever the public policy may be of the state the custom is operating in, has to be conformed
to.

Must be General or Universal

According to Carter,“Custom is effectual only when it is universal or nearly so. In the absence
of unanimity of opinion, custom becomes powerless, or rather does not exist.”

Theories of Customs

Historical Theory
As indicated by this school, custom contains its own legitimacy, since it would not exist at all
except if some profound needs of the general population or some local nature of societal needs
offer validity to it.

The development of law does not depend upon the subjective will of any person. It because of
the knowledge of the communities and civilizations that have existed throughout history.

Custom is achieved from the common conscience of the general population. It springs from an
innate feeling of right. Law has its reality in the general will of the people. Savigny calls it
“Volkgeist”.

Analytical Theory
Austin was the main proponent of the Analytical theory. For him, Customs did not have any
legally binding force in themselves. Their legal character is always subject to the assent of the
Sovereign. For him, customs were merely reflection of law, and were not ‘real law’. Customs
need the modification and the approval of judges, jurists or rulers for them to have any binding
force on people. This is in consonance with his idea that all law is the ‘Will of the Sovereign”.

Conclusion
Therefore, it can be seen that Customs are a very important source of law, which have their
historical roots in the earliest and most primitive of societies, and still hold relevance. Society is
constantly in the process of establishing newer practices which might in due time turn into
usages or customs.

We depend on customs and are governed by them, knowingly or not. The English Common law
can be interpreted as a formalization of existing customs, and therein lies the importance of
having the right customs in society.

Precedent & Other Sources of Law

Introduction
A precedent is the assertion of law that is discovered in the decision made by the Supreme Court,
whereby the decision must be followed by itself as well as all the lower courts. The judges must
follow the past decisions cautiously in the cases before them and use it as a manual for all
present or future decisions. Thus, judicial precedents act as a source for future decision-making.

Doctrine of Precedent
According to Keeton, “a judicial precedent is judicial to which authority has in some measure
been attached.”

According to Salmond: “In a loose sense, it includes merely reported case

law which may be cited and followed by courts. In a strict sense, that case law not only has
great binding authority but must also be followed. In all precedents is the
authority of past decisions for future cases. It must be reported, cited, and followed by
courts”

The primary object of the doctrine of precedent is that the laid down laws ought to be clear,
certain, and reliable so that the Courts shall follow them decisively.

Moreover, R. S. Pathak, C. J. in Union of India v. Prithpal Singh stated that:

“The doctrine of binding precedent has the merit of promoting a certainty and consistency in
judicial decisions, and enables an organic development of the law, besides assuring the
individual as to the consequence of transactions forming part of 4 daily affairs. And, therefore,
the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”

In-State of U.P. v. Synthetics & Chemicals Ltd[3], the Court held that:

“any declaration or conclusion arrived without application of mind or preceded without any
reason cannot be deemed to be a declaration of law or authority of a general nature binding as
precedent…. A conclusion without reference to the relevant provision of law is weaker than even
casual observation”.

Stare decisis: When the Court settles an issue, a contention, or a dispute between parties, it turns
into the law on those issues and disputes. Such a decision is termed to be a precedent. A
precedent is an assertion of law found in rulings of the prevalent court. The cases dependent on
comparable facts decided by a court may emerge in any future case. Following past rulings in
present or future cases, the court may save time and uniformity in decisions, carrying
consistency to law. The court settles a question of law or fact, it is ideal to remain by that
decision while deciding alike cases later on. Before deciding a case, the Judges investigate into
precedents if any. They then apply the precedent on current issues or cases before them.

The reason behind the decision is an important factor. The explanation and standards on which a
court gives its ruling in a case structure a precedent.

In the case of Commissioner of Income Tax V. Sun Engineering Works Private Limited[4]
the Court held that “while applying the decision to a later case, the court must carefully try to
ascertain the true principle laid down by the decision of the Supreme Court and not to pick out
words or sentences from the Judgment divorced from the context of a question under
consideration by the court to support their reasoning.”

Precedent as a source of law

Judicial Precedents are an important source of law. They have enjoyed high authority at all times
and in all countries. Judicial precedents are an important source of law, especially when it comes
to the common law system. It needs to be noted that the common law system evolved and
evolves due to judicial precedents.

According to Salmond: “The great weightage of the unwritten law is almost entirely the product
of outside cases, collected in an enormous series of reports extending backward, if it’s not in
theory, the common law of England has been created by the decisions of English judges.”
Blackstone writes: “For it is an established rule to respect the former precedents, where the
same points come again in litigation, as to keep the rule of justice even and different and not
liable to with every judge’s opinion, as also because the law, in that case, being perfectly
declared, what before was uncertain has now become the permanent rule, subsequent judge to
alter according to private opinions.”

This principle isn’t just the evidence of laws but also the source of law. It is a way to persuade
the judges. Cases decided by the court with no thought on rule of law, cannot be treated as
precedent[5]

But according to some authors such as Stobbes and Savigny, Precedents are not sources of law
but are mere evidence of customary law.

According to Stobbes “Judicial Precedent is a practice and hence a in practice itself cannot be
considered as a source of law.”

It is a settled position that precedents are purely constitutive and in no degree propagative, that
is a Judicial decision can make a law but not alter it.

Binding effect of Precedent

Article 141 of the Constitution states that: “Law declared by Supreme Court to be binding on
all courts – The law declared by the Supreme Court shall be binding on all courts within the
territory of India.”[6]

This article institutes that the law announced by the Supreme Court will be restricting “all
courts” in the region of India. The term “law declared” infers the law-making function of the
court. The expression ‘all courts’ means the lower courts. The decision of the Supreme Court is
restricting on the High Courts and they can’t overlook it on the ground that pertinent rules were
not considered by the Supreme Court while the decision was made and therefore its decision is
not binding[7]. The judges must follow the past decisions cautiously in the cases before them
and use it as a manual for all present or future decisions [8]. The law pronounced by the
Supreme Court is restricting on the State and its officials, and they will undoubtedly follow it
whether the respondents in a specific case were parties or not to the petition[9]. Even the orders
released by the court in a ruling are considered to be a binding law under Article 141. The
Supreme Court has the power to overrule its prior decisions[10] by either explicitly overruling it
or implicitly by not following it in future cases. They have the power to reverse their decisions
on constitutional matters if they think it is flawed.

In Sajjan Singh v. the State of Rajasthan[11], the Supreme Court said:

“Indeed, the Constitution does not place any restriction on our powers to review our earlier
decisions or even to depart from them and there can be no doubt that in matters relating to the
decisions of constitutional points which have a significant impact on the fundamental rights of
citizens, we would be prepared to review our earlier decisions in the interest of public good. The
doctrine of stare decisis may not strictly apply in this context and no one can dispute the
position that the said doctrine should not be permitted to perpetuate erroneous decisions
pronounced by this Court to the detriment of the general welfare.”

Even so, the general instruction that judgments given by the Supreme Court would be binding,
ought not to be disregarded and unless factors of significant and persuasive appeal make it
necessary to do so, the Supreme Court would be delayed to question the rightness of past choices
or to withdraw from them. However, the Supreme Court will audit its previous ruling even
though the ruling has held the field for an extensively significant time-frame, on the off chance
that it is satisfied with its mistake or the pernicious impact which a decision would have on the
overall interest of the general public, or if it is “inconsistent” with the philosophy of our
Constitution[12]. If there is an obvious struggle between decisions of the Supreme Court, the
opinion presented by bigger Benches of the Supreme Court should be continued in inclination to
those of smaller Benches, except if the former can be recognized by giving reasons. Regardless
of whether out of oversight or in any case a Constitution Bench ruling of at least five judges has
not been followed by smaller Benches in subsequent cases, the Constitution Bench decision
should be followed when it is brought to light in the court. The ruling of smaller Benches in
cases like this shall be termed as per incuriam.

The precedential value of a decision like this has been explained by the court in State of M.P V.
Narmada Bachao Andolan

“the Court should not place reliance on decisions without discussing as to how the fact situation
of the case before it fits in with the fact situation of the decision on which reliance is placed
because one additional or different fact may make a world of difference between conclusions in
two cases”

The Supreme Court may likewise audit its prior decision if some patent parts of the case stayed
unseen, or if the consideration of the court was not attracted to any important and material legal
provisions, or if any past rulings of the court similar to the fact of the matter were not seen, or if
the decision was wrong.

Kinds of precedents
Authoritative precedents

Authoritative precedents are final and binding on all lower courts. The approval of the lower
courts is irrelevant. As indicated by Salmond, Authoritative Precedent is a source of law. It
builds up law in the acquirement of a definite rule of law which gives upon them that impact.

There are 2 types of Authoritative Precedents:

Absolute:

With respect to Absolutely authoritative Precedents, they Judges must abide by it regardless of
whether they support them or not. They are qualified for implied compliance.

Conditional

In the case of conditional authoritative Precedents, the Court can ignore them under particular
conditions. Generally, it is mandatory however under extraordinary state of affairs, it can be
dismissed.
Persuasive Precedents

A persuasive Precedent is one that the Judges though not under any obligation to follow, and
will take into consideration while making a decision. It acts as a guiding force and helps the
Judge to reach a conclusion. They don’t have any legal power or impact on themselves. The
Persuasive Precedents is used as a reference and it depends on the Judge solely whether to
follow them or not.

Original Precedents

Original Precedents makes the law. These precedents are for the most part created when no
previous reference is existing for a specific source of law. The adjudicators go to a relation when
they need to shape unique points of reference.

Declaratory Precedents
As per Salmond, a declaratory precedent is simply the utilization of an already prevailing law.
Similar to an original Precedent, a declaratory Precedent is a good source of law.

Conclusion
Precedents work like a beacon to all courts. Precedents bring conviction in law. It assists lower
court judges in applying the law accurately. A few times the judges may defend their decisions
with the assistance of the Precedents. While statutes made by the legislature set out the overall
standards to be applied in the settling of disputes, the final interpretation of those principles is
done by the courts. The principle of Precedents formulates on the rulings of courts, normally
binding on the subordinate courts in cases where the facts and issues are similar or
indistinguishable. Though the major advantage of precedents is that it is binding, which might
block the advancement of law which is vital with changes in the society the court needs to keep
the harmony between the need for conviction and progression and the wish for development and
improvement of the law.

Legislation and Codification

INTRODUCTION
The concept of legislation has been derived from the process of law making. Legis literally
means “law” and Latum means “making “. Therefore the word Legislation means lawmaking.
Thus, according to Salmond Legislation can be said as a process of making law by a competent
and appropriate authority. Austin has also defined Legislation as the making of law by sovereign
authority that every part of society must follow.The process of law making is considered to be a
strict concept as only one body is empowered with the work of making law and also the scope of
making any alterations is also negligible.

Legislation may be direct or indirect. Direct legislation is expressly declaring the making of law.
Indirect legislation is making of law in the course of some transaction, not directly but indirectly.
Therefore Enactment of Legislature in direct whereas making of rule of law is indirect
legislation.
TYPES OF LEGISLATION
Enactment of any legislation must be done keeping in mind the welfare of citizens and for a best
interest of citizens.

1. Supreme legislation – This legislation is adopted by the head of the State so that no other
authority of the state can control or keep a check on it. This type of powerful and incomparable
legislation is known a Supreme legislation. There is no reasonable restrictions on its capacity.
Our Indian Parliament has always been so great that even though there are various constitutional
changes, it isn’t subject to any administrative authority under the state. Therefore it can be said
that Supreme jurisdiction cannot be revoked, cancelled or constrained by any other authority of
the state.

2. Subordinate Legislation – This legislation is any legislation by authority other than Supreme
organ of the state. The Supreme authority lays down some powers under which this legislation
works. So this legislation’s reality, legitimacy and reasonability is owed to the Supreme expert
of the state. Unlike Supreme legislation, it can be cancelled anytime by the Supreme authority.
Therefore we can say that Subordinate Legislation is subject to Parliament control. It can further
be classified into 5 types :-

 Colonial Legislation – The nation which are under the control of some other state, have
no power to make laws. The laws made by colonies, trust regions, domains and so forth
are subject to Supreme legislation of the state. Therefore Colonial Legislation is said to
be considered as a Subordinate Legislation.
 Executive legislation – When the legislative powers are delegated by official to an
executive, it is called executive legislation. Depending on the Subordinate powers, the
executive legislation can only execute the law and carry on the organisation.
 Judicial legislation – This refers to powers delegated to Judicial system to make and
bring into effect their own laws by maintaining transparency in the judicial system. In
this there is no interference of any authority of the government in the judicial system of
the state.
 Municipal Legislation – Municipal bodies like Municipal corporations, Municipal
Boards and Zila Parishads are empowered to make bye-laws for matters concerning
neighborhood. The neighborhood bodies make bye-laws which only works inside
individual areas. Extensive powers are allowed to Panchayats.
 Autonomous Legislation – Autonomous law is made by the people empowered by
Supreme authority gathered for administering issues. This body is called self ruling body.
Example – railway, college, etc.

ADVANTAGES OF LEGISLATION AS A SOURCE OF

LAW
 Effectiveness – Legislation differentiates the elements of law overlooking between
Legislature and legal executive.
 Declaration – A declaration is given that even before authorization the principles of law
will be known.
 Abrogative power- Changes can be done in old law, the control of which isn’t
controlled by different sources.
 Unrivalled in form- It is preponderant in structure, brief, clear, effectively available and
easily understandable.

DEMERITS OF LEGISLATION AS A SOURCE OF LAW

It is impossible for any source of law to be completely correct with no loopholes. So following
are the demerits in case of legislation :-

 Unbending nature – Unlike precedent, the laws in legislation are not flexible and
adaptable.
 Excessive amount of importance to wordings- Legislation as a source of law lays
much importance to wordings. Thus, if any wording is faulty the law as a whole needs to
get effectively turned.

CONCLUSION
Legislation thus, can be regarded as a very eminent source of law. It is a codified law offered by
sovereign to the society at large. Nowadays it has become a need in this situation to consider
legislation as an authoritative source of law. Besides having some loopholes legislation is still
regarded as an essential source of law as the difficulties faced in this is comparatively less than
the other sources of law like custom, precedent, etc.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

UNIT- IV

Definition of Rights and Duties

Legal Right – These are the rights which are conferred by the law of the land to the people.

Salmond defines rights as “A right or an interest recognised and protected by a rule of right. It is
a right, respect for which is a duty and disregard of which is a wrong.” Rights are an
indispensible unit in a society. It is something which you do or abstain yourself from doing in
order to favour some other person’s right.

Legal Duty – It is termed as an obligation which arises out of some law. These are the
responsibilities which ask us to act according to law. Correlation of rights and duties has always
been a debatable topic. There are different theories propounded by different scholars.

Correlation between Rights and Duties

The two most important views regarding whether the rights and duties are correlated or not are
Salmond’s view and Austin’s view.

According to Salmond “no right can exist without any corresponding duty and vice versa.” He
believed that every duty which is being performed is in respect of a correlated right attached to
it.

On the Contrary what Austin has to say is that all the types of duties are not similar and they are
divided between relative and absolute duty. Relative duties are the one which have
corresponding rights whereas Absolute duties are the one which are independent and have no
rights correlated to them. For example, not to commit suicide, is one of your absolute duty, there
is no corresponding right here.

According to Austin there are a bunch of duties which fall under absolute duties. Such as duties
to self, duties to sovereign etc. These are certain duties which are to be followed and have no
corresponding relations with rights. But Austin’s view has been criticized a lot lately. Salmond
has concluded that duties towards self becomes part of criminal law and thus becomes legal duty
and duties to sovereign/state are always corresponding to the rights which are granted to us by
the states.

And The most accepted view regarding rights and duties over the time is that they are
necessarily correlative. They are the two most inevitable components existing together in present
day society.

 As we can describe a right as a power or privilege conferred by law which people enjoy and on
the other hand duty is a burden imposed by law which commands obligeance for the good of
society. And in order to enjoy a right properly there is a need for other people to consider and
respect it. Hence in this way we can say that enjoyment of right by one person grants duty on
another person to respect it. Thus they work in corollary. They act as two phases of a single
coin. For example if the state has guaranteed right to life, the
 Rights act as an interest and legal rights become legal interests and these legal interests are
backed by law and in this case a duty is imparted on law to protect these rights.
 The state guarantees certain rights to all of its individuals to promote welfare of the society and
protection of such rights is the state’s duty. Also when state is guaranteeing rights it becomes a
corresponding duty of the citizens to respect the state and do not create hindrance in the
functioning of state. It becomes an individual’s duty to serve the state in his whole capacity.

Correlation between Rights and Duties by Prof. Laski

Thus in different forms Rights and Duties are correlated. To define the correlativity, Professor
Laski has created a four fold connection between Rights and Duties.

My rights implies your duty

Individuals have their rights given to them and these rights involve corresponding duties from
others. For instance, if I have the right to life then every other individual is duty bound to protect
my life. Another example is that I have the right to live in a safe and clean environment and
every other person has a duty to respect that right of me.

My right imply my duty to admit a similar Right of others

The way others are duty bound to respect and protect my rights. I am also duty bound to do the
same for others because others also have the same rights.

Rights should be exercised to promote better good

The way of exercising my rights should be in a way that it does not violate the laws and
conventions of the society. Thus it becomes the duty of an individual towards the entire society.
For example my right to practice religion freely cannot be used by me to incite communal
hatred.

State has guaranteed us rights, so we have duty towards state too

The individuals are ultimately under the duty to protect and respect the interests of the state as
the state is the agency which has provided all the rights to the individuals.
Thus from the entire analysis that we have done in this article we can conclusively say that both
rights and duties always go hand in hand and it is impossible to exist in a society where they
cannot coexist. Thus, correlation of rights and duties is a very important for holistic and entire
development in any society.

What are fundamental rights?

Fundamental rights, often called “basic rights,” are essential for human beings to live with
dignity in a civilised society. They are also known as negative or individual rights because they
impose limitations on the State to prevent encroachment on individual liberty.

Fundamental rights are also known as Inherent rights because they are inherent to every person
by birth. These are the rights that provide an individual with some basic rights for survival. No
discrimination is made on the basis of religion, caste, race, etc., and if any person feels that his
fundamental rights are being infringed, they can seek legal recourse.

In the Indian Constitution, fundamental rights are outlined in Part III, from Article 12 to
Article 35. This chapter of the Constitution of India has very well been described as the Magna
Carta of India, which was the first written document relating to the fundamental rights of the
citizens. There were seven fundamental rights originally, but the Right to Property was repealed
after the Abolition of the Zamindari Act. The six remaining fundamental rights are as follows:

 Right to equality (Article 14-18)

 Right to Freedom (Article 19-22)
 Right against exploitation (Article 23-24)
 Right to Freedom of religion (Article 25-28)
 Cultural and educational rights (Article 29-30)
 Right to constitutional remedies (Article 32-35)

Right To Equality
Article 14 – Equality before the law.

Article 15 – Prohibition of discrimination on the grounds of religion, race, caste, sex, or place of
birth.

Article 16–Equality of opportunity in matters of public employment.

Article 17–Abolition of untouchability.

Article 18–Abolition of titles.

Equality before Law and Equal Protection Laws, and the prohibition of discrimination on certain
grounds such as religion, race, caste, sex, or place of birth gives equality of opportunity in
matters of public employment. Abolish the untouchability and prohibit its practice. Abolition of
all titles except military and academic.

Right to freedom
Article 20 – Protection in respect of conviction for offences.
Article 19 – protection of certain rights regarding Freedom of speech, etc.

Article 21 – Protection of life and personal liberty.

Article 21A – Right to education.

Article 22–Protection against arrest and detention in certain cases.

Protection of six rights regarding Freedom of speech and expression, assembly, association,
movement, residence, and profession. These six rights are protected against only state action and
not private individuals. These rights are not available to foreigners but available only to the
citizens. Grants protection against excessive and arbitrary punishment to an accused person. It is
available for both citizens and foreigners. The right to Freedom also states that no person shall
be underprivileged of his life or personal liberty except according to procedure established by
law. It also provides that the State shall provide free and compulsory education to all children of
the age of six to fourteen years. It grants protection to persons who are arrested or detained.

Right against exploitation

Article 23 – Prohibition of traffic in human beings and forced labour

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

It prohibits human trafficking, forced labour, and other similar forms of forced labour. It also
prohibits the employment of minor children below the age of 14 years in any mine, factory, or
other hazardous activities like construction work or railway.

Right to freedom of religion

Article 25–Freedom of conscience and free profession, practice, and propagation of religion.

Article 26 – Freedom to manage religious affairs.

Article 27 – Freedom as to payment of taxes for promotion of any particular religion.

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

educational institutions.

All persons are equally allowed Freedom of conscience and the right to freely practise,
propagate, and profess religion. Every religious section shall have the following rights:

1. Maintain and establish institutions for religious and charitable purposes

2. Manage its affairs in matters of religion

3. Acquire and own movable and immovable property

4. Administer such property in accordance with the law

It gives Freedom from Taxation for the Promotion of a Religion which means no person shall be
compelled to pay any taxes for the maintenance or promotion of any particular religious
denomination or section.

Cultural and educational rights

Article 29 – Protection of interests of minorities.

Article 30–Rights of minorities to establish and administer educational institutions.

Any section of the citizens in any part of India having a definite script, culture or language of its
own, shall have the right to conserve the same.No citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State funds on grounds
only of caste, language, religion or race. All minorities shall have the right to administer and
establish educational institutions of their choice.

Right to constitutional remedies

Article 32 – Remedies for enforcement of rights conferred by this part.

Article 33 – Power of Parliament to modify the rights conferred by this part in their application
to Forces, etc.

Article 34–Restriction on rights conferred by this part while martial law is in force in any area.

Article 35 – Legislation to give effect to the provisions of this part.

The Right to Constitutional Remedies is one of the fundamental rights guaranteed to the citizens
of India under Article 32 and Article 226 of the Indian Constitution. The 6th fundamental
right, the right to constitutional remedies, ensures that citizens have access to justice and can
seek redressal for the violation of their fundamental rights. It is also called the right to get
the Fundamental Rights protected is in itself a fundamental right. Article 32 empowers the
Parliament to authorise any other court to issue these writs, and Article 226 empowers all
the high courts of India to issue the writs. The courts have the authority to issue various types
of orders, including writs such as:

HABEAS CORPUS: it simply means to ‘Produce the Body’. This writ is issued to produce a
detained person before the court and ensure their Freedom if the detention is found to be illegal.

MANDAMUS: This means ‘We Command’. It is a writ that orders a public official or authority
to perform a specific duty that they are legally obligated to do but have not fulfilled.

PROHIBITION: it is basically known as ‘Stay Order’. It is issued by a higher court to prevent

a lower court or tribunal from exceeding its jurisdiction.

CERTIORARI:this means To Be Certified’. It is a writ that is issued by a higher court to

quash the decision of a lower court or tribunal if it is found to be beyond its jurisdiction or
against the principles of natural justice.

QUO WARRANTO: it signifies ‘By What Authority?’. This writ challenges the right or
authority of a person holding a public office to inquire into the legality of their appointment.

What Are Directive Principles of State Policy?

The Directive Principles of State Policy contained in Part IV of the Constitution set out the aims
and objectives to be taken up by the States in the governance of the country. And are also
regarded as positive rights since they place affirmative responsibilities on the State.

This novel feature of the Constitution is borrowed from Article 45 of the Constitution of Ireland,
which had copied it from the Spanish Constitution.
Articles 36-51 of the Indian Constitution encompass the Directive Principles of the State Policy.

Directive Principles of the State Policy imposes a duty upon the State not only to protect and
acknowledge the Fundamental rights of the individuals but also to achieve Socio-economic
goals. Certain guidelines are present for the state authority to work upon them for the protection
of society. It mostly focuses on welfare and improvement of society altogether. The Directive
principles lay down certain economic and social policies to be pursued by the various
governments in India; they impose certain obligations on the State to take positive action in
certain directions in order to promote the welfare of the people and achieve economic
democracy.

Directive Principles are not enforceable by the court of law if the Government is not abiding by
them, nor can the court declare void any law, which is otherwise valid on the ground, that it
contravenes any of the directives. But the Directive Principles can be enforced through certain
legislations. And In case of any violation of the DirectivePrinciples which is itself a violation of
the Fundamental Rights or of Constitutional goals, or in any case of conflict between the two,
then the court will act upon it in a harmonious construction.

Directive Principles

Article 38 – State to secure a social order for the promotion of the welfare of the people.

Article 39 – certain principles of policy to be followed by the State.

Article 39A – Equal justice and free legal aid.

Article 40– Organisation of village panchayats.

Article 41–Right to work, to education and to public assistance in certain cases.

Article 42 – provision for just and humane conditions of work and maternity relief.

Article 43 – Living wage, etc, for workers.

Article 43A – Participation of workers in management of industries.

Article 43B – Promotion of co-operative societies.

Article 44 – uniform civil code for the citizens.

Article 45 – Provision for early childhood care and education to children below the age of six
years.

Article 46 – Promotion of educational and economic interests of Scheduled Castes, Scheduled

Tribes and other weaker sections.

Article 47 – Duty of the State to raise the level of nutrition and the standard of living and to
improve public health.

Article 48 – organisation of agriculture and animal husbandry.

Article 48A – Protection and improvement of environment and safeguarding of forests and
wildlife.

Article 49–Protection of monuments and places of national importance.

Article 50–Separation of judiciary from executive.

Article 51 – Promotion of international peace and security.

Difference between Fundamental Rights and Directive

Principles of State Policy
Point of
Fundamental Rights Directive Principles of State Policy
Differentiation

Directive Principles are written in Part

Classification and Fundamental Rights are sometimes
4 of the Constitution of India. They are
Placement in the considered as a kind of restriction
given in Articles 36-51 of the
Constitution imposed on the State.
Constitution of India.

The basic rights that are guaranteed to Directive Principles of the Indian
Indian citizens by the Constitution of constitution are the guidelines to be
Purpose and Nature
India are known as Fundamental followed by the Government while
Rights. framing policies.

Political Democracy is established in

Role in Establishing Economic and Social Democracy is
India with the help of Fundamental
Different Types of established with the help of the
Rights given in the Constitution of
Democracy Directive Principles of State Policy.
India.

The welfare of each and every citizen is The welfare of the entire community is
Scope of Welfare promoted through the Fundamental fostered with the help of Directive
Rights. Principles.

Violation of Directive Principles is not a

As per the law, the violation of
Punishability punishable crime unlike violation of
Fundamental Rights is punishable.
Fundamental Rights.

Fundamental Rights are justiciable as Directive Principles are not justiciable

Enforceability they can be enforced legally by the as they cannot be enforced by the
courts if there is a violation. courts if there is a violation.

If there is a law which is in violation of If there is a law in violation of Directive

fundamental rights then the courts can Principles, then the courts do not have
Judicial Power
declare it as invalid and the power to declare it as invalid and
unconstitutional. unconstitutional.

Fundamental Rights are sometimes Directive Principles are directions for

Nature of Imposition considered as a kind of restrictions the Government in helping it to
imposed on the State. achieve some particular objectives.

Fundamental rights can be suspended

Directive Principles of State Policy can
Suspension during during a national emergency. But the
never be suspended under any
Emergency rights guaranteed under Articles 20
circumstances.
and 21 cannot be suspended.

Origin and Source Fundamental Rights were borrowed Directive Principles of State Policy were
borrowed from the Constitution of
from the Constitution of the United
Ireland, which was in turn copied from
States of America.
the Constitution of Spain.

Case Laws on the Relationship between Fundamental Rights

and DPSP
To better understand the conflict between Directive Principles of State Policy (DPSP) and
Fundamental Rights, let’s examine some important case laws that shed light on the matter. By
studying these cases, we can determine what happens when a conflict arises between DPSP and
Fundamental Rights.

In the case of the State of Madras Vs. Champakam Dorairajan[1], the Supreme Court ruled
that Directive Principles of the State Policy, which by Article 37 are expressly made
unenforceable by Courts cannot override the provisions of Part III of the Constitution,which
includes Fundamental Rights, are expressly made enforceable by appropriate writs, orders, or
directions under Article 32. The Directive Principles of State Policy have to conform and must
operate subsidiary to Fundamental Rights and should not contradict them. However, so long as
there is no infringement of any fundamental right to the extent conferred by the provisions in
Part III, there can be no objection for the State to act in accordance with the Directive Principles,
subject to other provisions of the Constitution.

In the State of Bihar vs. Kameshwar Singh[2], the Court relied on Article 39 in deciding that a
certain Zamindari Abolition Act had been passed for a public purpose within the meaning of
Article 31.

Finally, in Re Kerala Education Bill[3], the Supreme Court observed that though the Directive
Principles cannot override the Fundamental Rights, nevertheless, in determining the scope and
ambit of Fundamental Rights the court may not entirely ignore the Directive Principles but
should adopt “the principle of Harmonious Construction and should attempt to give effect to
both as much as possible”.

Now, what is the Doctrine of Harmonious Construction?

According to the Doctrine of Harmonious Construction, the Constitution’s provisions should be

interpreted and constituted to allow Fundamental Rights and DPSP to work in harmony,
avoiding conflicts between them. The court aims to construe each provision of the Constitution
so they can function together seamlessly.

The court held that no conflict will arise if there is no inherent conflict. However, suppose a
conflict arises due to the court’s interpretation of a particular law. In that case, the court should
make efforts to give effect to both Fundamental Rights and DPSP as much as possible.

The objective is to connect Fundamental Rights and DPSP without requiring any amendments. If
conflicts persist despite attempts to maintain balance, the court must prioritise the
implementation of Fundamental Rights over DPSP.

In the case of Ranjan Dwivedi vs. Union of India[4], it was held that the Courts have the
responsibility to interpret the provisions of the Constitution in such a way as to ensure the
implementation of the Directive Principles and to harmonise the social objectives underlying the
directives with the individual rights. This is the mandate of the Constitution not to the
Legislature and the Executive only, but to the Courts as well.

In Kesavananda Bharati vs. State of Kerala[5], the Supreme Court held that fundamental
Rights and Directive Principles aim at the same goal of bringing about a social revolution and
establishment of a Welfare State and they can be interpreted and applied together. They are
supplementary and complementary to each other. It can well be said that Directive Principles
prescribe the goal to be attained and the Fundamental Rights lay down the means by which the
goal is to be achieved.

In Unni Krishnan vs. State of Andhra Pradesh[6], the Supreme Court reiterated the same
principle that ‘the Fundamental Rights and Directive Principles are supplementary and
complementary to each other and the provisions in Part III should be interpreted having regard to
the preamble and Directive Principles of the State Policy’.

The Directive Principles are also relevant to consider what are reasonable restrictions under
Article 19. Article 19 permits the imposition of a reasonable restriction on the Fundamental
Right. A restriction which promotes any objective embodied in the Directive Principles is
usually considered reasonable by the courts of law.

In the State of Bombay vs. F.N. Balsara[7], the Supreme Court gave weight to Article 47 which
directs the State to bring about prohibition of consumption of intoxicating drinks except for
medical purposes – to support its decisions that the restriction imposed by the Bombay
Prohibition Act was a reasonable restriction on the right to engage in any profession or carry on
any trade. In Bijoy Cotton Mills vs. State of Ajmer[8], the Supreme Court upheld the
Constitutional validity of the Minimum Wages Act, 1948, because it was enacted to give effect
to Directive Principles of State Policy in Article 43 of the Constitution. It was held that the
fixation of the wages for labourers did not violate Freedom of trade under Article 19 (5). Thus, it
was considered as a reasonable restriction.

Minerva Mills vs. Union of India[9], the Supreme Court held that the law under Article 31(C)
would be protected only if it is enacted to implement the directive in Article 39(b) and (c) and
not for any other Directive Principle. Previously, protection was given to all Directive Principles,
but after this case, such protection was restricted. It was declared that protecting all Directive
Principles would render them void and unconstitutional.

Relationship Between Directive Principles of State Policy

and Fundamental Rights
The relationship between Fundamental Rights and Directive Principles of State Policy (DPSP)
can be described as follows:

Complementary Nature

Fundamental Rights and DPSP are considered complementary to each other. While Fundamental
Rights focus on individual rights and liberties, Directive Principles of State Policy emphasises
the goals and principles the State should strive to achieve in the social and economic spheres.
Both sets of provisions aim to secure a just and equitable society.

Non-Justiciability of DPSP

Unlike Fundamental Rights, which are justiciable and can be enforced in courts, Directive
Principles are non-justiciable. This means that individuals cannot directly approach courts for
their enforcement. However, Directive Principles provides guiding principles to the State in
formulating policies and legislation.
Harmony and Harmonious Construction

The courts have emphasised the need for harmony between Fundamental Rights and the
Directive Principles of State Policy. The Doctrine of Harmonious Construction guides the
interpretation of constitutional provisions in a way that avoids conflicts between the two sets of
rights and seeks to give effect to both as far as possible.

Subordination of DPSP

While Fundamental Rights enjoy higher legal protection, Directive Principles are considered
subordinate to Fundamental Rights. In a conflict between the two, the courts generally prioritise
the protection of Fundamental Rights.

State Obligation

Directive Principles of State Policy impose positive obligations on the State to promote social
justice, welfare and equitable distribution of resources. The State is expected to take steps to
implement Directive Principles over time, subject to its available resources and other
considerations.

Progressive Realisation

Directive Principles are principles and goals that are gradually realised over time. The State is
expected to make reasonable efforts to progressively fulfil these principles, considering its
financial capacity and socio-economic conditions.

Conclusion
The relationship between fundamental rights and directive principles of state policy is a crucial
aspect of constitutional law and governance in any democratic nation. These two concepts,
although distinct, are closely intertwined and complement each other in the overall objective of
achieving social justice and ensuring a just and equitable society.

Fundamental rights are individual rights that are guaranteed and protected by the Constitution.
These rights are considered essential for the dignity and well-being of every citizen and are
enforceable through legal remedies.

On the other hand, directive principles of state policy are a set of guidelines and principles that
aim to direct the State in formulating policies and laws that promote the welfare of the people
and establish a just society. While not legally enforceable, these principles are fundamental in
guiding the Government in its decision-making process.

The relationship between these two concepts lies in their shared objective of establishing a just
and equitable society. Both fundamental rights and directive principles of state policy aim to
protect and promote the well-being of individuals and ensure social justice. The fundamental
rights provide individuals with legal protections against any violation of their rights, while the
directive principles guide the State in formulating policies that work towards the larger goal of a
just society. Furthermore, fundamental rights and directive principles are interconnected and
interdependent in their application. The judiciary plays a crucial role in this relationship by
interpreting and safeguarding fundamental rights while also considering the directive principles.

In conclusion, the relationship between fundamental rights and directive principles of state
policy is key to establishing a just and equitable society. While fundamental rights protect and
ensure individual liberties, directive principles guide the State in promoting social welfare and
establishing social justice. Their interplay is essential in creating a harmonious and balanced
legal framework that upholds the principles of democracy and human rights.

Legal Status of Corporate Personality

INTRODUCTION
Corporate Personality has evolved as an important concept in the Jurisprudence of various
subjects and has laid the foundation of various Company Laws, Insolvency and Bankruptcy
Laws, Trade Union Rules and Partnership Laws. This is because an individual cannot do all the
work and it is the collective act of many that pushes and strives. These corporations deal with
other corporations and with individuals. To govern their relationship and even in some cases
conflicts, there are laws, but to what extent are these corporates and their actions legal pose a
question before us as they are not human beings and thus, do not get all those rights which a
person has.

Who is a person? In layman terms, a person means a human being having ability to think,
express and capable of holding rights and exercising liabilities. But is “person” restricted only to
natural persons? The answer is negative. The definition of person extends beyond a natural
person, including even an artificial person in its purview. As Salmond defines a person as, “Any
being to whom the law regards capable of rights and duties, any being that is so capable, is a
person whether human being or not and nothing that is not so capable is a person even though he
be a man.” Thus, non-natural entities like temples, universities, public authorities and
companies all are persons under law and slaves and sanyasis are not. Even the Indian Penal Code
under Section 21 defines the word ‘person’ as including any company or association or body of
persons, whether incorporated or not. [2]

CORPORATION SOLE AND CORPORATION

AGGREGATE
Like the Roman and British laws, the Indian law also recognizes the concept of Corporate
Personality as Corporate Aggregate and Corporation Sole and their respective rights, duties,
liabilities, immunities and privileges as the case maybe. Corporation Aggregate talks about many
people coming under one unit to promote and achieve their common interest. Therefore, all the
bodies or the organizations that are incorporated under the statute of parliament and state
legislatures and even those not incorporated are all corporate personalities like Reserve Bank of
India, Roadways Corporations, Co-operative Societies, Trade Unions etc. On the other hand,
Corporation Sole is an incorporated series of successive persons. It is a creation of law which
continues to exist even when the human changes. Like President, Prime Minister, Post-Master
General etc. Thus, a single human exercise rights of two nature, i.e. rights as a human being and
that of Corporation Sole.

Corporation Personality continues to exist even if the human beings change. This is the reason
why we have had 14 different persons for the same post of President and Bombay Dyeing
continues to be in operation since 1879 and Colgate since 1806. Thus, it is formed by law and
ended by law only.

LEGALITY OF CORPORATE PERSONALITY

With the laws made for recognition of these juristic persons does it prove that they have absolute
rights on the same length as the human beings have in a country. Even individuals in India don’t
have absolute rights but have rights with reasonable restrictions. So, what about the extent of
legality of corporate personality in India?

There is legality in practice, they have a name, right to buy or sell property in their own name,
right to sue or can be sued, right to enter into a contract etc.[3] All these acts are undertaken by
the people of the corporation, but not in their individual capacity but in the name of that
corporation and for its benefit. Thus, as held in Saloman v. Saloman Co. that with the
incorporation, the entity of the company becomes institutionalized. This principle of the
independent corporate existence and the principle of corporate personality of a company was
recognized. A corporate body has its own personality distinguished from its members.[4] The
legality is also confirmed by the “Limited Liability Principle”. The members are liable only to
the extent to which they hold their shares. If a company incurs loss, it is from the company’s
assets only that the losses will be recovered. There are circumstances where the company winds
up but the director or the owner of the company is wealthy.

It is a privilege for members of a corporation. But when individual interests start overpowering
the interest of the corporation then there are repercussions, and this is explained by the concept
of lifting of veil. That means, in the end any corporation is run by a natural person and when that
natural person starts making decisions fraudulently, dishonestly or for his own benefit, then the
claim of his that all the acts were done for corporation’s benefit are overlooked, and the person
in individual capacity is held liable. The principle of ‘Lifting the Corporate Veil’ has found
statutory recognition in certain provisions like Sections 45, 147, 212, 247 and 542 of the
Companies Act. Corporate veil is said to be lifted when the court ignores the company and
concerns itself directly with the members or managers. Thus, in circumstances where to know
the real nature of company, to prevent abuse of process of law, to punish the person in quasi-
criminal cases against the company, in matters of fraud or even for tax evasion.

In P.N.B. Finance Ltd. v. Shital Prasad Jain, the court held that “the doctrine of piercing the
corporate veil may be invoked whenever necessary by the court in the interest of justice, to
prevent the corporate entity from being used as an instrument of fraud, and the fundamental
principle of corporate personality itself may be disregarded having regard to the exigencies of
the situation and for the ends of justice.[5] The corporations are made liable when they fail to
fulfill their obligations. Thus, contractual liability. Even in criminal cases, liability arises but is
restricted till fines. Lastly, under tortious liability the company is made vicariously liable for the
acts done by its employees during the course of employment.

There are various theories that are pen down by the jurists on the same subject. These include
Fiction Theory of Savigny, Salmond and Dicey which state corporations have a fictitious
personality. Realist Theory propounded by Gierke talks about corporations not being fiction but
real in all senses. Whereas Bracket Theory of Jhering states that it is just a bracket that is put on
the group of individuals to act as a single unit for convenience purposes. Concession Theory
being on a similar footing as to Fiction Theory believes that these Corporations are a concession
on the part of state. Thus, it is with concession that these personalities are created, existed or
recognized. There are other theories too, all having some merits and demerits. But it is on the
basis of these theories that have helped in shaping the law and related jurisprudence till the
present time. The concept as it was in the 19th century is totally different from what exists this
year. It is judicial interpretation, justice, reason, equity and conscience along with the legislature
that have played a major role and given the legal status to same.

CORPORATES AS CITIZENS
Having a legal identity and having a citizenship are two entirely different concepts. It is only the
natural citizens that are given citizenship under the Indian Citizenship Act and not to the juristic
persons. In Tata Engineering Company v. State of Bihar, it was held that since the legal
personality of a company is altogether different from that of its members and shareholders,
therefore, it cannot claim protection of fundamental rights although all its members are Indian
citizens.[6] Supreme Court in State Trading Corporation of India v. Commercial Tax Officer
held that companies cannot claim protection of such fundamental rights as are expressly
guaranteed to citizens, but it can certainly claim the protection of such fundamental rights as are
guaranteed to all persons whether citizens or not. [7]

Though a company is not a citizen, it does have a nationality, domicile and residence. In case of
residence of a company, it has been held that for the purposes of income tax law, a company
resides where its real business is carried on and the real business of a company shall be deemed
to be carried on where its Central management and control is actually located.[8]

CONCLUSION
Thus, juristic persons play a chief role in every aspect. Any practice devoiding them of their
existence or causing hindrance in the practice of its acts to promote their objectives has a right to
sue them because corporate personalities have legal status. This status is given, recognized as
well as promoted by the State as of separate nature than of its members.

Movable and Immovable Property

Property incorporates all rights of a person except his personal rights which constitutes his
status in the society. The property can classify into movable and immovable properties. Transfer
of Property Act deals with it.

Property: Movable and Immovable Property

Property has a wide degree and, along these lines, no thorough definition. The court completely
expressed in Raichand v. Dattarya [1] that property incorporates all rights of a person except his
personal rights, which determine his status in society.

Property’s significance is not static; it changes with the reason, idea of an act, and new laws.
Along these lines, as to guarantee that different choices, proposals, and any suggestions
identified with property are appropriately made, first the property is classified into movable and
immovable properties, and afterward, as per their separate laws, the related activity is attempted.

The question now is, “What is the difference between movable and immovable property?”

Definition of Movable Property

Section 3 (36) of the General Clauses Act defines movable property as:

‘Movable property shall mean property of every description, except immovable property.” [2]

Section 2 (9) of the Registration Act, 1908 defines property as:

‘Moveable property’ includes standing timber, growing crops and grass, fruit upon and juice in
trees, and property of every other description, except immovable property.” [3]
In this manner, crops remain in the field and incorporate all the vegetables and natural products.
They are considered as movable property since they must be utilized once they are served from
the land. Additionally, the grass is by and large nourishment for dairy cattle, and consequently it
is likewise considered as movable property.

Also, Timber is helpful for development of houses, yet for that, it must be cut and served from
the land and afterward no one but it very well may be utilized, that is the reason it is considered
as movable property. Then again, trees bearing natural products are helpful when they are
established in the earth, and that is the reason they are viewed as immovable property.

Section 22 of IPC defines property as:

The words “moveable property” is intended to include corporeal property of every description,
except land and things attached to the earth or permanently fastened to anything, which is
attached to the earth. But things attached to the land may become moveable property by
severance from the earth. [4]

Transfer of Property Act does not define movable property, since it regulates transfer of
immovable property by sale, mortgage, lease, gifts or through actionable claims.

Definition of Immovable Property

Section 3 of Transfer of Property Act defines “Immovable Property” does not include standing
timber, growing crops or grass.[5]Moving property includes standing timber, growing crops, and
grass, according to this definition.

Section 3(26) of the General Clauses Act 1897, “immovable property” “shall include land,
benefits to arise out of land and things attached to the earth, or permanently fastened to anything
attached to the earth”. [6]

Section 2(6) of The Registration Act,1908 defines “Immovable Property” as under:

“Immovable Property includes land, building, hereditary allowances, rights to ways, lights,
ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or
permanently fastened to anything which is attached to the earth but not standing timber, growing
crops nor grass”. [7]

Joining all the 3 definitions, immovable property can be summed as :-

i. Land

ii. Advantages emerging out of the land

iii. Things connected to the earth

iv. Things Embedded in earth

v. Things attached to what is embedded in the earth

vi. Things established in the earth, with the exception of:-

a. Standing timber,

b. Developing harvest

c. Grass.
Following on from the preceding points, it is commonly assumed that things found on the earth,
as well as deep within the earth, such as minerals, are also immovable in nature.

Important Case Laws dealing with Movable and Immovable

Property
Since, the definitions of with movable and immovable property are not exact and have room for
interpretation, thus various issues have arisen in past years regarding the kind of property. Profit
prying is the right to take something from someone else’s territory.

It is right to enter another person’s property and to make some benefit from the soil. There are
different points of reference that have been set by the court in acknowledging this concept. Some
landmark cases that have been decided are :-

The court held in Smt. Shantabai v. State of Bombay [8] that the right to enter the land, cut and
carry away wood for a period of 12 years is a benefit arising from land and thus immovable
property.

For the situation in Anand Bahera v. Province of Orissa [9], it was held that profit arising from
land is movable property. The option to stroll on the land and to draw fish from the lake and
remove them is immovable property, as it is the benefit emerging from the land. Grazing of
cattle on the land is additionally immovable property as it is profit emerging from the land.

Idea of Annexation turns into an establishment for choosing an issue in cases including question
of characterizing the property, If property lies on the land on its own weight, it is movable;
however, if a thing cannot be expelled without causing significant harm to the land, it is viewed
as having been implanted in interminability and must be treated as immovable property. The
level of annexation is known by the intention and the timeframe for its use.

As an example, while staying on a boat is movable property, the use of any nails and jolts is
immovable property because they will most likely be used for a long time and will cause damage
if severed.

The above-mentioned concept is further elaborated in the case of Bamdev v. Manorma [10]
where it was held that the pieces of equipment are movable property and they simply don’t
become immovable just because they are embedded in the earth. They are embedded in the gear
for their enjoyment rather than the land. The cinema built is a temporary cinema, and the
supplies and other supporting equipment will be fixed only until the mortgage exists.

In Duncans Industries Ltd. v. State of UP [11] , light was thrown on the intention of fixing
equipment. It stated that a property is movable, or immovable based on the intention of the
owner, whether they wanted to have the equipment permanently or temporarily. In this case,
Company A decided to sell its fertilizers business to Company B. It included land and apparatus.
The hardware that is installed in the earth is implanted there for long-term use. It is beyond the
realm of imagination to expect to expel them without causing extreme harm to the land.
Subsequently, it ought to be considered as unflinching property.

Following various judicial pronouncements, some of the judicially recognized immovable

properties include :- Right to collect rent for immovable property, hereditary office, , right to
ferry, right of fishery, equity of redemption, factory, building, walls, interest of mortgage in
immovable property etc.

Judicially recognized movable properties include :- Government promissory notes, royalty, right
of warship, decree of sale of a mortgaged property, standing timber, grass, growing crops etc.
Apart from the above-mentioned items, with time and development and changing perspectives
on the bar and the bench, various items are included and excluded as needs be from the rundown
of versatile and steadfast things.

In the end, according to the need, circumstances, and purpose of the item, it is classified, and
using the statute, an action is taken. However, to venture out characterization of movable and
immovable property, the idea becomes one of extreme importance because, in the current times,
it is only property, whether personal or proprietary, tangible or intangible, movable or
immovable, that defines a person and his status.

End notes

[1] AIR 1964 Bom 344.

[2] Section 3 (36) , General Clauses Act, 1897.
[3] Section 2 (9) , Registration Act, 1908.
[4] Section 22 , Indian Penal Code, 1860.
[5] Section 3 , Transfer of Property Act, 1882.
[6] Section 3(26) , General Clauses Act,1897.
[7] Section 2(6) , Registration Act,1908.
[8] AIR 1958 SC 532.
[9] 1955 SCR (2) 919.
[10] AIR 1974 AP 226.
[11] (2000) 1 SCC 633.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

UNIT-V

Concept of Possession of Property in India

Meaning of Possession of Property

The dictionary meaning of the term ‘Possession’ implies that one has physical control over an
object or thing. Generally, it expresses the closest and immediate relation of the fact that can
exist between a thing and the person possessing it. However, in the legal terms, possession is not
only limited to physical control rather extends to include an intention to exercise that physical
control. For possession to exist, there must be an exclusion of other individuals from its
enjoyment. [1]

Nature and Concept of Possession of Property

Possession is prime evidence of transferring ownership. The term ‘possession’ is ordinarily used
in both civil law and criminal law. In fact, both laws are based on the concept of possession, for
instance, under civil laws, possession is used in the form of trespassing in the law of torts,
possession of goods in contract laws and in the transfer of property in property law. Whereas, in
criminal laws, theft is the most common example of possession as it implies dishonestly taking
away any movable property out of the possession of any person without that person’s consent.
Elements of Possession: Corpus Possidendi and Animus Possidendi are two elements of
possession which have been recognized in English, Roman and Indian laws.

1) Corpus Possidendi: Physical control over the possessed object

2) Animus Possidendi: Intention or will to exercise the power.[2]

Theories of Possession of Property

In the words of Sir Fredrick Pollock, Possession is expressed as “In common speech a man is
said to possess or to be in possession of anything of which he has the apparent control or form
the use of which he has the apparent power of excluding others”.

John Salmond stated possession as “Possession is the continuing exercise of a claim to the
exclusive use of an object.” He totally rejected the two concepts of possession, i.e. possession in
fact and possession in law and reiterated one as ‘possession in truth and in fact’. Hence for
Salmond, possession is both corpus as well as animus.

Savigny’s theory was the first theory on the concept named possession. According to him, there
are two elements in possession that are corpus possessionis and animus domini, where the
former implies effective control and latter means the pure intention to hold as the owner. He
further classifies corpus possessionis into two parts, one being the initiation of possession and
the other is retention of possession. In the words of Savigny, “I must take him by bridal or ride
upon him or have him in my immediate presence, so that I can prevent all others from interfering
with me. And since detentor and possessor have same physical relation to the res, the difference
between them must be found in the mental element, i.e. animus domini. He clearly focuses
physical control and intention for the possession to constitute.

Holme’s theory: In the words of Holmes, “To gain possession, then a man must stand in a
certain physical relation to the object and to the rest of the world, and must have a certain intent.
These relations and this intent are the facts of which who are in search.” He further suggested
that the element namely, ‘animus domini’ is not required under the English law, and has the
intent to exclude others. [3]

Possession in Law and Possession in Fact

Possession in fact refers to physical or actual possession. It basically means a physical relation to
a thing and one has actual control of it. For the actual control to exist, there must be a relation of
the possessor with another person and simultaneously relation of the person to the thing so
possessed. Possession in fact is also known as De facto possession and in roman language, it is
read as naturalis possession.

One has to keep in mind the fact that there are certain things on which physical control is
impossible like sun, stars, moon, etc. Also, it is not necessary that the physical control over a
thing will be continuous which means even when an individual loses its actual control, the
physical control will not be put to an end.

Possession in law implies the possession in the eye of law. Possession in law is recognized and
at the same protected by law. Possession in law is also known as De Jure possession and in
roman language, it is read as possession civilic. The law mainly protects for two major reasons
that are by conferring legal rights on the possessor and by punishing the individuals interfering
the possession. Three causes between possession in fact and possession in law are as follows:

1. Possession in fact and Possession in law

2. Possession in fact but not in law
3. Possession in law but not in fact

Kinds of Possession of Property

1) Corporeal Possession: Those things/objects that constitute physical or material existence and
have a direct relationship with that thing, are referred to as incorporeal possession. For eg. Pen,
car, house, book etc.

2) Incorporeal Possession: Those things/objects that does not constitute any physical or
material existence and cannot be felt by senses are referred to as incorporeal possession. For eg,
Patent, Goodwill, Trademark etc.

3) De facto Possession: It is also known as Possession in fact. Such possession exists whenever
an individual is in immediate possession of the object/thing and in the exclusion of others. This
possession is not lawfully recognized but it exists in reality.

4) De jure Possession: It is also known as Possession in law or Juridical Possession. Such

possession exists whenever an individual claims the object/thing to be his own through the legal
way by occupying it without having any argument as to his legal right of possessing that thing.
This possession is lawfully recognized irrespective of the fact of whether it exists in reality or
not.

5) Mediate Possession:It is also called Indirect Possession. Mediate Possession is one where the
property/thing is possessed through a mediator which can be either friend, servant or any agent.
In this case, there is a lesser degree of physical control with the possessor as the possession over
object/ thing is with another person.

6) Immediate Possession:It is also called Direct Possession. Immediate Possession is one where
the property/thing is possessed by the possessor himself. In this case, there is a higher degree of
physical control with the possessor as the possession over object/ thing is with the same person.

7) Constructive Possession: Wright and Pollock defined Constructive Possession as the one
which arises only by construction of law. It is not possession in fact but it certainly is possession
in law.

8) Adverse Possession: It refers to holding of the land/immovable property of any other party
on his own behalf. When Adverse Possession continues without any hindrance or obstruction for
a certain period of time, the person holding the property can claim for it thereby subsequently
extinguishing the true owners’ rights. [4]

Ownership in Jurisprudence: Meaning, Kinds, Incidents

and Relevance in Contemporary Times

Introduction
The word ownership strikes the imagination with the picture of property, property without which
there can be no ownership or possession. During the earliest of times when humans were nomads
and did not posses the skill of cultivation and civilization the concept of ownership never
crossed through the minds. However, the concept of possession was formulated before the
concept of ownership and that too only when humans started to cultivate.
Property as a legal concept has been defined by the Supreme Court of India in Guru Dutt Sharma
v/s State of Bihar, as ‘a sum of a bundle of rights and in case of tangible property would include
the right to possession, the right to enjoy, the right to destroy, the right to retain, the right to
alienate and so on.’ And along the clear concept of property comes the ideas of possession and
ownership.

Concept of Ownership
With the growth of civilization, humans settling down to cultivate and produce their own food
and staying at one place they began to develop the idea of ownership and recognized the terms
‘mine and thine’[1]. First came the concept of possession then the concept of ownership evolved.
The Roman Law had two distinct terms ‘possessio’, which denotes physical control over a thing
and ‘dominium’ which denotes the absolute right to a thing. Ownership as an absolute right in
English Law evolved through the developments in the law of possession, according to
Holdsworth and the term ‘ownership’ was first used in English Law in 1583.

Definition
Ownership has been defined by many jurists, some opine it is the relation between a person and
a right vested in him and some opine that it is the relation between a person and the thing that is
the object of the ownership.

Austin

According to him, ‘Ownership means a right which avails against everyone who is subject to the
law conferring the right to put thing to user of indefinite nature’. And ‘a right indefinite in point
of user, unrestricted in point of disposition and unlimited in point of duration’ when it comes to
full ownership.

Austin’s definition of ownership has three characteristics: –

1. Indefinite in point of user- it means that the owner may use the property howsoever he may
desire so. For example, if a person owns a piece of land, he may build a house on it, use it as a
garden or may simply leave it as it is. But at the same time, he must not use it to injure his
neighbors.
2. Unrestricted in point of disposition- the owner has a right of transfer or disposition without any
restriction. However legal systems impose certain restrictions on some transfer or disposition.
3. Unlimited in point of duration – the owner has the right of ownership till the object is in
existence and as soon as the thing is destructed the right is extinguished.

Salmond

According to him, ‘Ownership, in its most comprehensive significance, denotes the relation
between a person and the right that is vested in him. That which a man owns is in all cases a
right.’ Also he states that ‘Every right is owned, and nothing can be owned except a right. Every
man is the owner of the rights which are his.’

He also distinguished between corporeal and incorporeal ownership, ‘Although the subject-
matter of ownership in its widest sense is in all cases a right, there is a narrow sense of the term
in which we speak of the ownership of material things. We speak of owning, acquiring or
transferring, not rights in land or chattels, but the commonest meaning of the ‘ownership’. We
call it by the name of corporeal ownership to distinguish it from the ownership of rights which
may be called ‘incorporeal ownership’.

Holland
He followed Austin’s view of ownership and according to him an owner has three kinds of
powers namely; possession, enjoyment and ownership all or some of which can be lost by lease
or mortgage.

Hilbert

According to him, ownership consists of four rights which are the right of using the thing, right
of excluding others from using it, right to disposal of the thing and right of destruction of the
thing. In this regard absolute ownership in land is not possible since land is indestructible, which
is why in English Law one can have a legal interest in land.

Pollock

According to him, ’Ownership may be described as the entirety of the powers of use and
disposal allowed by law.’

Nature and Incidents of Ownership

On analyzing the concept of ownership one can find certain attributes which reveal the nature or
characteristics of ownership such as usage, enjoyment, disposition etc. Nature of ownership is as
follows: –

1. It is indefinite in point of user i.e., the user may use the thing owned in any way he so desires
and is in no obligation to not to use it. The user is at liberty to use it.
2. It is unrestricted at point of disposition. The owner may transfer or dispose of the property by
conveyance either during his lifetime or even after his demise by way of will.
3. The owner has the right to possess the thing owned although if he actually possesses it or not is
immaterial, only the right o possess is of material in nature.
4. The owner has the right to exhaust the thing owned while using it if the nature of the thing is
so.
5. It is residuary in nature. Even if some rights to a certain property may be given to someone else
in way of lease or rent, still the owner remains to be the owner due to the residuary
characteristics to it.
6. The owner has the right to alienate the property as well as the right to destroy it.

Incidents of ownership
1. Right to possess – ownership entails the right to possess the thing owned even if there is no
actual possession of it, only the right is of the essence.
2. Right to use – ownership implies that the owner can use or enjoy the thing owned in any
manner he thinks fit without injuring others and within the limits of the law.
3. Right to manage – ownership contains within it the right to manage the property. It means that
only the owner can decide what to do with it, how to do and by whom it is to be done, to
transfer or to alienate or to destroy.
4. Right to income – ownership also entails the income generated out of it is owned by the owner.
All benefits attached to the thing owned is the right of owner.

Modes of Acquisition of Ownership

There are two modes of acquisition of ownership and they are original and derivative. Original
mode when things which had not been owned before and can be acquired by possession. The
things owned before ownership over that thing is by derivative mode.

Original mode is of three types absolute, extinctive and accession. Absolute in case where it
previously belonged to no one. It can be acquired by either specification or occupation. In
occupation an ownerless thing is owned and in this the physical control is essential. For
example, birds, fish etc. In specification the material belonging to other when the shape given by
another. For example, clay collected from someone’s land is made into a sculpture by another.
Extinctive when the ownership of previous person is done with by reason of adverse possession
by the acquirer. Accessary when acquired as an accession.

Kinds of Ownership
Corporeal and Incorporeal Ownership –

Corporeal ownership is the ownership of material object. It is the ownership of tangible things
which can be perceived by the senses. For example, ownership of house, factory, machines, etc.

Incorporeal ownership is the ownership of a right. It is the ownership of intangible things which
cannot be perceived by the senses. It also includes intellectual property and encumbrances. For
example, ownership of shares, trademark, copyright, etc.

Trust and Beneficial Ownership –

Both ownerships are found in a trust involving a trust property. In the trust one is made a trustee
and given property to hold and use such property for the benefits of the beneficiary.

The ownership of the trustee is trust ownership. This is a nominal ownership and is not real as it
is only for the benefit of the beneficiary. In the eyes of law, the trustee is the representative of
the beneficiary and has no right of enjoyment of the trust property. This ownership is only a
matter of form and not of substance as the property is given fictitiously by the law and is only
deemed to be the owner of the property due to the fiction of the law.

The ownership of the beneficiary is the beneficial ownership. Although in the eyes of law trustee
is the owner but between the trustee and beneficiary the latter is the owner of the trust property.

For example, a property is given to A on trust for B then A is trustee and B is beneficiary. A has
trust ownership, the legal owner in the eyes of law who is obligated to use the trust property for
the benefit of B who has beneficial ownership.

Legal and Equitable Ownership –

Legal ownership has its origin in the rules of common law. This is a right in rem as it can be
enforced against the whole world.

Equitable ownership has its origin in the laws of equity. This ownership is a right in personam as
it can be enforced against a particular person. This ownership is recognized even when there is a
legal defect.

For example, A sells his shares to B but a transfer deed is not made. The company refuses to
acknowledge B as the owner and law gives no relief. Rule of equity helps here as A is the legal
owner but he holds the shares as a trustee of B. B here is the equitable owner.

Vested and Contingent Ownership –

Vested ownership means where the title of the owner is already perfect. In this the ownership is
absolute. For example, in a gift deed a donee (to whom the gift is gifted) cannot take possession
of the gift property but he has vested interest till the death of the donor and his wife. The donee
can although transfer the said property after the death of the donor.
Contingent ownership implies that the ownership is not absolute but conditional. The ownership
is imperfect and becomes absolute and perfect only on fulfillment of some condition. For
example, A leaves his property to B and on B’s death to C. The ownership of C is contingent
ownership as he will get the property only after the death of B.

Sole Ownership and Co-ownership –

Sole ownership is when only one person has the whole and sole right in a property and no one
else can claim any right whatsoever over the property in question.

Co-ownership is when more than one person has a right that is the undivided and vested in all of
them at the same time. The parties do not separately own a part but co-owners of the same
property.

Co-ownership and Joint Ownership –

Co-ownership the property in question is commonly owned by both the parties and on demise of
one party the heirs of that party would inherit part of it. For example, A and B are in a co-
ownership. On death of A, A’s heirs will get half of the property.

Joint ownership is when a property is jointly owned by parties and on the death of one party the
ownership dies with him and cannot be inherited. For example, A and B are joint owners of a
property. On death of A, B becomes the sole owner of the said property.

Absolute and Limited Ownership –

Absolute ownership means that except the owner in whom all the rights are vested there are no
other person who can claim any right over that property. But there may be legal or contractual
restrictions upon the usage of the said property.

Limited ownership means in the ownership there are limitations on the rights of usage, duration
or disposal of the property. For example, before 1956 a Hindu woman had only limited
ownership over a property and after her demise the property would be inherited by the heirs of
the last holder.

Role of Ownership in Modern Times

Ownership as a concept has evolved since long and has developed as a sign of power, wealth and
social standing. Individual ownership is a more recent idea and ownership within the community
was a concept during the initial stages of society formation. In his book Physics and Politics, Mr.
Bagehot had brought out that in order to bind the society in its forming stages ‘everything which
tended to individualism would naturally be discouraged by the tribal feeling of self-
preservation.’[2]

Ownership was only for the monarchs and in some instances for the church, apart from them no
one had any right over any property. Concept of private property came into existence only after
feudalism was done with and dissolved and the military heads had absolute power over his
domain which gave way to modern private ownership. Feudal lords held land and other
properties and labours were the ones who although worked on the said land but had no rights in
it whatsoever.

Later with the advent of machines and the industrial revolution came in the rights of the labours
and they now had equal rights to negotiate with the owners of the property. In this era the owner
was not the only one with power, wealth or social standing. New legislations in industries and
labour sector forced the industrialists to share their profits with not only the labour force but also
to be paid as taxes and in more recent time as corporate social responsibility.

In the current times ownership is neither absolutely with the government nor is the power the
ownership provides with the industries. The labour and industrial laws enacted has impacted the
social and economic conditions of the nation as a whole. Ownership now distributes power,
wealth and status among all.

Conclusion
Ownership in its nature is residual and can be said to have a bundle of rights attached to it, but at
the same time it also denotes the relation between a person and the thing to be owned. That
throughout the years the concept of ownership and possession has evolved and has been
embedded in the minds of human that may or may not be in a legal sense. It has impacted society
and even society has impacted its definition, meaning, scope and understanding. Ownership may
mean different things to different people but what does not change is the fact that along with the
rights attached comes liability, obligations, duties toward others and society in general.

LAW AND SOCIAL CHANGE

Law and society are closely interconnected and play a crucial role in shaping each other. In a
diverse and complex country like India, the relationship between law and society is multifaceted,
with legal systems reflecting and influencing social dynamics.

The legal framework in India, comprising legislation, judicial decisions, and legal institutions,
interacts with the social, cultural, and political context of the country, shaping behaviour,
maintaining social order, and promoting justice.

Historical Evolution of Law and Society in India

India has a rich history of legal systems, with diverse and complex legal traditions that have
evolved over time. From ancient times, Indian society has been governed by various legal codes,
such as the Manusmriti, Arthashastra, and Dharmashastras, which provided guidance on social,
economic, and ethical matters. These codes reflected the social norms, values, and customs
prevalent in different regions of India and were based on religious, philosophical, and moral
principles.

With the advent of foreign rulers in India, including British colonial rule, the legal landscape
underwent significant changes. The British introduced their legal system, based on English
common law, which coexisted with the existing traditional legal systems. The British legal
system had a profound impact on Indian society, shaping its social, economic, and political
fabric. The introduction of codified laws, such as the Indian Penal Code (IPC) and the Code of
Criminal Procedure (CrPC), brought a uniform legal framework across the country, but also
raised issues of cultural and social relevance.

After gaining independence in 1947, India adopted a democratic constitution that provided for a
comprehensive legal framework, comprising fundamental rights, directive principles of state
policy, and a system of governance based on the rule of law. The Indian legal system is a blend
of common law principles, statutory laws, and customary laws, reflecting the diverse and
dynamic nature of Indian society.
The Role of Law in Shaping Social Behavior
Laws as Standards of Conduct

Laws in India serve as standards of conduct that regulate behaviour in society. They provide
guidelines and rules for individuals and organizations to follow, setting the parameters for
acceptable behaviour and outlining the consequences for non-compliance.

For instance, provisions in the IPC, such as Section 302 (punishment for murder) and Section
376 (punishment for rape), establish legal norms for individual conduct, setting the standards for
social behaviour and maintaining social order.

Laws as Tools for Social Change

Laws in India also reflect and influence social change. Legal systems can be used as a means for
promoting social progress and addressing societal challenges. For instance, in recent years, there
have been significant legal reforms in India to address issues such as gender equality, LGBTQ+
rights, and environmental protection.

The decriminalization of homosexuality by the Supreme Court of India in Navtej Singh Johar v.
Union of India (2018) was a landmark judgment that reflected the evolving social norms and
values in India, and how the law can be a tool for social change.

Laws as Mechanisms for Social Justice

Laws in India play a crucial role in promoting social justice. The Indian Constitution provides
for fundamental rights, such as the right to equality, the right to freedom of speech and
expression, and the right to life and liberty, which are aimed at ensuring social justice and
protecting the rights of individuals.

The judiciary, through its role as the guardian of the Constitution, interprets and enforces these
rights, and ensures that justice is delivered to all citizens.

Case laws such as Kesavananda Bharati v. State of Kerala (1973), which established the
doctrine of the basic structure of the Constitution, and Vishaka v. State of Rajasthan (1997),
which laid down guidelines for preventing sexual harassment at the workplace, have been
instrumental in promoting social justice and upholding the rights of marginalized sections of
society.

The Influence of Society on Law

Societal Norms and Values

Law in India is deeply influenced by the norms and values of society. Social customs, cultural
practices, and religious beliefs often shape legal systems and influence the interpretation and
application of laws. For instance, personal laws in India, such as the Hindu Marriage Act, the
Muslim Personal Law, and the Christian Marriage Act, are influenced by religious customs and
practices, which reflect the societal norms and values of different communities.

Social Change and Legal Reform

The society also plays a significant role in driving legal reforms. Changing social dynamics,
evolving attitudes, and aspirations of the people often lead to demands for legal reforms.
For instance, the women’s movement in India has been instrumental in advocating for legal
reforms to protect the rights and interests of women, resulting in landmark legislation such as the
Protection of Women from Domestic Violence Act (2005) and the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act (2013). These reforms are a
reflection of the changing societal norms and values, and the law responds to these changes.

Social Movements and Judicial Activism

Social movements in India have often influenced legal systems and shaped legal outcomes.
Public interest litigation (PIL), a form of judicial activism, has been used as a tool by social
activists and organizations to bring about social change and address issues such as
environmental protection, human rights, and access to justice.

For instance, the Supreme Court of India’s intervention in the case of MC Mehta v. Union of
India (1986), which led to the closure of polluting industries in Delhi, was a result of judicial
activism and societal pressure to protect the environment and public health.

Challenges in the Interplay of Law and Society

Disparity between Formal and Informal Legal Systems

In India, there exists a disparity between formal and informal legal systems. While formal legal
systems, comprising of legislations and judicial institutions, aim to provide justice and protect
the rights of individuals, informal legal systems, such as customary laws and traditional dispute
resolution mechanisms, continue to be prevalent in many parts of the country.

These informal systems are often influenced by social norms, customs, and practices, and may
not always align with the principles of fairness, equality, and justice. This creates challenges in
ensuring access to justice for all, especially for marginalized sections of society.

Gender Inequality and Discrimination

Despite legal reforms, gender inequality and discrimination persist in Indian society. Women
continue to face challenges such as gender-based violence, discrimination in the workplace, and
unequal access to resources and opportunities. Although laws have been enacted to address these
issues, implementation remains a challenge, and societal attitudes and patriarchal norms often
hinder the effective enforcement of these laws.

For instance, cases such as Nirbhaya case (2012) and Kathua rape case (2018) highlight the
deep-rooted gender discrimination and violence against women in Indian society, and the need
for concerted efforts from both law and society to address these challenges.

Caste Discrimination and Social Injustice

Caste discrimination is a social challenge that continues to persist in India despite legal
provisions. The caste system, deeply entrenched in Indian society, often results in social
injustice, exclusion, and discrimination against marginalized castes and communities. Although
laws such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(commonly known as the SC/ST Act) have been enacted to protect the rights of Scheduled
Castes and Scheduled Tribes, discrimination based on caste is still prevalent in many parts of the
country.

Social attitudes, biases, and prejudices often impede the effective implementation of these laws,
and the need for social reform and sensitization remains crucial in addressing the challenges of
caste discrimination and social injustice.
Access to Justice

Despite the constitutional guarantee of access to justice for all, many individuals, especially
those from marginalized sections of society, face challenges in accessing the formal legal
system. Factors such as poverty, illiteracy, lack of awareness, and geographical remoteness often
hinder their ability to seek justice through the formal legal system.

This leads to a reliance on informal dispute resolution mechanisms, which may not always
provide adequate protection of rights or ensure fair and just outcomes. The need for legal
literacy, legal aid, and support systems to enable effective access to justice for all is a critical
challenge in the interplay of law and society in India.

The Role of Law and Society in Promoting Social Justice

Legal Education and Awareness

Legal education and awareness are crucial in promoting social justice in society. Legal literacy
programs, awareness campaigns, and efforts to make legal information accessible and
understandable to all can empower individuals with knowledge about their rights and
responsibilities.

This can enable them to assert their rights, navigate the legal system, and seek redressal for
injustices. Legal education and awareness initiatives also play a critical role in sensitizing
society to issues such as gender discrimination, caste discrimination, and social injustice, and
fostering a culture of respect for the rule of law.

Social Reform Movements

Social reform movements have historically played a significant role in driving legal reforms in
India. Movements advocating for the rights of women, Dalits, LGBTQ+ communities, and other
marginalized groups have led to the enactment of progressive laws to protect their rights and
promote social justice.

These movements have also created awareness, challenged social norms, and brought social
issues to the forefront, leading to changes in societal attitudes and behaviours. The interplay of
law and society through social reform movements has been instrumental in shaping the legal
landscape in India.

Sensitisation of Judicial Institutions

Judicial institutions play a critical role in interpreting and applying laws in society. Sensitization
of these institutions to social issues such as gender discrimination, caste discrimination, and
social injustice is crucial in ensuring fair and just outcomes.

Judicial activism, as demonstrated in cases such as Vishaka v. State of Rajasthan (1997) and
Navtej Singh Johar v. Union of India (2018), has been instrumental in addressing social issues
and promoting social justice. Sensitisation efforts, including training programs, workshops, and
awareness campaigns, can help ensure that the judiciary remains responsive to the evolving
needs of society and promotes social justice through its decisions.

Collaborative Efforts between Law and Society

The interplay of law and society is most effective when there is a collaboration between the two.
Efforts to bridge the gap between formal and informal legal systems, promote legal literacy and
awareness, and create support systems for access to justice require collaboration between legal
institutions, civil society organizations, and communities.

Collaborative efforts between law and society can lead to a better understanding of societal
needs, effective implementation of laws, and promotion of social justice.

Conclusion
The interplay of law and society in India is complex and multifaceted. While law serves as a tool
for promoting social justice, society also influences the development, interpretation, and
enforcement of laws. Challenges such as disparity between formal and informal legal systems,
gender inequality, caste discrimination, and access to justice persist, and require concerted
efforts from both law and society to address them.

Legal education, awareness, social reform movements, sensitization of judicial institutions, and
collaborative efforts between law and society are crucial in promoting social justice and creating
a just and equitable society.

Law and society are intertwined in a complex relationship in India. While the law provides the
framework for promoting social justice, societal factors such as cultural norms, traditions, and
attitudes often influence the development, interpretation, and enforcement of laws. The
challenges of gender inequality, caste discrimination, access to justice, and other social injustices
require a holistic approach that involves both law and society working together.

Efforts to promote legal literacy, awareness, social reform movements, sensitization of judicial
institutions, and collaborative efforts between law and society can lead to positive changes and
promote social justice in Indian society.