Legal Language Notes | B.A. LL.B. (Five Year Course) Semester 5 | Mumbai University | munotes

It is laid down by a recognised authority. In India that is Parliament and the State legislatures under articles 245 and 246, the President and Governors through Ordinances, and, in delegated form, the Government through rules, regulations, orders, bye-laws and notifications. It also includes the law declared by the Supreme Court, which article 141 makes binding on all courts within the territory of India.

It applies generally, not to one named person. A rule directed at one individual is an order, not a law.

It is backed by the force of the State. A rule nobody will enforce is a moral rule or a social convention. The distinguishing mark of a legal rule is that a court will act on it, and behind the court stands the machinery of the State.

Article 13(3)(a), the definition to quote

The Constitution does not define "law" for all purposes. It defines it for Part III, which contains the fundamental rights, and that definition is the one a student should be able to reproduce.

Article 13(3)(a): "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Three things are worth noticing in that list. It is an inclusive definition, opening with "includes", so it widens rather than closes. It reaches subordinate legislation, so a bye-law of a municipality is "law" and can be struck down for violating a fundamental right just as an Act of Parliament can. And it expressly names custom or usage, which is the bridge to the next concept on MU's list.

Where Indian law actually comes from

The Constitution, which is the supreme law and the source of the power to make all the rest.

Legislation: Acts of Parliament and of the State legislatures. This is the largest source and the one that grows fastest.

Subordinate or delegated legislation: rules, regulations, notifications, orders and bye-laws made under an Act by the authority the Act names. Section 3(51) of the General Clauses Act 1897 defines "rule" as a rule made in exercise of a power conferred by any enactment.

Precedent, the decisions of courts. Article 141 makes the law declared by the Supreme Court binding on all courts in India, so a decision of that Court is a source of law and not merely a record of one.

Custom, where it satisfies the tests set out below.

Personal law, which for a first-year student is best understood as a body of rules derived from religion and custom, much of it now put into statutory form. Article 372 kept all law in force before the Constitution in force after it, until altered, repealed or amended, which is why Acts of 1872 and 1882 are still being applied today.

Custom

What it is

A custom is a practice which a community has followed for so long, and so consistently, that the law will enforce it as a rule even though no legislature ever enacted it.

Custom is the oldest source of law there is. Legislation is a recent invention by comparison. Long before anyone drafted an Act, disputes were settled by asking what had always been done in that place, in that trade or in that family, and the answer was treated as binding.

The statutory test

Note that there is no general Indian statute defining "custom" for all purposes. What exists is a definition inside one Act, and it is the one to quote because it puts the judge-made tests into statutory words.

Section 3(a) of the Hindu Marriage Act 1955: the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. There is a proviso that the rule must be certain and not unreasonable or opposed to public policy, and a second proviso that a family custom must not have been discontinued by the family.

The tests, taken apart

Pull that definition to pieces and you get the conditions a custom must satisfy. This is the list that earns marks.

One, antiquity. It must have been observed "for a long time". How long is not fixed by any number in Indian law; what matters is that it is old enough for people to have regarded it as binding rather than as a recent convenience.

Two, continuity. It must have been observed "continuously". A practice abandoned for a generation and revived is not a custom.

Three, uniformity. It must have been observed "uniformly". If half the community did one thing and half did another, no rule can be extracted.

Four, certainty. The proviso requires the rule to be "certain". A vague practice cannot be enforced, because a court could not say what it required.

Five, reasonableness. The proviso requires that it be "not unreasonable".

Six, not opposed to public policy, and, more generally, not contrary to any statute. A custom cannot override an Act. This is the single most important limit and it is where custom most often fails in modern cases.

Seven, it must be proved. Custom is a question of fact. The party who asserts a custom must prove it by evidence, and a court will not assume it.

Custom and the Constitution

Custom sits inside article 13(3)(a), which means a custom having the force of law is "law" for the purposes of Part III. The consequence is direct: a custom that violates a fundamental right is void to the extent of the violation, exactly as a statute would be.

That is not theoretical. In the Sabarimala case, worked at length in [Indian Young Lawyers Association v. State of Kerala], the majority tested a temple custom against articles 15 and 25 and held it could not stand. The minority judgment of Indu Malhotra J. took the opposite view of how far a court should test a religious practice at all. Both sides accepted that a custom is examinable; they differed on the standard.

Justice

Why no statute defines it

Justice is the standard by which law is judged, so it cannot be defined by law without circularity. What can be done, and what an examiner is looking for, is a clear account of the senses in which the word is used and of where the Constitution uses it.

The Preamble

The Preamble to the Constitution records that the people of India resolved to secure to all citizens JUSTICE, social, economic and political. Those three adjectives are the syllabus's own vocabulary and each means something distinct.

Social justice means the removal of inequalities of status: caste, sex, religion, place of birth. Articles 15, 16 and 17 are its operative provisions.

Economic justice means the removal of gross inequality of wealth and opportunity. Much of Part IV, the Directive Principles, is directed at it.

Political justice means an equal share in political power: one adult, one vote, of equal value.

Note carefully what the Preamble can and cannot do with this. In In re Berubari Union, AIR 1960 SC 845, it was argued that the Preamble itself prohibited the cession of Indian territory. Facts. The President referred to the Supreme Court under article 143(1) the question whether the Indo-Pakistan Agreement of 1958, dividing Berubari Union and exchanging the Cooch-Behar enclaves, involved a cession of territory and how it could be implemented. Held. Although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution, is not a source of any substantive power, and equally is not a source of any prohibition or limitation. Implementing the agreement needed an amendment under article 368. Why it matters here. The Preamble tells you what justice the Constitution is aiming at; it does not by itself confer a right or impose a bar. The chapter on internal aids, [Internal Aids to the Interpretation of a Statute], returns to this case for the general rule about preambles.

The classical divisions

Two divisions are worth knowing, because they let you answer a question about justice without drifting into opinion.

Distributive justice is about how benefits and burdens are shared out in a society: who gets the reservation, who pays the tax, who receives the subsidy. It is addressed mainly to the legislature.

Corrective justice is about restoring the balance after a wrong: damages, restitution, punishment. It is addressed mainly to the courts.

Procedural justice, sometimes called natural justice, is about how a decision is reached rather than what it is. Two rules make it up: nobody may be a judge in their own cause, and both sides must be heard. A decision can be substantively right and still be set aside for breach of these.

A worked example

Anjali's grandfather dies in a village in Maharashtra. A local practice, which the family says has been followed in their community for as long as anybody can remember, gives the family house to the eldest son alone. Anjali's brother relies on it. Anjali says she is entitled to an equal share.

Step one: is the practice a custom in law? Her brother must prove antiquity, continuity and uniformity by evidence. Assertion is not enough; custom is a question of fact.

Step two: is it certain and reasonable? A rule that says "the eldest son takes the house" is at least certain. Whether it is reasonable is a separate question.

Step three, and this is where it fails: does it conflict with a statute? Since the Hindu Succession (Amendment) Act 2005, a daughter is a coparcener by birth in the same manner as a son. A custom cannot override an Act of Parliament. That is the sixth test, and it is decisive.

Step four: article 13(3)(a). Even without the statute, the custom has the force of law and is therefore "law" for Part III, so it would have to survive article 15's prohibition of discrimination on grounds of sex.

Notice how the analysis ran. Not "this is unfair", which is an appeal to justice in the abstract, but "this fails test six", which is an argument a court can act on. That is the difference the subject exists to teach.

Distinctions table

What these words do NOT mean

Law is not the same as morality. They overlap and they are not identical. Ingratitude is immoral and is not unlawful. Parking on a yellow line is unlawful and is not immoral. A student who defines law as "rules of right conduct" has defined morality.

Custom is not "what people usually do". Most habits are not customs. Without antiquity, continuity, uniformity, certainty and consistency with statute, a practice is a habit, and a court will not enforce it.

Custom does not beat a statute. This is the error most often made in an exam answer. Custom is a source of law that yields to legislation, not one that competes with it.

Justice is not the same as law. A rule can be perfectly valid and produce an unjust result; that is why appeals, amendments and the Directive Principles exist. Equally, an answer that treats "unjust" and "illegal" as the same word is wrong.

Limits and criticism

Custom is a shrinking source. As Parliament and the legislatures cover more ground, and as codification proceeds, there is less space where a custom can operate at all. Much of what was once Hindu customary law is now in the Hindu Marriage Act 1955 and the Hindu Succession Act 1956.

Proving a custom is hard and getting harder. Oral evidence of what a community has always done becomes weaker as communities disperse.

"Justice" in the Preamble is not directly enforceable. Berubari settles that the Preamble is not a source of power or of prohibition. Its value is as a guide to construction and as a statement of purpose, and that is the honest way to use it in an answer.

Quick revision

Law: three senses, a body of rules, one enactment, a law of nature. Made by a recognised authority, general in application, backed by the force of the State. Article 13(3)(a) includes Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Sources: Constitution, legislation, delegated legislation, precedent (article 141), custom, personal law. Article 372 continued pre-Constitution law.

Custom: section 3(a), Hindu Marriage Act 1955. Continuously and uniformly observed for a long time, has obtained the force of law, certain, not unreasonable, not opposed to public policy. Seven tests: antiquity, continuity, uniformity, certainty, reasonableness, not contrary to statute or public policy, and proved as a fact. Inside "law" in article 13(3)(a), so testable against the fundamental rights.

Justice: not statutorily defined. Preamble: social, economic and political. Distributive, corrective and procedural. In re Berubari Union, AIR 1960 SC 845: the Preamble is a key to the mind of the makers, not a source of power or of prohibition.

Test yourself

1. Define "law" as the Constitution defines it, and say for what purpose that definition operates.

Article 13(3)(a) provides that in that article, unless the context otherwise requires, "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is an inclusive definition and it operates for Part III, the fundamental rights, so that anything within it can be tested against those rights and is void to the extent of any inconsistency.

2. State the tests a custom must satisfy before a court will enforce it.

Antiquity, that it has been observed for a long time; continuity, that observance has not been broken; uniformity, that it has been observed consistently; certainty, so that a court can say what it requires; reasonableness; that it is not opposed to public policy and not contrary to any statute; and that it is proved by evidence, custom being a question of fact. Section 3(a) of the Hindu Marriage Act 1955 puts the first five into statutory words for that Act.

3. Can a custom prevail over an Act of Parliament?

No. Custom is a source of law that yields to legislation. A custom inconsistent with a statute is unenforceable to the extent of the inconsistency, and a custom having the force of law is also "law" within article 13(3)(a), so it must additionally survive the fundamental rights.

4. What did the Supreme Court hold about the Preamble in the Berubari reference?

That although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution and cannot be regarded as the source of any substantive power, and that the same is true of prohibitions and limitations. The argument that the Preamble by itself prevented the cession of territory was therefore rejected, and the Court held that a constitutional amendment under article 368 was required.

5. Distinguish law from morality with two examples.

Law is enforced by the State through courts; morality is not. The two overlap without coinciding. Ingratitude to a benefactor is immoral and no court will act on it. Parking a car on a yellow line is unlawful and nobody would call it immoral. A definition of law as "rules of right conduct" is a definition of morality and will lose marks.

6. What are the three kinds of justice named in the Preamble, and what does each mean?

Social justice, the removal of inequalities of status such as caste, sex, religion and place of birth, given effect by articles 15, 16 and 17. Economic justice, the reduction of gross inequality of wealth and of opportunity, addressed largely by the Directive Principles in Part IV. Political justice, an equal share in political power, expressed in universal adult suffrage under article 326.

Positive and negative. A positive right requires somebody to do something, such as pay. A negative right requires somebody to refrain, such as not to trespass.

Right in rem and right in personam. A right in rem is available against the world at large: ownership of land is the standard example, because everybody is under a duty not to interfere with it. A right in personam is available against a definite person only, and a right under a contract is the standard example, because only the other contracting party owes the duty. The distinction decides who can be sued.

Legal and equitable, a division inherited from English law and of limited use in India, where the two systems were never administered separately.

Fundamental rights, which are the rights in Part III of the Constitution, enforceable against the State and, in some cases, against private persons. They are dealt with in the chapters on writs and on the six named judgments.

Hohfeld, briefly, and why it is worth two sentences

The word "right" is used loosely for four different relations, and a well known analysis by Hohfeld separates them: a claim, which is a right in the strict sense with a duty facing it; a liberty or privilege, meaning simply the absence of a duty not to do something; a power, an ability to change legal relations, such as the power to make a will; and an immunity, a freedom from another's power.

Two sentences on this will improve an answer on the meaning of "right". A whole page on it will lose marks in a first-year paper, because the question asked is almost always simpler.

Duty

What it is

A duty is an obligation to act or to refrain from acting, imposed by law, whose breach the law treats as a wrong.

Correlativity, and its one exception

Every right has a duty facing it. That is what makes the right real: a right without anybody bound by it is a wish.

Does the reverse hold, so that every duty has a right facing it? Mostly yes, and there is a familiar class of exceptions: absolute duties, owed to the State or to the public generally rather than to any identified person. The duty not to commit an offence is the clearest case. Nobody holds a corresponding private right that they can sue on; the State prosecutes.

Fundamental duties

Article 51A of the Constitution lists the fundamental duties of every citizen: to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish the noble ideals of the freedom struggle; to protect the sovereignty, unity and integrity of India; to defend the country; to promote harmony and the spirit of common brotherhood; to value and preserve the rich heritage of the composite culture; to protect and improve the natural environment; to develop the scientific temper; to safeguard public property and abjure violence; to strive towards excellence; and the duty of a parent or guardian to provide opportunities for education to a child between six and fourteen years.

Note the point that carries marks: article 51A is not directly enforceable. No court will issue a writ compelling a citizen to develop a scientific temper. Its value is as a guide to construction and as a foundation on which the legislature may build.

Wrong

What it is

A wrong is the breach of a legal duty. That is the whole definition, and it is the one to write down.

A moral wrong is not a legal wrong unless the law has made the conduct a breach of duty. This follows from the chapter before this one: law and morality overlap and are not the same.

Civil wrong and criminal wrong

This division decides who brings the case, what has to be proved, and what the court can do.

A civil wrong is a breach of duty owed to a determinate person, who sues in their own name for a remedy that compensates or restores. Breach of contract, tort and breach of trust are the main classes.

A criminal wrong, or offence, is a breach of duty owed to the community. The State prosecutes, in the name of the State, and the outcome is punishment rather than compensation. "Offence" is defined in section 3(38) of the General Clauses Act 1897 as any act or omission made punishable by any law for the time being in force, and it is dealt with in [Fact, Person, Offence and State].

The same act can be both. If Rahul drives negligently and injures Sameer, Sameer may sue in tort for damages and the State may prosecute for the offence. The two proceedings are independent: an acquittal does not bar the civil suit, because the standard of proof is different.

Two Latin tags worth knowing

Damnum sine injuria, meaning loss without legal injury. A person suffers real damage but no legal right of theirs has been violated, so there is no wrong and no remedy. A new shop opens next to yours and your profits fall. That is loss, and it is not a wrong, because you have no right to be free of competition.

Injuria sine damno, meaning legal injury without loss. A legal right is violated but no actual damage follows. A trespass across an empty field harms nothing and is still actionable, because the right to exclusive possession has been invaded. Rights in rem, such as ownership, are typically actionable without proof of damage.

Remedy

What it is

A remedy is what a court gives to enforce a right or to redress a wrong.

The maxim

Ubi jus ibi remedium: where there is a right, there is a remedy. Understand what it means and what it does not. It does not mean a court will invent relief whenever somebody feels wronged. It means that the law will not recognise a right and then leave it bare, so where a legal right exists and has been violated, the law provides some means of enforcing it.

The corollary is used constantly in argument: if the law gives no remedy at all for a supposed injury, that is a strong indication no legal right was involved. That is the reasoning behind damnum sine injuria.

The kinds of remedy

Damages, a money payment to compensate for loss. The commonest civil remedy.

Specific relief, where money is not enough and the court orders the very thing to be done. The Specific Relief Act 1963 governs it. Section 4 states the boundary: specific relief can be granted only for enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Declaration. Section 34 of the Specific Relief Act allows a person entitled to any legal character, or to any right as to property, to sue for a declaration that he is so entitled. The court declares the position; it does not order anybody to do anything.

Injunction, an order to do or refrain from doing something. Section 36 says preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. Section 37(1) says temporary injunctions continue until a specified time or until further order and may be granted at any stage of a suit, being regulated by the Code of Civil Procedure 1908. Section 37(2) says a perpetual injunction can only be granted by the decree at the hearing and on the merits, and perpetually restrains the defendant from an act contrary to the plaintiff's rights. Section 38 sets out when a perpetual injunction may be granted. Injunctions are worked in full in [Writ, Stay Order, Injunction and Adjournment].

Restitution, restoring a party to the position they were in before.

Constitutional remedies, the writs under articles 32 and 226, dealt with in [Writ, Stay Order, Injunction and Adjournment].

Punishment, which is the criminal law's answer to a criminal wrong, and is not a remedy in the private law sense at all.

The remedy can die while the right lives

Two situations, and both are examinable.

Limitation. Section 3(1) of the Limitation Act 1963 provides that, subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The right is not extinguished by lapse of time in the ordinary case; the ability to enforce it in court is. The maxim behind this rule, vigilantibus, non dormientibus, jura subveniunt, meaning the law assists those who are vigilant and not those who sleep on their rights, is worked in [Legal Maxims: the First Eight].

A right with no forum. If the only court that could hear the claim has had its jurisdiction ousted, the right may exist and be unenforceable. Whether jurisdiction has in fact been ousted is a question dealt with in [International Law, Arbitration, Jurisdiction and Amicus Curiae].

A worked example

Meera owns a plot in Thane with a right of way over Nikhil's adjoining land, granted by a registered deed in 2015. In March 2026 Nikhil builds a wall across the path.

The right. Meera has an easement, a right in rem over Nikhil's land, whose title is the deed of 2015. Its content is passage; its object is the strip of land; the person of inherence is Meera; the person of incidence is Nikhil and, because it is a right in rem, everybody else as well.

The duty. Nikhil is under a negative duty not to obstruct the way.

The wrong. Building the wall is a breach of that duty and so a civil wrong. Note that Meera need not prove she lost money: this is injuria sine damno, an invasion of a right which is actionable in itself.

The remedy. Damages would be useless, because what Meera wants is to use the path. So she asks for an injunction. She will seek a temporary injunction under section 37(1) of the Specific Relief Act read with the Code of Civil Procedure to have the wall left alone or removed while the suit runs, and a mandatory perpetual injunction at the hearing under sections 37(2) and 38 requiring the wall to be pulled down. She may add a claim for a declaration under section 34 that the right of way exists.

And the trap. If Meera waits until 2036 to sue, section 3 of the Limitation Act will require the court to dismiss the suit even if Nikhil never raises the point. Her right will still exist; her remedy will be gone.

Distinctions table

What these words do NOT mean

A right is not the same as what you want. An interest becomes a right only when the law recognises and protects it. "I have a right to be left alone by competitors" is not a right, which is why damnum sine injuria exists.

A duty is not always owed to somebody in particular. Absolute duties are owed to the State or the public, and the criminal law is built on them.

A wrong is not the same as harm. Harm without breach of duty is damnum sine injuria and gives nothing. Breach of duty without harm is injuria sine damno and can still give a remedy.

A remedy is not automatic. Specific relief and injunctions are discretionary: section 36 says preventive relief is granted "at the discretion of the court".

Losing the remedy is not always losing the right. Limitation ordinarily bars the suit and leaves the right standing, which is why a time barred debt voluntarily paid is validly paid.

Limits and criticism

Correlativity is a useful rule and not a universal one. Absolute duties have no corresponding private right, and some rights, on the Hohfeldian analysis, are liberties with no duty facing them at all.

Article 51A is a list without a sanction, and it is fairly criticised for that. The answer usually given is that it guides interpretation and gives the legislature a foothold, which is real but modest.

Ubi jus ibi remedium is a principle, not a rule of jurisdiction. It does not create a court where none exists, and it does not survive an express statutory bar.

Quick revision

Right: an interest recognised and protected by law, whose violation is a legal wrong. Five elements: holder, person of incidence, content, object, title. Kinds: perfect and imperfect, positive and negative, in rem and in personam, fundamental.

Duty: an obligation imposed by law. Correlative to a right, except an absolute duty owed to the State. Article 51A, eleven fundamental duties, not enforceable.

Wrong: breach of a legal duty. Civil, sued on by the injured person for a remedy; criminal, prosecuted by the State for punishment. The same act can be both. Damnum sine injuria, loss without legal injury, no remedy. Injuria sine damno, legal injury without loss, actionable.

Remedy: damages, specific relief, declaration (Specific Relief Act 1963, s.34), injunction (ss.36, 37, 38), restitution, writs, punishment. Ubi jus ibi remedium. Limitation Act 1963, s.3: a suit filed after the prescribed period shall be dismissed although limitation has not been set up as a defence.

Test yourself

1. Define a legal right and name its five elements.

A legal right is an interest recognised and protected by law, the violation of which is a legal wrong. Its five elements are the holder or person of inherence; the person of incidence, who bears the correlative duty; the content, being what the right entitles the holder to; the object, the thing to which it relates; and the title, the fact or event from which it arose.

2. Explain the correlativity of rights and duties, and state its exception.

Every legal right in one person implies a corresponding legal duty in another, and it is that duty which makes the right effective. The converse is not universal: absolute duties are owed to the State or to the public generally and no determinate person holds a matching right. The duty not to commit an offence is the standard example, which is why the State and not a private individual prosecutes.

3. Distinguish damnum sine injuria from injuria sine damno, with an example of each.

Damnum sine injuria is damage without legal injury: real loss is suffered but no legal right has been violated, so there is no wrong and no remedy, as where a new competing shop reduces a trader's profits. Injuria sine damno is legal injury without damage: a right is violated although no loss follows, as in a trespass over vacant land, and it is actionable because the right to exclusive possession has itself been invaded.

4. A debt becomes time barred. Has the creditor's right been extinguished?

Ordinarily no. Section 3 of the Limitation Act 1963 requires the court to dismiss a suit filed after the prescribed period, and to do so although limitation has not been pleaded, so the remedy by suit is lost. The right itself survives, which is why a payment voluntarily made by the debtor after the period has expired is a good payment and cannot be recovered back. It is an example of an imperfect right.

5. What is the difference between a temporary and a perpetual injunction?

A temporary injunction, under section 37(1) of the Specific Relief Act 1963, continues until a specified time or until the further order of the court, may be granted at any stage of a suit, and is regulated by the Code of Civil Procedure 1908. A perpetual injunction, under section 37(2), can be granted only by the decree made at the hearing and upon the merits, and perpetually restrains the defendant from asserting a right or committing an act contrary to the plaintiff's rights.

6. Are the fundamental duties in article 51A enforceable in a court?

Not directly. Article 51A lists eleven duties of every citizen but attaches no sanction and creates no cause of action, so no writ will issue to compel a citizen to perform one. Its practical value is that courts use it in construing statutes and in weighing the reasonableness of restrictions, and it gives the legislature a constitutional foothold for laws that give effect to those duties.

The half students miss

Read the definition again. It has two limbs, and the second is the important one.

The first limb is physical: things, states of things and relations of things that the senses can perceive. A knife on a table. A wall that has been built. A signature on a page.

The second limb is mental: any mental condition of which a person is conscious. That a person had a particular intention, or knew something, or acted in good faith, or held an opinion, is a fact. It is not merely an inference about a fact; the statute says it is one.

This matters everywhere. Almost every offence requires a guilty mind, and almost every contractual dispute turns on what somebody intended. If a state of mind were not a fact, it could not be proved by evidence at all, and none of those cases could be decided.

Fact and law

Two words a first-year student needs, because they decide what an appeal can be about.

A question of fact is a question about what happened: was the signature genuine, was the shop open, did the accused know.

A question of law is a question about what the rules require: does that conduct fall inside section 318, is the suit barred by limitation.

The line matters because a second appeal under section 100 of the Code of Civil Procedure 1908 lies only on a substantial question of law, and because custom, as [Law, Custom and Justice] explains, is a question of fact that must be proved by evidence.

Facts in issue are the facts that the case actually turns on, which the pleadings or the charge put in dispute. Relevant facts are facts connected with them in a way the Adhiniyam recognises, so that evidence about them may be given.

Person

The definition

Section 3(42) of the General Clauses Act 1897: "person" shall include any company or association or body of individuals, whether incorporated or not.

Section 2(26) of the Bharatiya Nyaya Sanhita 2023 is in the same terms: "person" includes any company or association or body of persons, whether incorporated or not.

Natural and legal persons

A natural person is a human being.

A legal person, also called an artificial or juristic person, is anything else the law treats as capable of holding rights and owing duties. A company incorporated under the Companies Act 2013 is the standard example: it can own property in its own name, contract, sue and be sued, and it continues to exist when its members change or die. A registered society, a corporation created by statute such as a municipal corporation, and an idol in a Hindu temple treated as a juristic person for the purpose of holding property, are all legal persons.

What follows from that

A company can commit an offence. Because "person" includes a company, a penal provision that speaks of a person reaches a company, subject to the practical limit that a sentence of imprisonment cannot be executed against it.

A company can hold fundamental rights, but not all of them. Rights available to "any person", such as article 14, are available to a company. Rights available only to "citizens", such as those in article 19, are not, because a company is not a citizen.

A partnership firm is not a separate legal person in general law, though it is treated as a unit for some purposes such as suing in the firm name under Order XXX of the Code of Civil Procedure 1908.

The word to be careful about

"Person" in the criminal law includes the accused, the victim and third parties, and a provision often has to be read to see which is meant. Note also that in the Bharatiya Nyaya Sanhita a separate word, "public", is defined in section 2(27) as including any class of the public or any community, and it is not interchangeable with "person".

Offence

The definitions, and there are three

The general definition, and the one to quote unless the question is about a particular Code, is section 3(38) of the General Clauses Act 1897: "offence" shall mean any act or omission made punishable by any law for the time being in force.

The procedural definition is section 2(1)(q) of the Bharatiya Nagarik Suraksha Sanhita 2023, which is in the same words and adds that it includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act 1871.

The penal definition is section 2(24) of the Bharatiya Nyaya Sanhita 2023, and it is narrower and more complicated. Except in the chapters and sections it lists, "offence" means a thing made punishable by the Sanhita itself. In Chapter III and in a long list of named sections, it means a thing punishable under the Sanhita or under any special or local law. In a further list of sections it carries that wider meaning only where the act punishable under the special or local law is punishable with imprisonment for six months or more.

What the general definition actually tells you

An offence is defined by its consequence, not by its wickedness. If a law makes an act or omission punishable, it is an offence. If no law does, it is not, however bad it is. This is the legal answer to "surely that should be a crime".

An omission counts. Failing to do something the law requires is as much an offence as doing something the law forbids, where the law makes that failure punishable. Section 3(2) of the General Clauses Act reinforces this: "act", used with reference to an offence or a civil wrong, includes a series of acts, and words which refer to acts done extend also to illegal omissions.

"For the time being in force" are words that carry weight. An act is an offence only if a law making it punishable was in force when it was done. That is why article 20(1) forbids conviction for an act that was not an offence at the time of commission, and it is the basis of the rule against retrospective penal law, worked in [Prospective Application and Retrospective Effect].

Two classifications worth carrying

Cognizable and non-cognizable. Section 2(1)(g) of the Sanhita defines a cognizable offence as one for which a police officer may, in accordance with the First Schedule or any other law, arrest without warrant. Everything else is non-cognizable.

Bailable and non-bailable. Section 2(1)(c) defines a bailable offence as one shown as bailable in the First Schedule or made bailable by any other law, and a non-bailable offence as any other offence. This is dealt with further in [Cause of Action, Issue, Charge and Bail].

State

The definition

Article 12 of the Constitution: in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Why this is one of the most litigated definitions in Indian law

Part III contains the fundamental rights, and most of them are enforceable against the State. So whether a body is "the State" decides whether a citizen can bring a writ petition against it at all. A refusal of admission by a State university is testable against article 14; the same refusal by a purely private club is not.

The four categories in the article, and the fifth the courts added

The Government and Parliament of India. The Union executive and legislature.

The Government and the Legislature of each State.

All local authorities. Municipal corporations, municipalities, panchayats, improvement trusts, port trusts. The word "local authority" is itself defined in section 3(31) of the General Clauses Act 1897.

All other authorities within the territory of India or under the control of the Government of India. This is the open-ended limb and it is where the litigation is. The courts have read it to cover statutory corporations and, beyond them, bodies which are instrumentalities or agencies of the State, looking at matters such as whether the entire share capital is held by the Government, whether it enjoys a monopoly conferred or protected by the State, whether it is under deep and pervasive State control, and whether its functions are of public importance and closely related to governmental functions.

The fifth category is the judiciary, and the position is more careful than students usually state it. A court is plainly an authority. The working position is that the judiciary is "the State" when it acts on its administrative side, and that a judicial order made in a dispute between two private parties is not ordinarily attacked as a violation of fundamental rights.

The escape clause

Article 12 opens with "unless the context otherwise requires", and article 12 is a definition for Part III only. Elsewhere in the Constitution, "State" often means the political unit, as in article 1 or in the First Schedule. Reading the article 12 meaning into article 246 would produce nonsense.

A worked example

Sunita is refused a seat in a professional college. She wants to file a writ petition under article 226 alleging that the refusal violates article 14.

Is the college "the State"? If it is a government college, yes, as part of the State Government's own machinery. If it is a university created by a State Act, it is a statutory authority and so an "other authority". If it is a private unaided college with no State funding and no statutory status, it is ordinarily not the State, and Sunita's remedy against it lies elsewhere.

What are the facts in issue? That she applied, that she was eligible, that a seat was available, that the refusal happened, and, if she alleges hostile discrimination, the state of mind of the persons who refused. The last one is a fact, because section 2(1)(f) of the Adhiniyam brings a mental condition inside the word.

Is a "person" involved? Yes, in two senses. Sunita is a natural person. The college, if incorporated or registered, is a legal person, and it is that legal person, not its individual officers, who will be the respondent.

Is any offence involved? On these facts, no. Refusing admission is not made punishable by any law for the time being in force, so it is not an offence within section 3(38), whatever anybody thinks of it. That is exactly the point of defining an offence by punishability.

Distinctions table

What these words do NOT mean

"Fact" is not limited to what you can see. A state of mind is a fact by definition. A student who writes that intention is "not a fact but an inference" has contradicted the statute.

"Person" is not limited to human beings, and forgetting this makes company law incomprehensible.

An offence is not simply something wrong. Unless a law in force makes the act or omission punishable, it is not an offence.

"State" in article 12 is not the same as a State of the Union. Article 12 defines the word for Part III; Maharashtra is a State in the other sense.

Article 12 is not exhaustive. It says "includes", so it widens the ordinary meaning rather than confining it, which is why the courts have been able to bring instrumentalities of the State inside it.

Limits and criticism

The open-ended fourth limb of article 12 has been criticised as uncertain. Whether a body is an instrumentality is decided on a multi-factor test, and multi-factor tests are hard to predict. The competing view is that a rigid rule would let the State escape the fundamental rights by choosing a corporate form for what is really governmental work.

The three definitions of "offence" do not read alike, and section 2(24) of the Bharatiya Nyaya Sanhita in particular is a definition by exception and cross-reference which is very hard to read. For general purposes the General Clauses Act definition is the one to use, and it should be identified as such.

The line between fact and law is not always clean. Whether particular conduct amounts to negligence, for instance, is often described as a mixed question of fact and law, and appellate courts spend a good deal of time on which side of the line a question falls.

Quick revision

Fact: Bharatiya Sakshya Adhiniyam 2023, s.2(1)(f). Two limbs: anything perceptible by the senses, and any mental condition of which a person is conscious. A state of mind IS a fact. Facts in issue and relevant facts. Question of fact against question of law; second appeal under CPC s.100 lies only on a substantial question of law.

Person: General Clauses Act 1897, s.3(42), and Bharatiya Nyaya Sanhita 2023, s.2(26). Includes any company or association or body of individuals, incorporated or not. Natural and legal persons. A company holds rights given to "any person" but not those given to "citizens".

Offence: General Clauses Act 1897, s.3(38), and BNSS 2023, s.2(1)(q): any act or omission made punishable by any law for the time being in force. BNS 2023, s.2(24) is narrower and lists exceptions. Section 3(2) of the General Clauses Act extends "act" to illegal omissions. Cognizable and non-cognizable, s.2(1)(g) BNSS; bailable and non-bailable, s.2(1)(c) BNSS.

State: Constitution, article 12, for Part III only. Government and Parliament of India; Government and Legislature of each State; all local authorities; all other authorities within India or under the control of the Government of India. "Includes", so not exhaustive.

Test yourself

1. Give the statutory definition of "fact" and explain why its second limb matters.

Section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023 says "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious. The second limb matters because almost every offence requires a guilty mind and most civil disputes turn on intention. By making a state of mind a fact, the statute makes it something that can be proved by evidence, without which those cases could not be tried at all.

2. Is a company a "person"? What follows?

Yes. Section 3(42) of the General Clauses Act 1897 and section 2(26) of the Bharatiya Nyaya Sanhita 2023 both include any company or association or body of individuals, whether incorporated or not. It follows that a company can own property, contract, sue and be sued in its own name, and can be prosecuted for an offence, subject to the practical limit that it cannot be imprisoned. It also holds those fundamental rights conferred on "any person", such as article 14, but not those conferred on citizens, such as those in article 19.

3. Define "offence" and explain the significance of the words "for the time being in force".

Section 3(38) of the General Clauses Act 1897 defines an offence as any act or omission made punishable by any law for the time being in force. The quoted words mean that the act must have been punishable when it was done. An act that was lawful when committed does not become an offence because a later statute forbids it, which is what article 20(1) of the Constitution guarantees, and it is the criminal law's application of the presumption against retrospective operation.

4. Why does it matter whether a body is "the State" under article 12?

Because most fundamental rights in Part III are enforceable against the State, so the answer decides whether a writ petition can be brought at all. A body within article 12 must comply with articles 14, 15, 16 and the rest; a purely private body ordinarily need not, and a person aggrieved by it must look to contract, tort or a statutory remedy instead.

5. Article 12 lists four categories. Which is the contested one, and how do courts approach it?

"All other authorities within the territory of India or under the control of the Government of India". Courts have read it to include statutory corporations and bodies that are instrumentalities or agencies of the State, weighing such matters as government shareholding, a State conferred or protected monopoly, deep and pervasive State control, financial assistance meeting most of the expenditure, and functions of public importance closely related to governmental functions. No single factor is decisive.

6. Distinguish a question of fact from a question of law, and give one consequence of the distinction.

A question of fact asks what happened and is decided on evidence; a question of law asks what the legal rule requires and is decided by construing the provision and the precedents. One consequence is that a second appeal under section 100 of the Code of Civil Procedure 1908 lies only where a substantial question of law is involved, so a party dissatisfied with a concurrent finding of fact ordinarily has no further appeal.

The stages, in order

A student who can list these can answer almost any question about civil procedure at first-year level. Plaint filed. Summons issued to the defendant under section 27. Written statement filed by the defendant. Issues framed by the court under Order XIV. Evidence led by both sides. Arguments. Judgment. Decree drawn up. Execution, or appeal.

Plaint

What it is

A plaint is the written statement of the plaintiff's claim, presented to the court, which institutes the suit. It is the first pleading in a civil case.

A pleading, for a reader meeting the word for the first time, means a plaint or a written statement: the formal documents in which each side sets out the facts it relies on. Order VI is the Order that governs pleadings generally.

What must be in it

Order VII rule 1 lists the particulars a plaint must contain, and this list is asked directly. The plaint shall contain:

the name of the court in which the suit is brought; the name, description and place of residence of the plaintiff; the name, description and place of residence of the defendant, so far as they can be ascertained; where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect; the facts constituting the cause of action and when it arose; the facts showing that the court has jurisdiction; the relief which the plaintiff claims; where the plaintiff has allowed a set-off or relinquished part of his claim, the amount so allowed or relinquished; and a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees.

Two of those carry most of the weight. The cause of action, which is worked in [Cause of Action, Issue, Charge and Bail], is the bundle of facts the plaintiff must prove to succeed. The relief claimed is what the plaintiff actually wants the court to do, and a court will not ordinarily give relief that was never asked for.

Verification

Order VI rule 15(1) requires every pleading to be verified at the foot by the party, or by one of the parties pleading, or by some other person proved to the satisfaction of the court to be acquainted with the facts. Rule 15(2) requires the person verifying to specify, by reference to the numbered paragraphs, what is verified of his own knowledge and what upon information received and believed to be true.

That distinction is not a formality. A witness can be cross-examined on the difference between what they saw and what they were told.

When a plaint is thrown out

Order VII rule 11 says the plaint shall be rejected in these cases: where it does not disclose a cause of action; where the relief claimed is undervalued and the plaintiff fails to correct the valuation within the time fixed; where the relief is properly valued but the plaint is on insufficiently stamped paper and the plaintiff fails to supply the stamp paper within the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with rule 9.

Note two things. The word is "shall", so rejection is not discretionary once a ground is made out, which is a point to carry into [Interpretation of Directory and Mandatory Provisions]. And clause (d) says "appears from the statement in the plaint": the court looks at the plaint itself, not at the defence.

Complaint

The definition

Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023: "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report.

There is an Explanation: a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer making it shall be deemed to be the complainant.

The equivalent provision of the repealed Code of Criminal Procedure 1973 was section 2(d), in substantially the same words.

Taking the definition apart

"Any allegation made orally or in writing". A complaint need not be a document at all. This is the sharpest contrast with a plaint, which must be written and must be presented.

"To a Magistrate". Not to the police. An allegation made to the police is not a complaint within this definition; it may lead to a first information report, which is a different thing.

"With a view to his taking action under this Sanhita". The person must be asking the Magistrate to act, not merely informing him.

"That some person, whether known or unknown, has committed an offence". The accused need not be named. And what is alleged must be an offence, which as [Fact, Person, Offence and State] explains means an act or omission made punishable by a law in force.

"But does not include a police report". This is the exclusion that carries the Explanation, and it is the line between the two routes into a criminal court.

What happens to a complaint

Section 210(1) provides that any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of any offence upon receiving a complaint of facts which constitutes such offence; upon a police report of such facts; or upon information received from any person other than a police officer, or upon his own knowledge, that the offence has been committed. "Taking cognizance" means the Magistrate applying his mind to the offence for the purpose of proceeding.

Section 223(1) then requires a Magistrate taking cognizance on complaint to examine the complainant and any witnesses present upon oath, and to reduce the substance of the examination to writing, signed by the complainant, the witnesses and the Magistrate. A proviso in the Sanhita adds a requirement that did not exist under the old Code: no cognizance shall be taken without giving the accused an opportunity of being heard. Further provisos excuse the examination where the complaint is in writing and is made by a public servant acting in the discharge of official duties or by a court, or where the case is made over to another Magistrate under section 212.

Section 223(2) adds a further protection for public servants: no cognizance on a complaint against a public servant for an offence alleged in the discharge of official functions unless the public servant has had an opportunity to make assertions about the situation and a report from a superior officer has been received.

Section 224 deals with a complaint made to a Magistrate who is not competent to take cognizance: if it is in writing he returns it for presentation to the proper court with an endorsement, and if it is not in writing he directs the complainant to the proper court.

Affidavit

The definition

No Indian statute defines "affidavit" positively. What exists is section 3(3) of the General Clauses Act 1897, which extends the word: "affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing.

So the working definition, which is what to write, is this: an affidavit is a written statement of facts, made by a person called the deponent, sworn or affirmed before an officer authorised to administer an oath. It is evidence, given on oath, in writing, without the deponent standing in the witness box.

The Act's extension exists because not everybody swears on a religious text. A person who by law may affirm instead of swearing makes an affirmation, and section 3(3) puts it on the same footing.

The rules that govern it in a civil case

Order XIX rule 1: any court may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. There is a proviso that where it appears that either party bona fide desires the production of a witness for cross-examination, and the witness can be produced, an order shall not be made allowing the evidence to be given by affidavit.

That proviso is the whole balance of the rule. An affidavit is convenient, and the right to cross-examine is more important than convenience.

Order XIX rule 2: upon any application, evidence may be given by affidavit, but the court may order the deponent to attend for cross-examination.

Section 26(2) of the Code requires that in every plaint, facts shall be proved by affidavit, in the form and manner prescribed under Order VI rule 15A.

What an affidavit must and must not contain

It states facts, not argument and not law. It states them in the first person, in numbered paragraphs. It distinguishes what the deponent knows of his own knowledge from what he believes on information, and it says the source of the information.

A false statement in an affidavit is made on oath, which is why an affidavit is taken seriously and why swearing a false one exposes the deponent to prosecution.

A worked example

Two disputes arising out of one incident. Priya's neighbour Vikram builds a shed that encroaches two feet onto her plot in Kalyan, and in the argument that follows he pushes her and she falls.

The civil side. Priya wants the shed removed. She files a plaint in the competent civil court. It must contain the particulars in Order VII rule 1: the court's name, both parties' names and addresses, the facts constituting the cause of action, namely her title, his encroachment and the date, the facts showing jurisdiction, namely that the property is situated within that court's local limits, the relief claimed, namely a mandatory injunction to remove the shed and a declaration of title, and the value of the subject matter. She verifies it at the foot under Order VI rule 15, specifying what she knows personally and what she was told by the surveyor. On presentation under section 26 and Order IV, the suit is instituted. Because she also wants the construction stopped meanwhile, she applies for a temporary injunction and supports the application by an affidavit under Order XIX rule 2, which Vikram may ask the court to have her attend and be cross-examined on.

The criminal side. The push is a separate matter. Priya may go to the police, or she may go directly to the Magistrate and make a complaint under section 2(1)(h) of the Sanhita, orally or in writing, alleging that Vikram has committed an offence. The Magistrate, if he proposes to take cognizance under section 210(1)(a), must examine her on oath under section 223(1), reduce the substance to writing, and, under the first proviso, give Vikram an opportunity of being heard before taking cognizance.

Two proceedings, one incident. Neither bars the other, because as [Right, Duty, Wrong and Remedy] explains a single act can be both a civil wrong and a criminal one.

Distinctions table

What these words do NOT mean

A complaint is not a first information report. An FIR is information about a cognizable offence given to the police. A complaint is an allegation made to a Magistrate, and section 2(1)(h) expressly excludes a police report.

A complaint need not name the accused. The definition says "whether known or unknown".

A plaint is not the suit. The plaint is the document; the suit is the proceeding the document begins.

An affidavit is not a pleading. A plaint is a pleading and states the case; an affidavit is evidence and states facts on oath. A student who writes "I filed an affidavit to start the suit" has confused the two.

"Complaint" in ordinary speech is not "complaint" in law. Telling a police constable you have been cheated is not a complaint within section 2(1)(h), however much it feels like one.

Limits and criticism

The requirement in section 223 of hearing the accused before cognizance is new, and its practical effect is contested: it protects a person from being dragged to court on a frivolous private complaint, and it also delays the taking of cognizance and gives an accused notice at a very early stage.

Order VII rule 11 is a blunt instrument. Rejection for non-disclosure of a cause of action is decided on the plaint alone, which is meant to be a filter and is sometimes used to try the case at the threshold.

Proof by affidavit saves time and weakens testing. The proviso to Order XIX rule 1 is the safeguard, and it works only if the other side asks.

Quick revision

Suit: a civil proceeding of a civil nature, CPC s.9. Instituted by presenting a plaint, s.26(1) and Order IV. Stages: plaint, summons, written statement, issues, evidence, arguments, judgment, decree, execution or appeal.

Plaint: the first pleading in a civil suit. Contents, Order VII r.1, nine particulars including the facts constituting the cause of action and when it arose, the facts showing jurisdiction, and the relief claimed. Verified under Order VI r.15. Rejected under Order VII r.11 on six grounds, including no cause of action and barred by any law.

Complaint: BNSS 2023, s.2(1)(h). Any allegation, oral or written, to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence, but not a police report. Explanation: a police report on a non-cognizable offence is deemed a complaint. Cognizance under s.210; examination of the complainant on oath under s.223(1), and no cognizance without hearing the accused.

Affidavit: a written statement of facts sworn or affirmed. General Clauses Act 1897, s.3(3) includes affirmation and declaration. CPC Order XIX rr.1 and 2; the proviso to r.1 protects the right to cross-examine. CPC s.26(2): facts in a plaint to be proved by affidavit.

Test yourself

1. Distinguish a plaint from a complaint.

A plaint is the written first pleading of a plaintiff, presented to a civil court under section 26 and Order IV of the Code of Civil Procedure 1908, containing the particulars in Order VII rule 1, which institutes a civil suit and asks for a civil remedy. A complaint, under section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023, is any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence; it excludes a police report, needs no prescribed form, and seeks the punishment of the offender by the State.

2. List the particulars a plaint must contain.

Under Order VII rule 1: the name of the court; the name, description and residence of the plaintiff; the same for the defendant so far as ascertainable; a statement where either is a minor or of unsound mind; the facts constituting the cause of action and when it arose; the facts showing that the court has jurisdiction; the relief claimed; the amount allowed by way of set-off or relinquished; and a statement of the value of the subject matter for jurisdiction and court fees.

3. On what grounds shall a plaint be rejected?

Under Order VII rule 11: where it does not disclose a cause of action; where the relief is undervalued and the plaintiff does not correct the valuation in the time fixed; where the relief is properly valued but the paper is insufficiently stamped and the stamp paper is not supplied in the time fixed; where the suit appears from the statement in the plaint to be barred by any law; where it is not filed in duplicate; and where the plaintiff fails to comply with rule 9. The word used is "shall", so rejection is mandatory once a ground is established.

4. Can a complaint be made orally, and can it be made against an unknown person?

Yes to both. Section 2(1)(h) says "any allegation made orally or in writing", so no document is required, and it says "that some person, whether known or unknown, has committed an offence", so the accused need not be identified. What the definition does require is that the allegation be made to a Magistrate, that it be made with a view to his taking action under the Sanhita, and that what is alleged amounts to an offence.

5. What is an affidavit, and when may a court refuse to allow a fact to be proved by one?

An affidavit is a written statement of facts made by a deponent and sworn or affirmed before an authorised officer; section 3(3) of the General Clauses Act 1897 provides that the word includes affirmation and declaration by persons allowed by law to affirm or declare instead of swearing. Under the proviso to Order XIX rule 1 of the Code of Civil Procedure 1908, the court shall not order evidence to be given by affidavit where it appears that either party bona fide desires the production of the witness for cross-examination and that witness can be produced.

6. A police officer investigates and reports that a non-cognizable offence has been committed. Is that report a complaint?

Yes, by deeming. Section 2(1)(h) excludes a police report from the definition of a complaint, but the Explanation provides that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and that the officer making it shall be deemed to be the complainant. The deeming is necessary because a non-cognizable case cannot proceed on a police report in the ordinary way.

Section 2(14): "order" means the formal expression of any decision of a civil court which is not a decree.

The relation between the three

The judgment carries the reasons. The decree carries the result. An order is defined by what it is not.

That single line answers most questions on this group. A judgment explains why; a decree is the formal document drawn up afterwards recording what follows; and anything a civil court formally decides is either a decree or, if it is not a decree, an order.

What a judgment must contain

Order XX rule 4(2) requires a judgment of a court other than a Court of Small Causes to contain a concise statement of the case, the points for determination, the decision on those points, and the reasons for the decision. Rule 5 requires the court to state its finding or decision, with the reasons, on each separate issue.

The last requirement is the one worth remembering: reasons on each issue. A judgment that decides the suit without dealing with an issue that was framed is defective, and that is a ground of appeal.

Appeal

What it is

An appeal is the removal of a case from an inferior to a superior court for the purpose of testing the soundness of the decision. It is a continuation of the suit, not a new proceeding, and it is a creature of statute: there is no inherent right of appeal, so an appeal lies only where some law gives it.

First appeal

Section 96(1): save where otherwise expressly provided in the Code or by any other law, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from its decisions.

Three limits sit in the rest of the section. Section 96(2): an appeal may lie from an original decree passed ex parte. Section 96(3): no appeal shall lie from a decree passed with the consent of parties. Section 96(4): no appeal shall lie, except on a question of law, from a decree in a suit of the nature cognisable by Courts of Small Causes where the value of the subject matter does not exceed ten thousand rupees.

A first appeal is on both facts and law. The appellate court can reappraise the evidence and reach a different conclusion on the facts. Order XLI is the procedure.

Second appeal

Section 100(1): save as otherwise expressly provided in the Code or any other law, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

Two consequences follow, and both are examinable. A second appeal is not available on facts, so concurrent findings of fact by the trial court and the first appellate court are ordinarily final. And the High Court must formulate the substantial question of law, and the appeal is heard on the question so formulated.

Appeals higher up

Appeals from orders lie under section 104 and Order XLIII, and only from the orders those provisions list. Appeals to the Supreme Court lie under articles 132, 133 and 134 of the Constitution with a certificate from the High Court, and under article 136 the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal, which is a discretionary power and not a right of appeal at all.

Review

What it is

A review is an application to the same court, by a person aggrieved, asking it to reconsider its own decree or order.

Section 114: subject as aforesaid, any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

The grounds

Section 114 gives the right; Order XLVII rule 1 gives the grounds. A person within one of the three categories above may apply for review where one of these is satisfied:

One, discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made. Note the two conditions: the material must be new AND important, and due diligence must have been exercised. A party who simply forgot to lead the evidence fails.

Two, some mistake or error apparent on the face of the record. This means an error that is self-evident and does not need a long argument to establish. A wrong section number, an arithmetical slip, a decision given in ignorance of a binding provision. It does not mean an error that has to be demonstrated by reasoning, because that is what an appeal is for.

Three, any other sufficient reason, which the courts read as a reason analogous to the first two rather than as an open door.

Revision

What it is

A revision is the High Court's supervisory check on whether a subordinate court kept within its jurisdiction.

Section 115(1): the High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it, and if the subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

A proviso, inserted in 1999, restricts it further: the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or proceeding. Section 115(2) bars revision where an appeal lies to the High Court or to a court subordinate to it, and section 115(3) provides that a revision does not operate as a stay unless the High Court so orders.

The three grounds are all about jurisdiction

This is the whole point of revision and it is where answers go wrong. The High Court in revision is not asking whether the decision was right. It is asking whether the subordinate court had the authority to decide, whether it refused to use authority it had, or whether it used its authority illegally or with material irregularity.

A subordinate court that has jurisdiction and reaches a conclusion the High Court thinks wrong has not committed a jurisdictional error. That is a matter for appeal, where one lies, and if none lies the decision ordinarily stands.

Alongside section 115 sits article 227 of the Constitution, which gives every High Court superintendence over all courts and tribunals throughout the territories over which it exercises jurisdiction. It is wider than section 115 and is exercised sparingly.

Reference

What it is

A reference is the subordinate court's own act. It does not involve a party going upstairs; the court itself sends a question to the High Court because it is unsure of the answer.

Section 113: subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

The proviso is the important half. Where a court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision in one, the determination of which is necessary for the disposal of the case, and is of opinion that the provision is invalid or inoperative but it has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the court shall state a case setting out its opinion and the reasons, and refer it for the opinion of the High Court.

That is a rule of judicial discipline. A subordinate court may not simply declare a statute invalid; it must refer the question up.

Order XLVI sets out the procedure: the court states the facts, the point on which doubt is entertained and its own opinion on the point, and may either stay the proceedings or proceed and postpone the decree or order.

A worked example

The court of a Civil Judge, Junior Division, at Kalyan decides a suit for possession in favour of Manoj against Farida.

Farida thinks the judge misread the evidence. That is a challenge on the facts. Her remedy is a first appeal under section 96 to the District Court, which can look at the evidence afresh.

The District Court dismisses her appeal and she still says both courts were wrong on the facts. She has no further remedy on the facts: section 100 allows a second appeal to the High Court only if the case involves a substantial question of law.

Instead, after the trial court's decree, Farida finds the registered sale deed of 1998 in her late father's papers. It was not within her knowledge, she could not have produced it despite due diligence, and it is important. Her remedy is a review to the very court that passed the decree, under section 114 read with Order XLVII rule 1, first ground.

Suppose instead the trial court had passed an order on an interlocutory application, no appeal lay from it, and the court had decided a matter that lay outside its pecuniary jurisdiction altogether. That is not "wrong", it is jurisdictional. The remedy is a revision to the High Court under section 115(1)(a), and, because of the 1999 proviso, only if an order the other way would have finally disposed of the suit.

Now suppose that during the trial Farida had argued that the State Act under which Manoj claimed was itself invalid, and the judge agreed but found no ruling of the High Court or the Supreme Court saying so. The judge cannot declare the Act invalid. Under the proviso to section 113 he must state a case and make a reference to the High Court for its opinion.

Four different faults, four different remedies. That is the map.

Distinctions table

What these words do NOT mean

A judgment is not a decree. The judgment gives reasons; the decree follows from it and is drawn up separately. Limitation for an appeal runs by reference to the decree.

A review is not an appeal to the same court. The grounds are narrow. A party who simply disagrees with the reasoning has no ground of review, and saying "the court was wrong" is not "an error apparent on the face of the record".

A revision is not a second appeal. The High Court in revision does not ask whether the decision was correct; it asks whether the court kept within its jurisdiction.

A reference is not a remedy of a party. No litigant "files a reference". The court states the case.

An appeal is not available as of right against everything. It is a creature of statute: no provision, no appeal. That is why section 104 and Order XLIII list the orders that are appealable, and everything not listed is not.

Limits and criticism

The 1999 proviso to section 115 narrowed revision sharply. It was intended to stop interlocutory orders being carried to the High Court and delaying trials; the criticism is that a party facing a plainly jurisdictional error in an interlocutory order may now be left with only article 227, which is discretionary.

"Error apparent on the face of the record" resists definition, and courts have said that no exhaustive definition is possible. The working test is whether the error can be seen without an elaborate argument.

Second appeals are frequently entertained on questions dressed up as questions of law. Section 100 requires a substantial question of law and requires it to be formulated, and the requirement is not always observed.

Quick revision

Judgment: CPC s.2(9), the statement by the Judge of the grounds of a decree or order. Decree, s.2(2). Order, s.2(14), anything formally decided that is not a decree. Order XX rr.4 and 5: concise statement of the case, points for determination, the decision, and reasons on each issue.

Appeal: a creature of statute, a continuation of the suit. First appeal, s.96, on facts and law; no appeal from a consent decree, s.96(3). Second appeal, s.100, only on a substantial question of law, which must be formulated. Appeals from orders, s.104 and Order XLIII. Special leave, article 136.

Review: s.114 and Order XLVII r.1. Same court. Grounds: new and important evidence not available despite due diligence; error apparent on the face of the record; any other sufficient reason.

Revision: s.115. High Court, where no appeal lies to it. Three jurisdictional grounds: jurisdiction not vested, jurisdiction not exercised, jurisdiction exercised illegally or with material irregularity. 1999 proviso: only where the order the other way would have finally disposed of the suit. Article 227 sits alongside.

Reference: s.113 and Order XLVI. The court refers, not a party. Mandatory under the proviso where the court thinks an Act invalid and no High Court or Supreme Court ruling says so.

Test yourself

1. Define judgment, decree and order, and state the relation between them.

Section 2(9) of the Code of Civil Procedure 1908 defines a judgment as the statement given by the Judge of the grounds of a decree or order. Section 2(2) defines a decree as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties as to all or any of the matters in controversy in the suit, and it may be preliminary or final. Section 2(14) defines an order as the formal expression of any decision of a civil court which is not a decree. The judgment carries the reasons, the decree carries the result, and an order is the residue: whatever a civil court formally decides is one or the other.

2. Distinguish review from revision.

A review under section 114 and Order XLVII rule 1 is heard by the same court that passed the decree, at the instance of an aggrieved party, on three narrow grounds: new and important evidence that could not be produced despite due diligence, an error apparent on the face of the record, or any other sufficient reason. A revision under section 115 is heard by the High Court over a subordinate court whose decision is not appealable to it, and only on jurisdictional grounds: that the court exercised a jurisdiction not vested in it, failed to exercise one that was, or acted illegally or with material irregularity in the exercise of jurisdiction. Review reconsiders the decision; revision examines the authority to decide.

3. When does a second appeal lie, and what cannot be argued in it?

Under section 100 a second appeal lies to the High Court from every decree passed in appeal by a subordinate court only if the High Court is satisfied that the case involves a substantial question of law, and the High Court must formulate that question. What cannot be argued is the facts: concurrent findings of fact by the trial court and the first appellate court are ordinarily final, and re-appreciation of evidence is not open in a second appeal.

4. What is a reference, and when is a court bound to make one?

A reference under section 113 is the act of the court itself, which states a case and refers a question for the opinion of the High Court, the High Court then making such order as it thinks fit. Under the proviso the court is bound to refer where a case before it involves a question as to the validity of an Act, Ordinance or Regulation or of a provision in one, the determination of which is necessary to dispose of the case, and the court is of opinion that the provision is invalid or inoperative although no such declaration has been made by the High Court to which it is subordinate or by the Supreme Court.

5. Is there a right of appeal against every decision of a civil court?

No. An appeal is a creature of statute and exists only where a law gives it. Section 96 gives an appeal from a decree of a court of original jurisdiction, subject to exceptions such as a consent decree under section 96(3). Against orders, an appeal lies only from those listed in section 104 and Order XLIII; every other order is not appealable, and the party's remedy, if any, is a revision under section 115 or the High Court's power of superintendence under article 227.

6. Give two examples of an "error apparent on the face of the record" and one that is not.

An arithmetical mistake in computing the decretal amount, and a decision reached in ignorance of a statutory provision that plainly governs the case, are errors apparent on the face of the record because they can be seen at once without argument. A finding that the plaintiff's witness was more credible than the defendant's is not, however wrong a party thinks it is, because establishing the error would need a re-examination of the evidence, and that is the office of an appeal rather than of a review.

Article 32(4): the right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution.

Notice what article 32 is. It is itself a fundamental right, sitting inside Part III, and the remedy is available only for the enforcement of a Part III right. That is its limit and it is examinable.

Article 226

Article 226(1): notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Article 226(2) extends the power to a High Court within whose territories the cause of action wholly or in part arises, even if the authority is outside them.

"And for any other purpose" is the difference. The High Court's writ jurisdiction is wider than the Supreme Court's under article 32: it covers not merely fundamental rights but legal rights generally. A person whose statutory right has been infringed by a public authority can move the High Court under article 226 and cannot move the Supreme Court under article 32.

The five writs

Habeas corpus, "you may have the body". Issued to a person detaining another, requiring them to produce the detained person before the court and justify the detention. If the detention is unlawful the court orders release. It is the writ that protects personal liberty, and it lies against a private person as well as against the State. It is the writ behind the whole subject matter of [D.K. Basu v. State of West Bengal].

Mandamus, "we command". Issued to a public authority, or to an inferior court or tribunal, commanding it to perform a public duty it has refused or failed to perform. It does not lie to compel a private person to perform a private contract, and it does not lie to compel a discretionary act to be done in a particular way, though it does lie to compel the discretion to be exercised at all.

Prohibition, issued by a superior court to an inferior court or tribunal forbidding it to continue proceedings in excess of its jurisdiction. It is preventive and it operates while the proceeding is still pending.

Certiorari, "to be certified". Issued by a superior court to an inferior court or tribunal to quash an order already made, on the ground of want or excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record. It is curative and it operates after the decision.

Quo warranto, "by what authority". Issued against a person holding a public office, requiring them to show by what authority they hold it. If the answer is that they were never validly appointed, the court ousts them. The office must be a public office of a substantive character created by statute or by the Constitution.

Prohibition and certiorari go together and the difference is one line: prohibition stops a proceeding before the order, certiorari quashes it after.

Stay order

What it is

A stay order is an order suspending, for the time being, a proceeding or the operation of a decision.

There is no single section headed "stay order", which is exactly why students find it slippery. What exist are several powers scattered through the codes, and a stay is the exercise of one of them.

Where the power comes from

Section 10 of the Code of Civil Procedure 1908 requires a court not to proceed with the trial of a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. That is a stay of the later suit.

Order XLI rule 5 provides that an appeal shall not of itself operate as a stay of proceedings under the decree appealed from, nor as a stay of execution, but that the appellate court may for sufficient cause order a stay of execution.

The first half of that rule is the part that is asked. Filing an appeal does not by itself stop the decree from being executed. The appellant must apply for and obtain a stay. Students very often assume the opposite.

Section 151, the court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court, is the residual source where no specific provision fits.

In writ proceedings, a High Court under article 226 or the Supreme Court under article 32 can and constantly does stay the operation of the order under challenge while the petition is heard.

Injunction

What it is

An injunction is a specific order of a court directing a person to do a particular act, or to refrain from doing one.

Section 36 of the Specific Relief Act 1963: preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Temporary and perpetual

Section 37(1): temporary injunctions are such as are to continue until a specified time, or until the further order of the court; they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure 1908.

Section 37(2): a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

So the difference is when it is granted and how long it lasts. A temporary injunction is interlocutory, granted on an application during the suit, and lasts until a date or until further order. A perpetual injunction is part of the final decree, granted after the case has been decided on the merits, and lasts indefinitely.

Section 38 sets out when a perpetual injunction may be granted: to prevent the breach of an obligation existing in favour of the plaintiff, expressly or by implication; and, where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, in the cases the section lists.

Prohibitory and mandatory

A prohibitory injunction tells the defendant not to do something: not to build, not to publish, not to transfer.

A mandatory injunction tells the defendant to do something, usually to undo what has already been done: to pull down the wall. Section 39 governs it, and it is granted more sparingly, because compelling positive action is a heavier interference than restraining it.

The Code's side of it

Order XXXIX rule 1 lists the cases in which a temporary injunction may be granted, where it is proved by affidavit or otherwise that property in dispute is in danger of being wasted, damaged or alienated by a party or wrongfully sold in execution; that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors; or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to property in dispute.

Order XXXIX rule 2 allows an injunction to restrain a breach of contract or other injury. Rule 2A provides the consequence of disobedience: attachment of property and detention in civil prison.

Beyond the words of the rules, a court granting a temporary injunction applies three settled requirements, and an answer should name all three: a prima facie case, meaning a serious question to be tried; the balance of convenience lying in favour of the applicant; and irreparable injury that could not be compensated in money.

When an injunction cannot be granted

Section 41 of the Specific Relief Act lists the cases in which an injunction cannot be granted. They include restraining a person from prosecuting a pending judicial proceeding, unless to prevent multiplicity of proceedings; restraining a person from instituting or prosecuting a proceeding in a court not subordinate to that from which the injunction is sought; restraining a person from applying to a legislative body; restraining proceedings in a criminal matter; preventing the breach of a contract the performance of which would not be specifically enforced; preventing a continuing breach in which the plaintiff has acquiesced; and where equally efficacious relief can certainly be obtained by any other usual mode of proceeding.

Adjournment

What it is

An adjournment is the postponement of a hearing to a later date.

The civil rule

Order XVII rule 1(1): the court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing. There is a proviso, inserted by the amendment of 1999 and brought into force in 2002: no such adjournment shall be granted more than three times to a party during the hearing of the suit.

Rule 1(2) requires the court, in every such case, to fix a day for the further hearing and to make such orders as to the costs occasioned by the adjournment, or such higher costs as the court deems fit. A proviso requires that once the hearing has commenced it shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds, for exceptional reasons recorded, that an adjournment is necessary.

Two things there are asked directly: sufficient cause, reasons in writing, and a cap of three adjournments per party; and costs, because the point of costs is that delay should be paid for by the party who causes it.

The criminal rule

Section 346(1) of the Bharatiya Nagarik Suraksha Sanhita 2023 states the same principle for a criminal case: in every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment beyond the following day to be necessary for reasons to be recorded. For the sexual offences it lists, the inquiry or trial must be completed within two months from the date of filing of the chargesheet.

A worked example

A builder starts putting up a compound wall that will block the only access to Rehana's shop in Mumbai. She sues for a declaration and a mandatory injunction.

Before the suit is decided she needs the building stopped. She applies under Order XXXIX rules 1 and 2 for a temporary injunction, supported by an affidavit. The court asks the three questions: is there a prima facie case, that is, a serious question to be tried about her right of access; where does the balance of convenience lie, weighing the builder's loss from stopping against her loss from being walled in; and would damages be an adequate remedy, or is the injury irreparable. If she succeeds the injunction runs until further order under section 37(1).

At the end of the suit, if she wins, the decree can carry a perpetual injunction under section 37(2) restraining the builder permanently, and a mandatory injunction under section 39 requiring the wall already built to be pulled down.

Suppose instead the builder is a municipal corporation acting under a statutory power, and Rehana says the sanction was granted without hearing her. Now she is complaining of a public authority's breach of a legal duty, so the remedy is a writ petition under article 226, in which she may seek certiorari to quash the sanction and mandamus to compel the corporation to decide afresh after hearing her, and she will ask for a stay of the sanction while the petition is pending.

And if the corporation, having lost, appeals, Rehana should note that under Order XLI rule 5 the appeal does not by itself stay the decree in her favour, and the corporation must apply for a stay.

Meanwhile the builder's advocate seeks time on three successive dates. Order XVII rule 1 lets the court grant time only on sufficient cause, for reasons recorded, not more than three times to that party, and with costs.

Distinctions table

What these words do NOT mean

A stay is not an injunction. A stay operates on a proceeding or on the effect of an order; an injunction operates on a person and tells them what to do or not to do. Breach of an injunction is punishable under Order XXXIX rule 2A.

Filing an appeal does not stay the decree. Order XLI rule 5 says so in terms. A stay must be applied for and obtained.

Article 32 is not as wide as article 226. Article 32 is available only to enforce a fundamental right; article 226 is available for that "and for any other purpose".

A writ does not lie against a purely private body in the ordinary case. Whether the respondent is "the State" or a public authority is the threshold question, and it takes you back to [Fact, Person, Offence and State].

An adjournment is not a right. It requires sufficient cause and reasons in writing, it is capped at three per party under the proviso to Order XVII rule 1, and it carries costs.

Limits and criticism

The three-adjournment cap is widely ignored in practice, and that gap between the rule and the reality is the standard criticism of Order XVII rule 1. The provision is mandatory in form; the enforcement is not.

The writ jurisdiction is discretionary. Even where a right has been infringed, a court may decline relief because of delay, because an alternative remedy exists, or because the petitioner has suppressed material facts. A student who writes that a writ "must" issue once a violation is shown has overstated it.

Injunctions are equally discretionary, and section 41 lists a long series of cases in which one cannot be granted at all, so the existence of a right does not guarantee this particular remedy.

Quick revision

Writ: articles 32 and 226. Five writs, all "in the nature of": habeas corpus, produce the detained person; mandamus, command performance of a public duty; prohibition, forbid an inferior court from proceeding; certiorari, quash its order; quo warranto, question the holding of a public office. Article 32 is itself a fundamental right and is confined to Part III. Article 226 adds "and for any other purpose" and so is wider. Article 227 is superintendence, not a writ.

Stay order: no single provision. CPC s.10, Order XLI r.5 (an appeal is not of itself a stay), s.151, and the writ courts' power. Suspends a proceeding or the operation of an order.

Injunction: Specific Relief Act 1963, s.36 discretion, s.37 temporary and perpetual, s.38 when perpetual is granted, s.39 mandatory, s.41 when it cannot be granted. CPC Order XXXIX rr.1, 2 and 2A. Three requirements: prima facie case, balance of convenience, irreparable injury.

Adjournment: CPC Order XVII r.1, sufficient cause, reasons in writing, not more than three times to a party, costs; day-to-day hearing once commenced. BNSS s.346 for criminal trials.

Test yourself

1. Name the five writs and give the function of each in one line.

Habeas corpus, requiring a detained person to be produced and the detention justified, failing which release follows. Mandamus, commanding a public authority or inferior tribunal to perform a public duty it has failed to perform. Prohibition, forbidding an inferior court or tribunal to continue a proceeding in excess of its jurisdiction. Certiorari, quashing an order already made by an inferior court or tribunal for want or excess of jurisdiction, breach of natural justice, or error of law apparent on the record. Quo warranto, requiring a person holding a public office to show by what authority he holds it.

2. How does article 226 differ from article 32?

Article 32 is itself a fundamental right and is confined to the enforcement of the rights in Part III, and it is exercisable by the Supreme Court. Article 226 is exercisable by every High Court within its territories, and it extends to the enforcement of Part III rights "and for any other purpose", so it covers ordinary legal and statutory rights as well. Article 226(2) further allows a High Court to act where the cause of action arises wholly or in part within its territories even though the authority is outside them.

3. Distinguish prohibition from certiorari.

Both are issued by a superior court to an inferior court or tribunal, and the difference is one of timing and effect. Prohibition is preventive: it is issued while the proceeding is still pending and forbids the inferior body from continuing beyond its jurisdiction. Certiorari is curative: it is issued after an order has been made and quashes it, on the ground of want or excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record.

4. Distinguish a temporary from a perpetual injunction.

Under section 37(1) of the Specific Relief Act 1963, a temporary injunction continues until a specified time or until the further order of the court, may be granted at any stage of a suit, and is regulated by the Code of Civil Procedure 1908, in particular Order XXXIX. Under section 37(2), a perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and it perpetually restrains the defendant from asserting a right or committing an act contrary to the plaintiff's rights.

5. Does filing an appeal automatically stay execution of the decree?

No. Order XLI rule 5 of the Code of Civil Procedure 1908 provides that an appeal shall not of itself operate as a stay of proceedings under the decree appealed from, nor as a stay of execution; the appellate court may order a stay for sufficient cause, on an application. Until such an order is made the decree-holder may proceed to execute.

6. What must a plaintiff show to obtain a temporary injunction, and what does the court also consider?

Beyond bringing the case within Order XXXIX rules 1 or 2, the plaintiff must show a prima facie case, that is, a serious question to be tried, not a case certain to succeed; that the balance of convenience lies in favour of granting the injunction, weighing the harm to each side; and that refusal would cause irreparable injury, meaning injury that could not adequately be compensated in money. The court also remembers that under section 36 of the Specific Relief Act 1963 preventive relief is granted at its discretion, and that section 41 lists cases in which an injunction cannot be granted at all.

For a suit on a loan: that money was lent, on what terms, that repayment fell due, and that it was not repaid. Those four facts are the cause of action. The plaintiff's motive for lending, the borrower's reputation, and the fact that the plaintiff has a copy of the cheque, are not.

The three things it decides

Whether the plaint survives at all. No cause of action, and Order VII rule 11(a) requires rejection. The court looks at the plaint alone, taking its statements as true.

Where the suit can be filed. Section 20(c) makes the place where the cause of action arose, wholly or in part, a court of competent jurisdiction. This is dealt with in [International Law, Arbitration, Jurisdiction and Amicus Curiae].

When limitation starts to run. That is why Order VII rule 1(e) requires the plaint to say when the cause of action arose, and not merely what it was.

One suit, one cause of action

Order II rule 2(1): every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Rule 2(2): if the plaintiff omits to sue for, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue for the portion so omitted or relinquished. Rule 2(3): a person entitled to more than one relief in respect of the same cause of action may sue for all or any of them, but if he omits to sue for a relief without the leave of the court, he shall not afterwards sue for it.

The rule exists to stop a defendant being harassed by a series of suits on one grievance. A plaintiff who has lent money and also been assaulted has two causes of action and may bring two suits; a plaintiff who has lent money and sues only for the principal, forgetting the interest, has split one cause of action and will be shut out.

Issue

What it is

An issue is a disputed point of fact or of law which the court formally frames, and on which the parties then lead evidence and argue.

Order XIV rule 1(1): issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Rule 1(2): material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue, or a defendant must allege in order to constitute his defence. Rule 1(3): each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

How issues are framed

Rule 3 tells the court where to look: the allegations made on oath by the parties or by persons present on their behalf, the allegations in the pleadings, and the contents of documents produced by either party. Rule 2 requires the court, where issues of both law and fact arise in the same suit, ordinarily to pronounce judgment on all issues.

Why they matter so much

Because from the day issues are framed, the case has a shape. Evidence is led on the issues and on nothing else. A finding must be given on each issue, which Order XX rule 5 requires. And an appeal is argued issue by issue.

Three kinds are worth naming. Issues of fact, which need evidence. Issues of law, which do not, and which can sometimes dispose of the suit by themselves. And a preliminary issue, which under Order XIV rule 2(2) the court may try first where it can dispose of the case and relates to the jurisdiction of the court or to a bar to the suit created by any law.

Charge

What it is

A charge is the precise written accusation informing the accused of exactly what he is alleged to have done, so that he can prepare his defence.

Section 2(1)(f) of the Sanhita is a partial definition: "charge" includes any head of charge when the charge contains more heads than one.

What a charge must state

Section 234(1): every charge shall state the offence with which the accused is charged. Section 234(2): if the law creating the offence gives it a specific name, the offence may be described in the charge by that name only. Section 234(3): if the law gives it no specific name, so much of the definition of the offence must be stated as gives the accused notice of the matter with which he is charged. Section 234 also requires the law and the section to be mentioned, and states that the fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled.

Section 235(1): the charge shall contain such particulars as to the time and place of the alleged offence, and the person, if any, against whom, or the thing, if any, in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

Where those particulars do not give sufficient notice, section 236 requires the charge to state the manner in which the alleged offence was committed.

Who frames it, and when

In a sessions trial, section 251(1): if after considering the record and hearing both sides the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he frames a charge. If he thinks there is no sufficient ground he discharges the accused instead, which is [Ex Parte, Discharge, Acquittal and Conviction].

In a warrant case tried by a Magistrate, the charge is framed under section 263 if the Magistrate is of opinion that there is ground for presuming.

In a summons case there is no formal charge at all: section 274 provides that when the accused appears, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence.

Alteration, and errors

Section 239 allows any court to alter or add to any charge at any time before judgment is pronounced, and requires the altered or added charge to be read and explained to the accused.

The governing idea behind all of this is notice. An error in the charge does not by itself vitiate a conviction unless the accused was in fact misled and a failure of justice has been occasioned.

Bail

The definitions

The Sanhita defines the whole family of terms, which the old Code did not.

Section 2(1)(b): "bail" means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or a bail bond.

Section 2(1)(d): "bail bond" means an undertaking for release with surety.

Section 2(1)(e): "bond" means a personal bond or an undertaking for release without surety.

Section 2(1)(c): "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.

That last definition is the one everything turns on, and it is worth reading twice. Non-bailable is defined as the residue: everything not shown as bailable. It does not mean bail cannot be granted.

Bailable offences

Section 478(1): when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared to give bail, that person shall be released on bail.

The word is "shall". In a bailable offence bail is a right, and the officer or the court has no discretion to refuse it, though conditions as to the bond may be imposed.

Non-bailable offences

Section 480(1): when a person accused of or suspected of a non-bailable offence is arrested or detained without warrant, or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, subject to the restrictions the section then sets out, which include that a person shall not be released if there appear reasonable grounds for believing he has been guilty of an offence punishable with death or imprisonment for life.

So in a non-bailable offence bail is a matter of judicial discretion. Section 483 gives the High Court and the Court of Session a wider special power to direct release on bail.

Anticipatory bail

Section 482(1): when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that court may, if it thinks fit, direct that in the event of arrest he shall be released on bail.

Note the two limits in that sentence. It is available only for a non-bailable offence, since there is no need for it otherwise, and only from the High Court or the Court of Session.

The undertrial provision

Section 479(1) is new in its present form and it matters. Where a person has, during investigation, inquiry or trial, undergone detention for up to one half of the maximum period of imprisonment specified for that offence, other than an offence for which death or imprisonment for life is one of the punishments, he shall be released by the court on bond. There is a proviso reducing the period to one third for a first-time offender who has never been convicted.

A worked example

Two proceedings again, and the same four words in each.

Civil. Arjun lent Bhavna four lakh rupees on 1 March 2023, repayable in one year, and she has not repaid. His cause of action is: the loan, the terms, the due date of 1 March 2024, and the failure to repay. His plaint must state those facts and the date, under Order VII rule 1(e). He must include the whole claim, principal and interest, in the one suit, or Order II rule 2 will shut him out of a second. He may sue where Bhavna resides under section 20(a) or where the cause of action arose in whole or in part under section 20(c). Bhavna's written statement admits the loan and says she repaid in cash. The court then frames the issues under Order XIV rule 1: whether the plaintiff proves the loan; whether the defendant proves repayment; what relief. Evidence is led on those three and nothing else, and Order XX rule 5 requires a finding on each.

Criminal. Bhavna alleges that when Arjun came to demand the money he assaulted her. Arjun is arrested. Whether he must be released depends on the classification of the offence: if it is shown as bailable in the First Schedule, section 478 makes his release on bail a right once he is prepared to give bail. If it is non-bailable, section 480 makes it discretionary. If Arjun fears arrest before it happens, section 482 allows him to apply to the Court of Session or the High Court for anticipatory bail, but only because the offence is non-bailable. When the case reaches the stage of trial, the court frames a charge under section 251 or section 263, stating the offence, and under section 235 giving the time, the place and the person against whom it was committed, so that Arjun knows precisely what he has to meet.

Distinctions table

What these words do NOT mean

A cause of action is not the section you sue under. It is the facts. Naming the wrong section is curable; pleading no facts is not.

"No cause of action" does not mean "a weak case". Order VII rule 11(a) is decided on the plaint alone, assuming its statements to be true.

An issue is not a question the parties argue about generally. It arises only where a material proposition is affirmed by one and denied by the other. An admitted fact generates no issue.

A charge is not a conviction, and it is not an opinion that the accused is guilty. Section 251 speaks of "ground for presuming", which is a far lower threshold than proof.

Non-bailable does not mean bail cannot be granted. It means bail is not a right and is left to the court's discretion under section 480, and to the wider powers in section 483.

Bail is not an acquittal. It is release from custody on conditions while the case continues.

Limits and criticism

Order II rule 2 is severe. A plaintiff who innocently omits part of a claim loses it forever, and the rule is defended on the ground that a defendant should face one suit and not five.

The framing of issues is often mechanical, with issues copied from the pleadings without thought, and that produces trials in which evidence is led on things nobody disputes.

Section 479 is a real reform on paper. Whether an undertrial who has served half the maximum sentence is actually released depends on somebody in the prison system counting the days and moving the court, and that is where the provision has historically failed.

Quick revision

Cause of action: the bundle of facts the plaintiff must prove. Not defined in the Code. Order VII r.1(e), state the facts and when they arose; Order VII r.11(a), plaint rejected if none disclosed; s.20(c), place of suing. Order II r.2, include the whole claim or lose the rest.

Issue: Order XIV r.1. Arises where a material proposition of fact or law is affirmed by one party and denied by the other. Framed from pleadings, documents and examination. Order XIV r.2(2), preliminary issue on jurisdiction or a statutory bar. Order XX r.5, a finding on each issue.

Charge: BNSS ss.234 to 239. States the offence, the law and section, the time, place, person or thing, and, where needed, the manner. Framed on "ground for presuming", s.251 in a sessions trial and s.263 in a warrant case; no charge in a summons case, s.274. Alterable at any time before judgment, s.239.

Bail: BNSS s.2(1)(b) release on conditions on a bond or bail bond; s.2(1)(d) bail bond, with surety; s.2(1)(e) bond, without surety; s.2(1)(c) bailable offence is one shown as bailable in the First Schedule, non-bailable is the residue. s.478, bail as of right in a bailable offence. s.480, discretion in a non-bailable one. s.482, anticipatory bail from the High Court or Court of Session. s.479, release of an undertrial who has served half the maximum period.

Test yourself

1. What is a cause of action, and what three questions does it decide?

It is the bundle of essential facts a plaintiff must prove to obtain the relief claimed, not the provision relied on and not the evidence. It decides whether the plaint survives, because Order VII rule 11(a) requires rejection where none is disclosed; where the suit may be filed, because section 20(c) confers jurisdiction on the court within whose limits the cause of action arose wholly or in part; and when limitation began to run, which is why Order VII rule 1(e) requires the plaint to state when it arose.

2. When does an issue arise, and why does it matter that it is framed?

Under Order XIV rule 1(1) an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other, a material proposition being one the plaintiff must allege to show a right to sue or the defendant must allege to constitute his defence. It matters because evidence is led on the issues and on nothing else, because Order XX rule 5 requires the court to give a finding with reasons on each issue, and because an appeal proceeds issue by issue.

3. What must a charge contain?

Under section 234 it must state the offence; if the law gives the offence a specific name the charge may use that name alone, and if not, so much of the definition as gives the accused notice; and it must mention the law and section. Under section 235 it must give such particulars as to the time and place of the offence and the person or thing concerned as are reasonably sufficient to give the accused notice. Under section 236, where those particulars do not give sufficient notice, it must state the manner in which the offence was committed. The whole purpose is notice, so that the accused can prepare a defence.

4. Distinguish a bailable from a non-bailable offence, and state the practical consequence.

Section 2(1)(c) of the Bharatiya Nagarik Suraksha Sanhita 2023 defines a bailable offence as one shown as bailable in the First Schedule or made bailable by any other law in force, and a non-bailable offence as any other offence, so the second class is defined as the residue. The consequence is that in a bailable offence section 478 makes release on bail a right once the person is prepared to give bail, while in a non-bailable offence section 480 makes it a matter for the discretion of the court, with wider powers in the High Court and the Court of Session under section 483.

5. What is anticipatory bail and who may grant it?

Under section 482, a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence may apply to the High Court or the Court of Session for a direction that in the event of arrest he shall be released on bail. It is available only in respect of a non-bailable offence, because in a bailable one release is already a right, and it may be granted only by those two courts and not by a Magistrate.

6. A plaintiff lends money and sues only for the principal, forgetting to claim interest. Can he sue later for the interest?

No. Order II rule 2 requires every suit to include the whole of the claim the plaintiff is entitled to make in respect of the cause of action, and provides that a plaintiff who omits to sue for or relinquishes any portion of his claim shall not afterwards sue for the portion omitted. Interest on the loan arises from the same cause of action as the principal, so the omission bars the later claim unless the court's leave was obtained under rule 2(3).

An ex parte decree is not a decree obtained by default alone

The plaintiff still has to prove his case. The court hears his evidence and decides on it. What is missing is the defence, not the proof.

Getting back in

Three routes, and a student should know all three.

Order IX rule 7, before the ex parte decree. Where the court has adjourned the hearing ex parte and the defendant appears at or before that hearing and assigns good cause for his previous non-appearance, he may, on such terms as to costs as the court directs, be heard in answer to the suit as if he had appeared on the day fixed.

Order IX rule 13, after the ex parte decree. The defendant may apply to the court that passed it to set it aside, and if he satisfies the court that the summons was not duly served, or that he was prevented by sufficient cause from appearing, the court shall set aside the decree on such terms as to costs or payment into court as it thinks fit and appoint a day for proceeding with the suit.

Section 96(2), an appeal. An appeal may lie from an original decree passed ex parte. So the defendant may either apply to set aside or appeal, and the choice matters because the grounds are different: rule 13 asks about service and sufficient cause, while an appeal attacks the decision on the merits.

The plaintiff's mirror image

If the defendant appears and the plaintiff does not, Order IX rule 8 requires the suit to be dismissed, unless the defendant admits the claim or part of it. Order IX rule 9(1) then bars a fresh suit on the same cause of action, though the plaintiff may apply to set the dismissal aside on showing sufficient cause. Rule 9(2) requires notice of that application to the opposite party.

Ex parte in the criminal law

The phrase is used less often, but the idea appears. Section 356 of the Sanhita provides for an inquiry, trial or judgment in the absence of a proclaimed offender who has absconded and where there is no immediate prospect of arresting him. That is new, and it is a considerable change: under the earlier Code a trial in absentia in that form did not exist.

Discharge

What it is

A discharge is an order releasing an accused from the proceedings before the prosecution evidence has been recorded, because the material does not disclose a case fit to be tried.

Where it happens

In a sessions trial, section 250. The accused may prefer an application for discharge within sixty days from the date of supply of copies of the documents under section 230, and if the Judge, on considering the record and hearing both sides, considers that there is not sufficient ground for proceeding against the accused, he shall discharge him and record reasons.

In a warrant case on a police report, section 262. Sub-section (1) allows the accused to apply for discharge within sixty days from the supply of copies. Sub-section (2) requires the Magistrate, on considering the police report and the documents, and after examining the accused if he thinks fit and hearing both sides, to discharge the accused if he considers the charge to be groundless, recording his reasons.

In a warrant case otherwise than on a police report, section 268(1). If, on taking all the evidence referred to in section 267, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, he shall discharge him.

The test

Notice the words: "not sufficient ground for proceeding", "groundless", "no case which, if unrebutted, would warrant conviction".

None of them asks whether the accused is innocent. The question is whether there is enough to put him on trial at all. That is why a discharge is not a verdict.

Acquittal

What it is

An acquittal is the court's finding, after the trial, that the prosecution has not proved the guilt of the accused beyond reasonable doubt.

Section 271(1): if, in a case in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

The same result follows at the end of a sessions trial under section 258, and in a summons case under section 275 and the sections around it.

What it means

It is a verdict on the merits. The court has heard the evidence and found it insufficient.

It does not mean the court believes the accused is innocent, though it may. It means guilt was not proved to the required standard. That standard, proof beyond reasonable doubt, is what makes an acquittal compatible with a suspicion of guilt.

It bars a second trial. Article 20(2) of the Constitution: no person shall be prosecuted and punished for the same offence more than once. Section 337 of the Sanhita gives the rule its statutory form: a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not, while the conviction or acquittal remains in force, be liable to be tried again for the same offence.

This bar is the doctrine of autrefois acquit and autrefois convict, French for "previously acquitted" and "previously convicted", and in the general law it is called double jeopardy. It also has an echo in the General Clauses Act, section 26 of which deals with an act punishable under two or more enactments and is worked in [The Miscellaneous Provisions of the General Clauses Act].

Conviction

What it is

A conviction is the court's finding that the accused is guilty of the offence charged, on proof beyond reasonable doubt.

Section 271(2): where the Magistrate finds the accused guilty and does not proceed under section 364 or section 401, he shall pass sentence upon him according to law.

Section 275: if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused, and may in his discretion convict him on it. The word "may" is deliberate: a court is not bound to convict on a plea of guilty, and a careful court will satisfy itself that the plea is understood and unqualified.

Conviction and sentence are two steps

The conviction is the finding of guilt. The sentence is the punishment that follows. Section 355 requires the accused to be heard on the question of sentence in the cases it covers, so that mitigating circumstances can be put before the court. Section 401 allows release on probation or after admonition instead of sentencing.

Keeping the two apart matters because an appeal may be against conviction, or against sentence, or against both.

A worked example

The civil half. Deepak sues Farhan for possession. The summons is served on Farhan personally on 4 January and he does not appear on the date fixed. The court, service being proved, orders the suit to be heard ex parte under Order IX rule 6(1)(a), hears Deepak's evidence and passes a decree. Farhan, who was in hospital, has three routes. If he comes to court on the adjourned ex parte hearing before the decree and shows good cause, Order IX rule 7 lets him in on terms. If the decree has already been passed, Order IX rule 13 lets him apply to set it aside on proof that he was prevented by sufficient cause. And under section 96(2) he may instead appeal against the ex parte decree on the merits.

The criminal half. Farhan is also prosecuted for criminal trespass on the same premises. Three different endings, and each has a different consequence.

If, at the stage of section 262, the Magistrate reads the police report and finds nothing in it that could amount to trespass, he discharges Farhan for reasons recorded. The prosecution is over for now, and if fresh material emerges the matter can be revived, because a discharge is not a verdict.

If the charge is framed, evidence is led, and the Magistrate finds that the prosecution has not proved that Farhan entered with intent to commit an offence, he records an acquittal under section 271(1). Now article 20(2) and section 337 bar a second trial for the same offence while that acquittal stands.

If the Magistrate finds the case proved, he records a conviction, hears Farhan on the question of sentence under section 355, and then passes sentence.

Distinctions table

What these words do NOT mean

Ex parte does not mean unfair or improper. It describes a hearing at which one side was absent, and the Code requires proof of due service before it is allowed.

An ex parte decree is not a decree without proof. The plaintiff must still prove his case; only the defence is missing.

A discharge is not an acquittal. This is the error to avoid. A discharge means there was not enough material to put the accused on trial; an acquittal means the trial was held and the case was not proved.

An acquittal is not a certificate of innocence, though it is often described as one. It is a finding that guilt was not proved beyond reasonable doubt.

A conviction is not a sentence. The conviction is the finding of guilt; the sentence is the punishment, imposed afterwards and, in the cases section 355 covers, only after hearing the accused on it.

Limits and criticism

Order IX rule 13 applications are a standing source of delay. A defendant who has genuinely been misled deserves relief, and the same provision can be used to reopen decrees years later. The safeguard is that the court sets terms as to costs and payment into court.

The discharge stage is criticised from both directions. Some say it is a real filter that spares people a trial they should never have faced; others say Magistrates rarely discharge, so the filter does not work and the sixty-day limits in sections 250 and 262 merely add a step.

Trial in absence of a proclaimed offender under section 356 is new and contested. It answers the problem of the accused who absconds indefinitely, and it sits uncomfortably with the principle that a person should be present at their own trial.

Quick revision

Ex parte: from one side only. Order IX r.6(1)(a), suit heard ex parte where service is proved and the defendant is absent; r.6(1)(b) and (c), second summons or postponement where service is not proved or was late. Remedies: r.7 before decree, r.13 after decree on proof of no service or sufficient cause, or appeal under s.96(2). Plaintiff absent: r.8 dismissal, r.9 bar on a fresh suit with power to set aside.

Discharge: before evidence. BNSS s.250 sessions, s.262 warrant case on police report, s.268 otherwise. Tests: no sufficient ground for proceeding; charge groundless; no case which if unrebutted would warrant conviction. Not a verdict, no bar to fresh proceedings.

Acquittal: after trial. BNSS s.271(1). Guilt not proved beyond reasonable doubt. Barred from re-trial by article 20(2) and BNSS s.337, autrefois acquit.

Conviction: finding of guilt. BNSS s.271(2); s.275 conviction on a plea of guilty, which is discretionary; s.355 hearing on sentence; s.401 probation or admonition. Conviction and sentence are separate steps.

Test yourself

1. When may a suit be heard ex parte, and what must the court do if service is not proved?

Under Order IX rule 6(1)(a) of the Code of Civil Procedure 1908, where the plaintiff appears and the defendant does not when the suit is called on, and it is proved that the summons was duly served, the court may order the suit to be heard ex parte. Where service is not proved, rule 6(1)(b) requires the court to direct a second summons to be issued and served; and where it was served but not in sufficient time to allow the defendant to appear and answer, rule 6(1)(c) requires the hearing to be postponed.

2. Distinguish a discharge from an acquittal.

A discharge is made before the prosecution evidence, at the charge stage, on the test whether there is sufficient ground for proceeding, whether the charge is groundless, or whether any case has been made out which if unrebutted would warrant conviction: sections 250, 262 and 268 of the Bharatiya Nagarik Suraksha Sanhita 2023. An acquittal comes after the trial, under section 271(1), on the finding that guilt has not been proved beyond reasonable doubt. A discharge is not a verdict and does not bar a fresh proceeding if better material emerges; an acquittal is a verdict and bars a second trial under article 20(2) and section 337.

3. What are the remedies of a defendant against whom an ex parte decree has been passed?

He may apply under Order IX rule 13 to the court that passed the decree to set it aside, and the court shall do so if satisfied that the summons was not duly served or that he was prevented by sufficient cause from appearing, on such terms as to costs or payment into court as it thinks fit. Alternatively he may appeal, because section 96(2) provides that an appeal may lie from an original decree passed ex parte. Before the decree is passed, Order IX rule 7 allows him to be heard on assigning good cause for his earlier non-appearance.

4. What does article 20(2) protect against, and what is its statutory counterpart?

Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once, which is the rule against double jeopardy and is expressed in the pleas of autrefois acquit and autrefois convict. Its statutory counterpart is section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023, under which a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not, while that conviction or acquittal remains in force, be liable to be tried again for the same offence.

5. Must a court convict an accused who pleads guilty?

No. Section 275 of the Sanhita provides that if the accused pleads guilty the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. The word is permissive, so the court retains a discretion, and it will ordinarily satisfy itself that the plea is unqualified, that the accused understands what he is admitting, and that the facts admitted amount in law to the offence charged.

6. Are conviction and sentence the same thing?

No. The conviction is the court's finding that the accused is guilty; the sentence is the punishment imposed afterwards. Section 271(2) requires the Magistrate who finds the accused guilty to pass sentence according to law unless he proceeds under section 364 or section 401, and section 355 requires the accused to be heard on the question of sentence in the cases it covers. The distinction matters because an appeal may be brought against the conviction, against the sentence, or against both.

An agnate is a person related to the deceased wholly through males; a cognate is a person related otherwise than wholly through males.

Section 9 provides that among the heirs in the Schedule, those in class I take simultaneously and to the exclusion of all others.

Section 10 sets out how the property is divided among class I heirs.

Class I

The class I heirs in the Schedule are: son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; and, added by the amendment of 2005, son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; and daughter of a pre-deceased daughter of a pre-deceased son.

Two points carry marks. The father is not a class I heir; he is the first entry in class II. And the amendment of 2005 added four female-line heirs to class I, which is part of the wider movement of that amendment towards equality between sons and daughters.

Section 15 sets out the corresponding scheme for a female Hindu dying intestate, and it is different in structure, which is itself a standing subject of criticism.

Legal representative

The definition

Section 2(11) of the Code of Civil Procedure 1908: "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

Three classes, and the second is the surprise

One, a person who in law represents the estate. In the ordinary case this is the heir or the executor or administrator under a will.

Two, any person who intermeddles with the estate. This is the limb students miss. A person who has no right to the property at all, but who takes possession of it, deals with it, collects its rents or disposes of it, becomes a legal representative by that conduct. In older language such a person is an executor de son tort, meaning an executor "of his own wrong". The purpose is protective: a person who has taken the dead man's property should not escape the dead man's liabilities by saying he was never an heir.

Three, where a party sued in a representative character dies, the person on whom the estate devolves.

So a legal representative may be an heir, and need not be. That is the whole distinction and it is asked directly.

Why the Code needs the concept

Because litigation outlives litigants.

Order XXII rule 1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Order XXII rule 3(1): where one of two or more plaintiffs dies and the right to sue does not survive to the survivors alone, or where a sole plaintiff dies and the right to sue survives, the court shall, on an application, cause the legal representative of the deceased to be made a party and shall proceed with the suit. Rule 3(2): where no application is made within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned.

Order XXII rule 4 is the mirror provision for the death of a defendant, and rule 4(2) allows the person so brought on record to make any defence appropriate to his character as legal representative.

Order XXII rule 9 provides that where a suit abates or is dismissed under the Order, no fresh suit shall be brought on the same cause of action, but the plaintiff may apply for an order to set aside the abatement or dismissal on showing sufficient cause.

Abatement means the suit dies. That is the practical consequence of failing to bring the legal representative on record in time, and it is why the concept matters.

The extent of liability

A legal representative is liable only to the extent of the property of the deceased that has come to their hands and has not been duly disposed of. They do not become personally liable for the deceased's debts out of their own pocket.

Power of attorney

The definition

Section 1A of the Powers-of-Attorney Act 1882: in this Act, "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.

Two words to know. The person who gives the authority is the donor or principal; the person who receives it is the donee, agent or attorney. Note that "attorney" here does not mean a lawyer.

What it does

Section 2: the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal where sealing is required, by the authority of the donor; and every such instrument or thing shall be as effectual in law as if it had been executed or done by the donee in the name and with the signature and seal of the donor.

That is the whole point: an act done by the donee within the authority binds the donor as if the donor had done it.

Section 4 allows a power of attorney to be deposited in the High Court, and a certified copy of a deposited instrument to be evidence of its contents.

General and special

A general power of attorney authorises the donee to act for the donor in a class of matters generally, such as the management of all the donor's property.

A special or specific power of attorney authorises a particular act, such as executing one sale deed of one flat, or appearing in one suit.

The distinction matters because the donee's authority is limited to what the instrument gives. An act outside the authority does not bind the donor.

In litigation

Order III rule 1 of the Code of Civil Procedure 1908: any appearance, application or act in or to any court required or authorised by law to be made or done by a party may, except where otherwise expressly provided, be made or done by the party in person, or by his recognised agent, or by a pleader on his behalf, with a proviso that the court may direct any appearance to be made by the party in person.

Order III rule 2(a): the recognised agents of parties include persons holding powers of attorney authorising them to make and do such appearances, applications and acts on behalf of the parties.

So a holder of a power of attorney may conduct a case for the party. There is a limit that is constantly missed: an attorney can do the acts of the party, but cannot give evidence about facts that were within the personal knowledge of the principal alone, because the attorney did not witness them.

Ending it

A power of attorney comes to an end on revocation by the donor, on renunciation by the donee, on the death or insolvency or insanity of either, on the completion of the business for which it was given, or on the expiry of any period fixed in it. A power coupled with an interest, meaning one given to secure an interest of the donee, is not revocable in the same way, so long as that interest subsists.

A note that saves students marks in a later subject: a "power of attorney sale", in which property is transferred by a general power of attorney with an agreement to sell and a will instead of a registered sale deed, does not convey title. Title in immovable property passes by a registered instrument of transfer, not by a power of attorney.

A worked example

Ramesh sues Suresh in 2024 for recovery of a plot in Nashik. Three things then happen.

Ramesh falls ill and cannot attend. He executes a special power of attorney in favour of his brother Girish, authorising him to appear, to instruct counsel and to sign applications in that suit. Under Order III rules 1 and 2(a), Girish is a recognised agent and may do those acts. He cannot, however, step into the witness box and depose to the negotiations of 2019 at which only Ramesh was present.

Suresh dies in 2025. Under Order XXII rule 1 the suit does not abate, because the right to sue for possession survives. Under Order XXII rule 4 Ramesh must apply to bring Suresh's legal representatives on record. Suresh left a widow and two daughters, who are his legal heirs under class I of the Schedule to the Hindu Succession Act 1956 read with sections 8 and 9. Suresh's nephew, who is not an heir at all, has moved into the plot and is collecting rent from a tenant. He too is a legal representative under section 2(11), because he has intermeddled with the estate, and he can be brought on record and made answerable to the extent of what has come to his hands.

Ramesh does not apply in time. Under Order XXII rule 3(2) and rule 4(3) the suit abates as against the deceased, and under rule 9 no fresh suit lies on the same cause of action, though Ramesh may apply to have the abatement set aside on showing sufficient cause.

Three concepts, one file, and each of them decides something concrete.

Distinctions table

What these words do NOT mean

A legal heir is not automatically the legal representative, and a legal representative is not necessarily an heir. Section 2(11) is wider on purpose.

"Intermeddler" is not an insult in the Code; it is a defined category, and it exists to protect creditors of the estate.

A power of attorney does not transfer ownership. It confers authority to act. A "power of attorney sale" of immovable property does not pass title.

An attorney under a power of attorney is not necessarily a lawyer, and holding the power does not entitle a person to plead as an advocate.

Abatement is not dismissal for default. A suit abates because a party died and nobody was substituted in time, and Order XXII rule 9 then bars a fresh suit on the same cause of action.

Limits and criticism

The intermeddler limb is easy to state and hard to prove. Establishing that a person dealt with the estate as their own often needs the very evidence the estate no longer has.

Section 15 of the Hindu Succession Act 1956, which governs succession to a female Hindu, is structured differently from section 8, and the difference has been criticised for decades as unequal treatment. The 2005 amendment addressed coparcenary rights and did not rewrite section 15.

Powers of attorney are widely misused in property dealings, and the practice of transferring immovable property by a general power of attorney with an agreement to sell has caused a great deal of litigation, precisely because a power of attorney is not a conveyance.

Quick revision

Legal heir: entitled by the applicable law of succession. Hindu Succession Act 1956, s.8: class I, then class II, then agnates, then cognates. Section 9: class I heirs take simultaneously and to the exclusion of others. Father is class II, not class I. The 2005 amendment added four female-line heirs to class I. Section 15 for a female intestate.

Legal representative: CPC s.2(11). Three limbs: a person who in law represents the estate; an intermeddler; and, where a party sued in a representative character dies, the person on whom the estate devolves. Order XXII r.1, no abatement if the right to sue survives; rr.3 and 4, substitution; r.9, no fresh suit after abatement, subject to an application to set it aside. Liability limited to the estate that has come to his hands.

Power of attorney: Powers-of-Attorney Act 1882, s.1A, any instrument empowering a specified person to act for and in the name of the executant; s.2, acts done by the donee are as effectual as if done by the donor. Donor and donee. General and special. CPC Order III rr.1 and 2(a): a holder of a power of attorney is a recognised agent. Ends on revocation, renunciation, death, insolvency, insanity, completion or expiry; a power coupled with an interest is not freely revocable. It is not a conveyance.

Test yourself

1. Distinguish a legal heir from a legal representative.

A legal heir is a person entitled under the applicable law of succession to inherit the property of the deceased, for a Hindu male dying intestate the class I and class II heirs, agnates and cognates under section 8 of the Hindu Succession Act 1956. A legal representative under section 2(11) of the Code of Civil Procedure 1908 is a person who in law represents the estate of the deceased, and expressly includes any person who intermeddles with the estate, and the person on whom the estate devolves where a party sued in a representative character dies. An heir is usually a legal representative; a legal representative may be a stranger to the family who has merely intermeddled.

2. Who are the class I heirs of a Hindu male dying intestate, and where does the father stand?

Class I of the Schedule to the Hindu Succession Act 1956 comprises the son, daughter, widow and mother, the son and daughter of a pre-deceased son, the son and daughter of a pre-deceased daughter, the widow of a pre-deceased son, the son, daughter and widow of a pre-deceased son of a pre-deceased son, together with four female-line heirs added in 2005. The father is not a class I heir at all; he is the first entry in class II, and so takes only if there is no class I heir.

3. What happens to a suit if the sole defendant dies?

Under Order XXII rule 1 the death does not cause the suit to abate if the right to sue survives. Under rule 4(1) the court shall, on an application, cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit, and under rule 4(2) that person may make any defence appropriate to his character as legal representative. If no application is made within the time limited by law the suit abates as against the deceased, and under rule 9 no fresh suit lies on the same cause of action, subject to an application to set aside the abatement for sufficient cause.

4. Define a power of attorney and state the effect of an act done under it.

Section 1A of the Powers-of-Attorney Act 1882 provides that "Power-of-Attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it. Under section 2 the donee may execute or do any instrument or thing in his own name and signature by the authority of the donor, and every such instrument or thing is as effectual in law as if executed or done by the donee in the name, and with the signature and seal, of the donor. The act therefore binds the donor, provided it is within the authority given.

5. May a power of attorney holder conduct a case for the party, and what may he not do?

Yes. Order III rule 1 of the Code of Civil Procedure 1908 allows an appearance, application or act to be made by the party in person, by his recognised agent or by a pleader, and rule 2(a) makes a person holding a power of attorney a recognised agent, subject to the court's power to direct the party to appear personally. What he may not do is depose as a witness to facts within the personal knowledge of the principal alone, because he did not witness them; his evidence on such matters is hearsay.

6. Does a "power of attorney sale" transfer title to immovable property?

No. A power of attorney is an instrument of authority, not an instrument of transfer. Title to immovable property passes by a duly executed and registered conveyance, and an arrangement consisting of a general power of attorney, an agreement to sell and a will does not amount to one. The holder may execute a sale deed on behalf of the donor if the power authorises it, but the power itself conveys nothing.

The Indian position on treaties

India follows what is called the dualist approach. A treaty binds India internationally once it is ratified. It does not by that fact become part of Indian law that an Indian court will enforce; that requires legislation, which is what article 253 exists for.

That is the general rule, and there is an important qualification which this book returns to twice. Where there is no domestic law occupying the field, and the international norm is consistent with the fundamental rights and in harmony with their spirit, the Supreme Court has read the norm into the Constitution as an aid to interpretation. That is what happened in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, and it is worked in [Vishaka v. State of Rajasthan] and again in [External Aids to the Interpretation of a Statute].

Arbitration

What it is

Arbitration is a method of resolving a dispute outside the courts, in which the parties agree to submit it to one or more arbitrators whose decision, called an award, is binding on them.

Section 2(1)(a) of the Arbitration and Conciliation Act 1996 is a definition that assumes you already know: "arbitration" means any arbitration whether or not administered by a permanent arbitral institution. What it does tell you is that both institutional arbitration, run by a body with its own rules, and ad hoc arbitration, run by the parties themselves, are covered.

It rests on agreement

Section 7(1): "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

Section 7(2): it may be in the form of an arbitration clause in a contract or a separate agreement.

Section 7(3): an arbitration agreement shall be in writing.

Section 7(4) sets out when it is in writing: a document signed by the parties; an exchange of letters, telex, telegrams or other means of telecommunication including electronic means, which provide a record of the agreement; or an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

Two consequences follow, and both are examinable. No agreement, no arbitration: a party cannot be forced into it. And an oral agreement to arbitrate is not enough.

What a court does when there is an arbitration agreement

Section 8(1): a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party or a person claiming through or under him so applies not later than the date of submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

Notice how narrow the court's role is. The word is "shall", the timing is fixed, and the only question left to the court is whether there prima facie is an agreement at all.

Challenging an award

Section 34 allows an application to set aside an arbitral award, and only on the grounds it lists, which include incapacity of a party, invalidity of the agreement, want of proper notice, the award dealing with a dispute outside the submission, an improperly constituted tribunal, non-arbitrability of the subject matter, and conflict with the public policy of India.

The point to take away is that an award is not appealed against on its merits. A court hearing a section 34 application is not sitting in appeal, and an award that is simply wrong on the facts is not for that reason liable to be set aside.

Arbitration and the other methods

Arbitration is one of several methods grouped as alternative dispute resolution. The others named in section 89 of the Code of Civil Procedure 1908 are conciliation, judicial settlement including settlement through a Lok Adalat, and mediation. Arbitration is the one that most resembles a court: there is a tribunal, evidence and a binding decision. Mediation and conciliation produce a settlement only if the parties agree to it.

Jurisdiction

What it is

Jurisdiction is the authority of a court to hear and determine a particular cause. A decree passed by a court without jurisdiction is a nullity, and its invalidity can be set up even in execution and in collateral proceedings.

The four kinds

Subject matter jurisdiction, which asks whether this class of dispute may be brought before this court at all. Section 9 of the Code of Civil Procedure 1908: the courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. So a civil court's jurisdiction is presumed, and the burden lies on the person asserting the bar.

Pecuniary jurisdiction, fixed by the statute constituting the court, which sets the value up to which it may try suits. Section 15 adds a rule of grade: every suit shall be instituted in the court of the lowest grade competent to try it.

Territorial jurisdiction, which asks whether the dispute belongs to this place. Section 16 requires suits for the recovery, partition, sale, redemption or determination of rights in immovable property to be instituted where the property is situate. Section 20 covers the rest: subject to the earlier limitations, every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant, or each of the defendants, actually and voluntarily resides, carries on business or personally works for gain; or where any of several defendants does so, subject to the proviso; or where the cause of action wholly or in part arises.

Original and appellate jurisdiction, which asks whether the court is hearing the case for the first time or on appeal.

Objections, and why timing matters

Section 21(1): no objection as to the place of suing shall be allowed by any appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Section 21(2) says the same for pecuniary limits, and section 21(3) for the limits of a court's jurisdiction as an executing court.

This produces the rule students most often get wrong. A defect of territorial or pecuniary jurisdiction is curable: it must be raised early and it must have caused a failure of justice, or it is waived. A defect of subject matter jurisdiction is not curable, and consent cannot confer it. That distinction is worth writing out in full whenever jurisdiction is asked about.

Amicus curiae

What it is

Amicus curiae is Latin for "friend of the court". An amicus curiae is a person, in India almost always an advocate, who assists the court on a question before it, without representing any party.

Why courts appoint one

Because a party is unrepresented. Where an accused in a serious criminal case has no lawyer, the court appoints one to appear for him, and the appointment is described as amicus curiae although in substance the advocate is defending him. This flows from the right to a fair trial.

Because a view is not being argued. In a public interest matter, both sides may want the same outcome and the opposing view may reach nobody. An amicus is appointed to put it.

Because the court needs help with a subject. In a matter turning on a technical field or on a large body of material, an amicus may be asked to marshal it.

Because the litigation is continuing and needs a steady hand. In long-running matters an amicus is often appointed to coordinate.

Where it appears in this book

An amicus curiae appeared in Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, and the judgment records his submissions. Facts. A writ petition under article 32 challenged the practice at the Sabarimala temple of excluding women between ten and fifty, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965. Held. By four to one the Court allowed the petition, holding the exclusion violative of article 15(1) and rule 3(b) ultra vires the Act insofar as it prohibited the entry of women, Indu Malhotra J. dissenting. Why it matters here. The amicus argued the ultra vires point independently of the petitioners, and both the majority and the minority deal with his argument by name, which is exactly what the office is for. The case itself is worked in [Indian Young Lawyers Association v. State of Kerala].

What an amicus is not

An amicus curiae is not a party and cannot be treated as one. He does not take instructions from a litigant, cannot compromise the matter, and does not carry a client's interests. His duty is to the court.

A worked example

An Indian company in Mumbai has a supply contract with a company in Singapore. The contract contains a clause saying that all disputes shall be referred to arbitration in Mumbai under the rules of a named institution.

A dispute arises and the Singapore company sues in the Bombay High Court instead. The Indian company, before filing its first statement on the substance of the dispute, applies under section 8. The court's task is narrow: unless it finds that prima facie no valid arbitration agreement exists, it shall refer the parties to arbitration. Section 7 is satisfied, because the clause is in writing and is contained in a document signed by the parties.

Suppose there had been no arbitration clause. Then the question would be jurisdiction. Subject matter: a contractual claim is a suit of a civil nature and no statute bars it, so section 9 is satisfied. Pecuniary: the value decides which court, and section 15 requires the lowest grade competent. Territorial: section 20 allows the suit where the defendant resides or carries on business, or where the cause of action arose wholly or in part, so if the goods were to be delivered in Mumbai, part of the cause of action arose there.

Suppose the suit is filed in the wrong district and nobody objects until the appeal. Section 21(1) shuts the objection out, because it was not taken at the earliest opportunity in the court of first instance and no failure of justice is shown. Had the objection been that a civil court could not entertain the claim at all, no lapse of time would have cured it.

And suppose the case raises a novel question about the enforcement of an international convention on which nobody has argued the contrary view. The court may appoint an amicus curiae to put it, exactly as happened in the Sabarimala matter.

Distinctions table

What these words do NOT mean

A ratified treaty is not automatically Indian law. Article 253 exists because implementation needs legislation. The Vishaka route operates only where there is no domestic law in the field.

Arbitration is not compulsory ADR. It rests on a written agreement, and section 8 is available only where one exists.

A section 34 application is not an appeal. The grounds are listed and closed, and the merits of the award are not reopened.

Jurisdiction is not the same as being right. A court can have jurisdiction and decide wrongly, which is what appeals are for. It can also decide correctly without jurisdiction, and the decree will still be a nullity.

An amicus curiae is not counsel for a party, even where the appointment is made because a party is unrepresented. His duty runs to the court.

Limits and criticism

Article 51 is a Directive Principle and is not enforceable, so the constitutional commitment to international law is a commitment of aspiration until Parliament legislates.

Arbitration was meant to be faster and cheaper than litigation, and the standing criticism is that section 34 challenges followed by appeals reproduce in court the delay arbitration was chosen to avoid.

Section 21 protects finality at the cost of correctness. A decree passed by a court of the wrong district stands if the objection was not taken in time, which is defensible as a rule against tactical silence and is uncomfortable to state as a principle.

The appointment of an amicus in a criminal case is sometimes formal rather than real, and that is a fair criticism of how the office is administered rather than of the office itself.

Quick revision

International law: rules States accept as binding between themselves. Sources: treaties, custom, general principles, with judicial decisions and writings as subsidiary. Constitution articles 51 and 253, Union List entry 14. India is dualist: a treaty needs legislation, except that in the absence of domestic law a consistent international norm may be read into the fundamental rights, as in Vishaka.

Arbitration: Arbitration and Conciliation Act 1996, s.2(1)(a), institutional or ad hoc. s.7, agreement in writing, in a clause or a separate agreement. s.8, the court shall refer unless prima facie no valid agreement exists. s.34, setting aside on listed grounds only, not an appeal. CPC s.89 lists the ADR methods.

Jurisdiction: subject matter, CPC s.9, presumed unless expressly or impliedly barred; pecuniary, by the constituting statute, with s.15 requiring the lowest competent grade; territorial, s.16 for immovable property and s.20 otherwise; original and appellate. s.21: objections to place and to pecuniary limits must be taken at the earliest opportunity and require a failure of justice; a defect of subject matter jurisdiction is not curable by consent or by waiver.

Amicus curiae: friend of the court. Appointed to represent an unrepresented accused, to argue a view nobody is arguing, to assist on a technical subject, or to coordinate long litigation. Owes a duty to the court, not to a party.

Test yourself

1. Is a treaty ratified by India enforceable in an Indian court?

Not by itself. India follows the dualist approach, so a treaty binds India in international law on ratification but becomes enforceable domestically only when Parliament legislates, which is what article 253 empowers it to do. The qualification is that where no domestic law occupies the field, and the international norm is consistent with the fundamental rights and in harmony with their spirit, the Supreme Court has read it into those rights as an aid to construction, as it did in Vishaka v. State of Rajasthan.

2. What are the requirements of a valid arbitration agreement?

Under section 7 of the Arbitration and Conciliation Act 1996 it must be an agreement to submit to arbitration all or certain disputes which have arisen or may arise in respect of a defined legal relationship, whether contractual or not; it may be an arbitration clause in a contract or a separate agreement; and it must be in writing. It is in writing if contained in a document signed by the parties, in an exchange of letters or other telecommunication including electronic means providing a record of it, or in an exchange of statements of claim and defence in which its existence is alleged by one party and not denied by the other.

3. What must a court do when a suit is filed in a matter covered by an arbitration agreement?

Under section 8(1), if a party to the agreement, or a person claiming through or under him, applies not later than the date of submitting his first statement on the substance of the dispute, the judicial authority shall refer the parties to arbitration, notwithstanding any judgment, decree or order of any court, unless it finds that prima facie no valid arbitration agreement exists. The application must be accompanied by the original agreement or a certified copy.

4. Name the kinds of jurisdiction of a civil court and the provision governing each.

Subject matter jurisdiction, under section 9 of the Code of Civil Procedure 1908, which gives the courts jurisdiction over all suits of a civil nature except those expressly or impliedly barred. Pecuniary jurisdiction, fixed by the statute constituting the court, with section 15 requiring the suit to be filed in the lowest grade competent to try it. Territorial jurisdiction, under section 16 for suits relating to immovable property and section 20 for other suits. And original as against appellate jurisdiction, according to whether the court hears the matter for the first time or on appeal.

5. A suit is filed in the wrong district and the objection is taken for the first time in appeal. What happens?

Section 21(1) provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. The objection therefore fails. The result would be different if the complaint were that the civil court had no jurisdiction over the subject matter at all, because such a defect goes to the root and cannot be cured by consent or by waiver.

6. What is an amicus curiae, and how does the office differ from that of counsel for a party?

An amicus curiae, literally a friend of the court, is a person, usually an advocate, appointed or permitted to assist the court on a question before it. Courts appoint one where an accused is unrepresented, where a view is not being put by anybody, where technical or voluminous material needs marshalling, or to assist in long-running litigation. The difference from counsel for a party is that an amicus takes no instructions, holds no client's brief, cannot compromise the matter, and owes his duty to the court alone.

The exception. An act of God excuses only where the loss is caused by the natural event and not by the defendant's own failure. A wall that would have fallen in an ordinary monsoon does not become an act of God because the rain was heavy. And where liability is absolute, the defence is not available at all: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court held that an enterprise carrying on a hazardous activity is absolutely liable and not entitled to any of the exceptions available under strict liability. That case is worked in [M.C. Mehta v. Union of India].

Do not confuse it with actus curiae neminem gravabit, "an act of the court shall prejudice no one", which is about a court's own mistake and not about natural events.

2. Salus populi est suprema lex

Literally: the welfare of the people is the supreme law.

As a rule: where private interest and public welfare collide, the law prefers public welfare. It is the principle behind every power the State has to restrict what a person may otherwise do.

Where it operates. In the reasonable restrictions permitted on the freedoms in article 19(2) to (6); in the power of eminent domain, by which the State acquires private land for a public purpose on payment of compensation; in public nuisance; in quarantine and public health powers; and in the whole of environmental regulation.

Illustration. A factory owner has every right to run his factory. When its effluent poisons a river that a town drinks from, the State may close it. The private right yields.

The exception, and it is important. The maxim is not a licence. Public welfare justifies a restriction only where a law authorises it and the restriction is reasonable. Article 21 requires a procedure established by law before life or personal liberty is taken, and the welfare of the people is not itself a procedure.

Companion maxim. Salus populi is often quoted with necessitas publica major est quam privata, public necessity is greater than private necessity, which says the same thing from the other side.

3. Nemo tenetur seipsum accusare

MU prints it as "Nemo Tenetur Sepisum Accusare". The maxim is nemo tenetur seipsum accusare.

Literally: no one is bound to accuse himself.

As a rule: a person cannot be compelled to give evidence against himself. It is the rule against self-incrimination and it is a constitutional guarantee in India, not merely a maxim.

Where it operates. Article 20(3): no person accused of any offence shall be compelled to be a witness against himself.

Three conditions have to be satisfied before article 20(3) applies, and listing them is the answer to any question on this maxim. The person must be accused of an offence; there must be compulsion; and the compulsion must be to be a witness against himself, meaning to furnish testimonial material that by itself tends to incriminate.

Illustration. A confession extracted by threat is inadmissible and its extraction is unlawful. Being required to give a specimen signature or a thumb impression for comparison is not, on the accepted view, being a witness against oneself, because it furnishes material for comparison rather than testimony.

The exception. The protection is against compulsion. A statement voluntarily made is not hit by it. And the article protects an accused; a witness who is not accused of an offence is in a different position.

The protection is personal, and that is asked. Article 20(3) protects the person accused from being compelled to be a witness against himself. It gives no right to stop somebody else speaking. So where two suspects are questioned and one chooses to remain silent, he cannot invoke the maxim to prevent the other from making a statement, even one that incriminates him: the other person's statement is not compelled testimony by him, and what weight it carries against him is a question of evidence and not of article 20(3).

Where else it shows. The eleven requirements in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, exist because custodial interrogation is where compulsion actually happens, and they are worked in [D.K. Basu v. State of West Bengal].

4. Leges posteriores priores contrarias abrogant

MU prints it as "Leges postpriores priores contrarias abrogant". The maxim is leges posteriores priores contrarias abrogant.

Literally: later laws repeal earlier contrary laws.

As a rule: where two statutes of the same legislature conflict and cannot be reconciled, the later prevails, and to the extent of the inconsistency the earlier is impliedly repealed.

Where it operates. It is the foundation of the doctrine of implied repeal. It is also why section 6 of the General Clauses Act 1897 exists, since a repeal, express or implied, would otherwise destroy everything done under the earlier Act; section 6 preserves it. Repeal is worked in [Repeal of Statutes, and the Provisions Dealing with Repeal under the General Clauses Act].

Illustration. A 2010 Act says a licence lasts five years. A 2020 Act by the same legislature says every such licence lasts three years and says nothing about the earlier provision. The later provision prevails and the earlier one is impliedly repealed to that extent.

The exception, and it carries marks. Implied repeal is not favoured. A court will strain to read the two provisions together, and will hold there is an implied repeal only where they are so inconsistent that they cannot stand together. And a general later Act does not repeal a special earlier one: that is the maxim generalia specialibus non derogant, general things do not derogate from special ones.

5. Nova constitutio futuris formam imponere debet, non praeteritis

MU prints it as "Nova constituito futris formam imponere debet non praetertis". The maxim is nova constitutio futuris formam imponere debet, non praeteritis.

Literally: a new law ought to impose form upon what is to come, not upon what is past.

As a rule: a statute is presumed to operate prospectively. It is not read as affecting things already done, or rights already accrued, unless the legislature has said so expressly or by necessary implication.

Where it operates. It is the presumption against retrospective operation, worked in full in [Prospective Application and Retrospective Effect]. In the criminal law it is not a presumption but a guarantee: article 20(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged, nor be subjected to a greater penalty than that which might have been inflicted under the law in force at that time.

Authority. In Commissioner of Income Tax v. Vatika Township Private Limited, decided on 15 September 2014, a Constitution Bench put the modern position. Facts. A proviso added to section 113 of the Income Tax Act 1961 by the Finance Act 2002 imposed a surcharge on block assessments, and the Revenue applied it to periods before it came into force. Held. The basis of the principle against retrospectivity is fairness; legislation that modifies accrued rights or imposes obligations, new duties or a new disability is prospective unless a contrary intent is clear. Where a benefit is conferred without a corresponding detriment, a purposive construction may make the statute retrospective, which is why procedural provisions are treated as retrospective. The presumption does not apply to declaratory statutes, which remove doubts about an earlier law. The proviso here was onerous, so the normal presumption applied and it operated prospectively. Why it matters. It gives the maxim, its exceptions and the reason for both in a single judgment.

Two exceptions to name. A procedural amendment can apply to pending proceedings, because nobody has a vested right in procedure. A declaratory or clarificatory amendment operates from the date of the Act it explains.

6. Noscitur a sociis

Literally: a word is known by the company it keeps.

As a rule: where a word of doubtful meaning stands in a list with other words, its meaning may be gathered from those others. The associated words colour it.

Where it operates. It is a subsidiary rule of statutory interpretation and it is on this syllabus twice, here and in [Secondary Rules: Noscitur a Sociis, Ejusdem Generis and Reddendo Singula Singulis].

Illustration. A provision refers to "buildings, structures, walls, fences and other erections". "Erections" standing alone might mean anything erected; in that company it means something of the same physical, permanent kind, and not, say, a scaffolding put up for a day.

Authority. In State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610, the Court both applied and limited the maxim. Facts. Two ward servants of a State run hospital in Bombay were retrenched without the compensation required by section 25F(b) of the Industrial Disputes Act 1947, and the question was whether a hospital is an "industry" within the wide definition in section 2(j), which includes any business, trade, undertaking, manufacture or calling of employers. Held. The hospital was an industry, and the maxim could not be used to cut down "undertaking" by reference to the narrower words around it: noscitur a sociis is a rule of construction which can apply only where the intention of the legislature in associating words of wider import with those of narrower import is in doubt, or the meaning of the wider word is itself in doubt. Why it matters. It supplies the limit on the maxim, which is the half students leave out.

The exception. Where the wider word is clear, the maxim has nothing to work on. It is a tool for doubt, not a general licence to narrow.

7. Expressio unius est exclusio alterius

MU prints it as "Expressio unis est exclusio alterius". The maxim is expressio unius est exclusio alterius.

Literally: the express mention of one thing is the exclusion of another.

As a rule: where a statute expressly mentions certain things, the implication is that things of the same class not mentioned are excluded.

Where it operates. Throughout statutory interpretation, and particularly in reading lists of exceptions, of grounds and of persons entitled.

Illustration. A rule says "a candidate may be exempted from the fee if she is a member of a Scheduled Caste or a Scheduled Tribe". A candidate from some other disadvantaged group is not exempted; the express mention of two categories excludes the rest.

Authority in this book. Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, is a good illustration of the same instinct at work in a penal provision. Facts. Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 made it an offence for a landlord to receive any premium in respect of the grant, renewal or continuance of a lease, and the appellants had received money under a contract to grant a lease of premises not yet built. Held. The words "grant, renewal or continuance of a lease" suggest a lease that exists, and do not cover an executory agreement to grant one; and where two possible and reasonable constructions can be put on a penal provision, the court must lean towards the one that exempts the subject from penalty. Why it matters here. What was expressly named was three situations, and a fourth outside them could not be brought in.

The exception, and it is a large one. The maxim is a weak aid and is easily displaced. A list may be illustrative rather than exhaustive, and a definition introduced by "includes" is by its nature not exhaustive at all. The maxim applies only where the list is naturally read as complete.

8. Vigilantibus, non dormientibus, jura subveniunt

MU prints it as "Vigilantibus, non domientibus, jura subveniunt". The maxim is vigilantibus, non dormientibus, jura subveniunt.

Literally: the laws assist those who are vigilant, not those who sleep upon their rights.

As a rule: a person who delays in enforcing a right may lose the ability to enforce it. The law fixes time limits and expects them to be observed.

Where it operates. It is the whole justification of the law of limitation.

Section 3(1) of the Limitation Act 1963: subject to sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Those last words are the point. The court applies limitation on its own; the defendant need not plead it.

Illustration. A creditor lends money repayable on 1 March 2024 and does nothing until 2032. His suit will be dismissed, even if the debtor never raises the point, because the ordinary period for a suit on a debt is three years.

Two qualifications that a complete answer names. Limitation ordinarily bars the remedy and does not extinguish the right, which is why a time barred debt paid voluntarily is validly paid; the exception is section 27, under which the right to property is extinguished when the period for a suit for possession expires. And section 5 allows an appeal or application, though not a suit, to be admitted after the period where the applicant satisfies the court that he had sufficient cause for not coming in time.

A worked example

Ashwin's house in Pune is damaged in 2020 when a builder next door excavates carelessly. Ashwin files a suit in 2032.

Vigilantibus, non dormientibus. The suit is out of time and section 3 of the Limitation Act 1963 requires the court to dismiss it, whether or not the builder pleads limitation. Ashwin's right is not extinguished; his remedy by suit is.

Suppose the builder says the collapse was caused by unprecedented rain. He is pleading actus Dei nemini facit injuriam. It will succeed only if the rain, and not his excavation, caused the damage, and only if the rainfall was genuinely beyond what could reasonably have been guarded against.

Suppose the statute under which Ashwin claims compensation was amended in 2031 to raise the amount, and he says the new figure applies to his 2020 claim. Nova constitutio futuris formam imponere debet, non praeteritis. The amendment is presumed prospective, and Vatika Township explains that a provision imposing a burden is prospective while a benefit conferred without detriment to anyone may be read retrospectively.

Suppose the compensation provision lists "damage caused by excavation, blasting or piling". Ashwin's neighbour, whose wall cracked because of vibration from heavy vehicles, cannot bring himself within it: expressio unius est exclusio alterius, subject to the caution that the list must genuinely be read as complete.

And suppose the same provision then says "or any other operation". Now noscitur a sociis and its stronger cousin ejusdem generis come into play, and Hospital Mazdoor Sabha warns that neither can be used unless there is a genuine doubt to resolve.

Distinctions table

What these maxims do NOT mean

A maxim does not override a statute. Where the Act is clear, the maxim has no work to do.

"Act of God" is not any accident. It is an operation of natural forces that no human foresight could reasonably provide against, and even then it is no answer where liability is absolute.

Salus populi does not permit action without law. Article 21 requires a procedure established by law.

Article 20(3) does not protect a person who is not accused of an offence, and it does not protect against every kind of compelled production, only against being compelled to be a witness against oneself.

Implied repeal is not presumed. Courts reconcile where they can, and a general later Act does not repeal a special earlier one.

Noscitur a sociis and expressio unius are weak aids. Both give way to a clear intention and to an inclusive definition.

Quick revision

Actus Dei nemini facit injuriam: an act of God injures no one; a tort defence, close to frustration under Contract Act s.56; unavailable against absolute liability, M.C. Mehta.

Salus populi est suprema lex: public welfare is the supreme law; article 19(2) to (6), eminent domain, public nuisance, environmental regulation; but article 21 still requires a procedure established by law.

Nemo tenetur seipsum accusare: article 20(3); three conditions, accused of an offence, compulsion, being a witness against himself.

Leges posteriores priores contrarias abrogant: implied repeal; not favoured; generalia specialibus non derogant; General Clauses Act s.6 saves what was done.

Nova constitutio futuris formam imponere debet, non praeteritis: presumption against retrospectivity; article 20(1); Vatika Township for the exceptions, procedural and declaratory.

Noscitur a sociis: a word known by its company; Hospital Mazdoor Sabha, applies only where there is a doubt.

Expressio unius est exclusio alterius: express mention excludes the rest; a weak aid, displaced by an inclusive or illustrative list.

Vigilantibus, non dormientibus, jura subveniunt: Limitation Act s.3, dismissal although limitation is not pleaded; s.5, sufficient cause for an appeal or application; s.27 extinguishes the right in a possession case.

Test yourself

1. What is a legal maxim, and what are its limits as an aid?

A legal maxim is a short traditional statement of a legal principle, usually in Latin, which compresses a rule the courts have long applied. Its limits are that it is not a source of law and cannot prevail over a statute; that it is an aid to reasoning and to interpretation rather than a rule that decides a case by itself; and that almost every maxim carries an exception, so an answer that states the maxim without the exception is incomplete.

2. State the maxim about acts of God and its limits.

Actus Dei nemini facit injuriam, the act of God does injury to no one, meaning that a person is not liable for loss caused by an operation of natural forces so unexpected that no human care or skill could reasonably have provided against it. Its limits are that the natural event must have caused the loss, so a defect the defendant should have remedied is not excused by heavy rain; and that where liability is absolute the defence is not available at all, as M.C. Mehta v. Union of India held for enterprises carrying on hazardous activities.

3. What are the three conditions for article 20(3) to apply?

The person must be accused of an offence, so a person against whom no accusation exists is not protected by it. There must be compulsion, so a voluntary statement is outside the article. And the compulsion must be to be a witness against himself, meaning to furnish testimonial material of an incriminating character, which is why furnishing a specimen signature or thumb impression for comparison has not been treated as being within it.

4. Explain implied repeal and the two limits on it.

Leges posteriores priores contrarias abrogant means that where two statutes of the same legislature are irreconcilable the later prevails and repeals the earlier to the extent of the inconsistency, even if it says nothing about repeal. The first limit is that implied repeal is not favoured: a court will read the two together if it can, and will find an implied repeal only where they cannot stand together. The second is generalia specialibus non derogant, that a later general Act does not repeal an earlier special one.

5. When may a statute operate retrospectively despite the presumption?

Commissioner of Income Tax v. Vatika Township Private Limited identifies the situations. Where the legislature has said so expressly or by necessary implication. Where the provision is procedural, because nobody has a vested right in procedure. Where a benefit is conferred without a corresponding detriment to anyone, so that a purposive construction supports retrospective operation. And where the statute is declaratory, that is, passed to remove doubts as to the meaning or effect of an earlier law, of which the words "shall be deemed always to have meant" are a plain indication.

6. What does the Limitation Act do to a right that is not enforced in time?

Section 3(1) requires the court to dismiss a suit, appeal or application made after the prescribed period, and to do so although limitation has not been set up as a defence, which is the statutory form of vigilantibus, non dormientibus, jura subveniunt. The general effect is to bar the remedy and not to extinguish the right, so a time barred debt paid voluntarily is validly paid. The exception is section 27, under which the right to the property itself is extinguished when the period for a suit for possession expires. Section 5 allows an appeal or application, but not a suit, to be admitted late on sufficient cause.

Illustration. A landlord locks the gate so that the tenant cannot reach the office to deposit the rent, and then applies for eviction for non-payment. The application fails: the default he relies on is his own doing.

In this book. The principle is the reason for the last of MU's six presumptions in [Presumptions in Statutory Interpretation], which is the presumption against a construction that would permit a person to take advantage of their own wrong.

The exception. Like every maxim it yields to a statute. Where an Act attaches a consequence to a state of affairs and does not care how it came about, the court applies the Act.

11. Cessante ratione legis, cessat ipsa lex

MU prints it as "Cessante retione legis cessat ipsa lex". The maxim is cessante ratione legis, cessat ipsa lex.

Literally: when the reason for a law ceases, the law itself ceases.

As a rule: a rule of law that exists for a particular reason has no application where that reason does not apply. Used carefully, it is a rule of construction and of the development of the common law.

Where it operates. Chiefly in the growth of judge-made law. A court which finds that the justification for an old rule has disappeared may decline to apply the rule.

Authority, and it is the clearest illustration on this syllabus. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court refused to apply a rule of 1868. Facts. Oleum gas escaped from the caustic chlorine plant of Shriram Foods and Fertilizer Industries in a densely populated part of Delhi on 4 and 6 December 1985, and the Court, hearing a petition under article 32, had to decide on what principle such an enterprise is liable. Held. The Court declined to be bound by the rule in Rylands v. Fletcher with its exceptions, saying it would not hold its hands back merely because the English courts had not gone further, and laid down that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non delegable duty to the community, is absolutely liable for harm resulting, and cannot answer that it took all reasonable care; and that compensation must be correlated to the magnitude and capacity of the enterprise. Why it matters here. The reasoning is the maxim: the conditions that produced the nineteenth century rule no longer obtain, so the rule no longer governs.

The exception, and it is a serious one. The maxim has no application to a statute. A court cannot refuse to apply an Act of Parliament on the ground that the reason for it has passed; only the legislature can repeal. A student who writes that an outdated Act ceases to bind has made the standard error on this maxim.

12. Acta exteriora indicant interiora secreta

Literally: external acts indicate internal secrets.

As a rule: what a person intended is proved by what they did. Since intention cannot be observed directly, the law infers it from conduct and from the surrounding circumstances.

Where it operates. Everywhere that a state of mind has to be established, which is most of the criminal law and a great deal of the civil law.

The statutory hook is section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023, which provides that "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious. Because a mental condition is a fact, it can be proved; and because it cannot be perceived, it is proved by inference from other facts. That definition is worked in [Fact, Person, Offence and State].

Illustration. Nobody can see dishonest intention. What can be seen is that the accused bought a ticket for another city on the morning of the transfer, that he used a false name, and that he closed the account the same day. The intention is inferred from those acts.

The exception. An inference is not a presumption of guilt. The conduct must be capable of supporting the inference, and where the conduct is equally consistent with innocence the inference cannot be drawn, because in a criminal case guilt must be proved beyond reasonable doubt.

13. Domus sua cuique est tutissimum refugium

Literally: to everyone, his house is his safest refuge. The idea is more familiar in the English form: an Englishman's home is his castle.

As a rule: the home has a special protection in law. Entry into it, and search of it, are permitted only in the manner the law allows.

Where it operates. In the right of private defence of property, which is at its strongest in the home. In the requirements for a lawful search: the Bharatiya Nagarik Suraksha Sanhita 2023 requires a search of a closed place to be conducted in the presence of independent and respectable witnesses of the locality, requires a list of the things seized to be prepared and signed, and gives the occupant a right to be present and to a copy of the list. In article 21, from which the right to privacy has been developed. And in the rule that a person residing in a house may refuse entry to anybody who has no legal right to enter.

Illustration. Police officers wish to search a flat. They must comply with the safeguards the Sanhita lays down. A search conducted in defiance of them does not automatically make the evidence inadmissible in India, and it exposes the officers to consequences and weakens the prosecution's case.

The exception. The protection is not absolute. It yields to a lawful warrant, to the specific powers of search and seizure the codes confer, and to the requirements of public safety. The maxim describes a presumption in favour of the occupant, not an immunity.

14. Nemo est haeres viventis

Literally: no one is the heir of a living person.

As a rule: nobody has any right of inheritance in the property of a person who is still alive. Until death, what an heir apparent has is a spes successionis, a mere hope or chance of succeeding, and that is not property and cannot be transferred.

Where it operates. In the law of succession and in the law of transfer of property. Section 8 of the Hindu Succession Act 1956 speaks of the property of a male Hindu dying intestate; nothing devolves before that. And a transfer of a mere chance of an heir apparent succeeding to an estate is void under the Transfer of Property Act 1882.

Illustration. Kiran's father is alive and owns a house. Kiran sells "his share" in that house to a purchaser. The sale conveys nothing, because Kiran has no share; he has a chance of becoming an heir, and only if he survives his father and the father dies intestate and the property is still there.

The exception, and it is important in family law. Under the Hindu Succession Act 1956 as amended in 2005, a daughter, like a son, becomes a coparcener by birth in a Hindu undivided family. A coparcenary interest is not a spes successionis: it exists during the father's lifetime. So the maxim governs succession, and not the coparcenary interest that arises by birth.

15. Ignorantia facti excusat, ignorantia juris non excusat

MU prints it as "Ignorantia facti excusat, ignorantia lex non excusat". The maxim is ignorantia facti excusat, ignorantia juris non excusat.

Literally: ignorance of fact excuses, ignorance of law does not excuse.

As a rule: a person who acts under a mistaken belief about a fact may be excused; a person who acts in ignorance of what the law is, is not.

Where it operates. Directly in the criminal law.

Section 14 of the Bharatiya Nyaya Sanhita 2023: nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Section 17: nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it.

Both sections put the maxim into statutory words, and both contain the phrase that carries it: mistake of fact, and not mistake of law.

Illustration. A soldier fires on a mob on the order of his superior officer, in conformity with the commands of the law. He has committed no offence. Contrast a person who takes another's property believing that the law allows him to do so: that is a mistake of law and it excuses nothing.

Why ignorance of law does not excuse. Not because everyone is assumed actually to know every statute, which nobody does, but because a legal system in which a person could escape liability by pleading ignorance of the rule would be unworkable: the plea would always be available and could rarely be disproved.

The qualifications. The mistake of fact must be in good faith and must be reasonable. And where a statute makes knowledge of a fact or of an order an ingredient of the offence, an accused who did not know it is not guilty, because the prosecution has failed to prove an ingredient rather than because ignorance excuses.

Companion maxim. Ignorantia juris quod quisque scire tenetur non excusat, ignorance of the law which everybody is bound to know does not excuse, is the fuller form and is worth a line.

A worked example

In 2019 Nikhil, whose father is alive, executes a document selling his "share" in the family house to Priyanka, who pays him. In 2026 the father dies, and Priyanka sues for possession.

Nemo est haeres viventis. In 2019 Nikhil had no share. He had a spes successionis, a chance of succeeding, which is not property and cannot be transferred.

Quod ab initio non valet, in tractu temporis non convalescit. The document was ineffective when made, and the father's death seven years later does not breathe life into it. What was void at the beginning does not become valid with time.

Nullus commodum capere potest de injuria sua propria. Nikhil, having taken Priyanka's money on a document he knew conveyed nothing, cannot rely on his own conduct to keep both the money and the property. Priyanka's remedy lies in restitution of the price rather than in the conveyance.

Acta exteriora indicant interiora secreta. If Priyanka alleges that Nikhil acted dishonestly, she will prove it not by asserting his state of mind but by pointing to what he did: that he described himself as an owner, that he produced a copy of the mutation entry, that he took the money in cash.

Ignorantia juris non excusat. Nikhil's plea that he did not know a chance of succession could not be sold does not assist him.

And a variation. Suppose Nikhil is prosecuted for cheating and says he genuinely believed his father had already gifted him a share, because he had seen a document that turned out to be a draft. That is a mistake of fact, and if it is in good faith and reasonable, sections 14 and 17 of the Bharatiya Nyaya Sanhita 2023 are engaged.

Distinctions table

What these maxims do NOT mean

"Void never becomes valid" does not mean a claim about it never becomes time barred. Validity and remedy are different questions, and section 27 of the Limitation Act 1963 can extinguish a right to property.

Cessante ratione legis does not apply to a statute. A court cannot decline to apply an Act on the ground that its reason has passed. This is the standard error on the maxim.

Acta exteriora does not reverse the burden of proof. Conduct is evidence from which intention may be inferred; where the conduct is equally consistent with innocence, no inference can be drawn.

Domus sua cuique is not an immunity from search. It is a protection that operates through the safeguards the codes prescribe.

Nemo est haeres viventis does not defeat a coparcenary interest, which arises by birth and exists during the father's lifetime, and since 2005 belongs to a daughter as it does to a son.

Ignorance of law does not excuse, and that is not the same as saying everyone knows the law. It is a rule about what may be pleaded, adopted because the contrary rule would be unworkable.

Limits and criticism

The maxims are English and Roman in origin and are used in a codified system. Once a principle is in an Act, quoting the Latin adds nothing to a court's reasoning, which is why modern judgments cite the section and mention the maxim in passing.

"Ignorance of law is no excuse" is defended on necessity rather than on fairness, and it is uncomfortable in a country with a very large body of subordinate legislation. The answer the law gives is that the alternative is worse.

Cessante ratione legis is unstable. Given a free hand, it lets a court set aside any rule it thinks has outlived its purpose, which is why it is confined to judge-made law and why even there it is used sparingly.

Quick revision

Quod ab initio non valet, in tractu temporis non convalescit: void stays void; void against voidable; but the remedy can still be barred by limitation, s.27.

Nullus commodum capere potest de injuria sua propria: no advantage from one's own wrong; suppression of facts in a writ petition; the sixth presumption in statutory interpretation.

Cessante ratione legis, cessat ipsa lex: the reason gone, the rule goes; M.C. Mehta refusing Rylands v. Fletcher; and NO application to a statute.

Acta exteriora indicant interiora secreta: conduct proves intention; BSA 2023 s.2(1)(f) makes a mental condition a fact.

Domus sua cuique est tutissimum refugium: the home is protected; safeguards on search; private defence; article 21 and privacy; not an immunity.

Nemo est haeres viventis: spes successionis is not property and cannot be transferred; Hindu Succession Act s.8 speaks of a person dying intestate; a coparcenary interest by birth is different.

Ignorantia facti excusat, ignorantia juris non excusat: BNS 2023 ss.14 and 17, mistake of fact and not mistake of law, in good faith.

Test yourself

1. Explain the maxim about void transactions, and state its limit.

Quod ab initio non valet, in tractu temporis non convalescit means that what is not valid from the beginning does not become valid by the passage of time. A void transaction is a nullity when made and remains one, whatever the parties do later, which is why a decree of a court without subject matter jurisdiction stays a nullity however long it goes unchallenged. The limit is that the maxim goes to validity and not to remedy: a suit to set aside a void transaction can itself become time barred, and section 27 of the Limitation Act 1963 can extinguish a right to property altogether.

2. Give three applications of "no one may take advantage of his own wrong".

A party who himself prevents performance of a contract cannot complain of the other side's non-performance. A petitioner who suppresses material facts in a writ petition is refused relief on that ground alone, without the merits being reached. And a party who has caused the delay in a proceeding cannot rely on that delay to defeat the opposite party. The principle also appears among the presumptions of statutory interpretation, as a presumption against a construction that would let a person profit from their own wrong.

3. Why can cessante ratione legis not be applied to a statute?

Because repeal is for the legislature and not for a court. The maxim says that where the reason for a rule has ceased the rule ceases, and it works in the development of judge-made law, where the court that made the rule may decline to apply it once its justification has gone. An Act of Parliament remains in force until it is repealed or is held unconstitutional, and a court has no power to disapply it on the ground that the circumstances that produced it have passed.

4. How is intention proved, and what statutory provision supports the maxim?

By inference from external acts and surrounding circumstances, which is what acta exteriora indicant interiora secreta expresses. The supporting provision is section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023, which defines a fact as including any mental condition of which any person is conscious. Because a state of mind is a fact it may be proved, and because it cannot be perceived by the senses it is proved indirectly, by evidence of conduct from which the inference can be drawn.

5. Can an heir apparent transfer his expected share during the owner's lifetime?

No. Nemo est haeres viventis means that nobody is the heir of a living person, so before the death the expectant heir has only a spes successionis, a chance of succeeding, which is not property and is not transferable; a transfer of it is void. Section 8 of the Hindu Succession Act 1956 confirms the timing, since it deals with the property of a male Hindu dying intestate. The exception is a coparcenary interest in a Hindu undivided family, which arises by birth and belongs since 2005 to a daughter as it does to a son.

6. Distinguish a mistake of fact from a mistake of law, with the provisions.

A mistake of fact is a wrong belief about a factual matter and it may excuse; a mistake of law is ignorance or misunderstanding of what the law is and it does not. Sections 14 and 17 of the Bharatiya Nyaya Sanhita 2023 both state the distinction in terms, protecting a person who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself bound, or justified, by law in doing what he did. The mistake must be in good faith and reasonable, and where a statute makes knowledge an ingredient of the offence, the absence of knowledge defeats the charge because an ingredient is missing.

Reportable and non-reportable

Not every decision is reported. The Supreme Court itself marks judgments "Reportable" or "Non-Reportable", and the reporters exercise their own judgment beyond that. A short order applying settled law to particular facts adds nothing to the law and is not reported.

Official and private reports

Official reports are published by or under the authority of the court itself. For the Supreme Court that is the Supreme Court Reports, cited as SCC in its private form and SCR in the official one.

Private reports are published commercially. All India Reporter, cited AIR, is the oldest and most widely used in India; Supreme Court Cases, cited SCC, is the other standard series.

The point students miss about parallel citations

The same judgment appears in several reports at once, at different volumes and pages. The case worked in [D.K. Basu v. State of West Bengal] is AIR 1997 SC 610 in one series and (1997) 1 SCC 416 in another. Both references point at the same judgment; neither is wrong.

That is why a citation is quoted with its series. "1997 SC 610" means nothing without the "AIR".

Law magazines

What they are

A law magazine, or journal, is a periodical carrying articles, case comments, legislative notes and news, written by academics and practitioners.

What they are for, and what they are not

They are secondary material. A journal article is not law and is not binding on anybody. Its value is in the analysis: an article can trace a line of cases, expose a conflict between High Courts, or argue that a decision was wrongly reasoned, and courts and counsel read them for that.

Some publications do both jobs: a series may carry reported judgments in one part and articles in another, which is why a citation with the letter "J" for journal in it points at an article and not at a case.

Where they fit in the sources of law

Under article 38(1)(d) of the Statute of the International Court of Justice, the teachings of the most highly qualified publicists are a subsidiary means for determining rules of international law. In Indian domestic law the position is simpler: a text or an article is persuasive only, and a court may adopt its reasoning or reject it. The chapter on [External Aids to the Interpretation of a Statute] returns to this.

Explanation of citations

How a citation is built

Read the four parts in order and any citation becomes legible.

The year, in one of two forms. In square brackets, as in [1955] 2 SCR 603, the year is an essential part of the reference: the volumes are numbered afresh each year and you cannot find the case without it. In round brackets, as in (1997) 1 SCC 416, the year is helpful but not essential, because the volume number runs on continuously.

The volume number, where the series has more than one volume in a year.

The abbreviation of the report, which is the name of the series.

The page or the case number at which the report begins.

So (1997) 1 SCC 416 reads: the first volume of Supreme Court Cases for 1997, at page 416. And AIR 1997 SC 610 reads: All India Reporter for 1997, Supreme Court section, page 610.

The court, when it is not in the series name

AIR covers every court, so it adds a code: SC for the Supreme Court, Bom for the Bombay High Court, Del, Cal, Mad, All and so on. "AIR 1987 SC 1086" is therefore a Supreme Court decision, and "AIR 1986 Bom 1" is a Bombay High Court decision.

What a citation is not

It is not a description of the case, it does not tell you whether the decision is still good law, and it does not tell you the bench strength. All three have to be checked separately.

When there is no report reference

Sometimes a judgment has been read and no report reference has been. The honest form then is to give the court and the date of the judgment, and to say nothing about the volume. This book does exactly that for Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, because the citation MU prints for it could not be verified against the judgment.

The search of a case law

The steps, in order

One, know what you are looking for. Not "a case on cheating", but the proposition you need: "whether a mistake of fact in good faith is a defence where the statute makes knowledge an ingredient". A vague search returns everything.

Two, start from the statute. Find the section first. Most annotated editions of an Act print the leading cases under each section, and that is the fastest route from a provision to the decisions on it.

Three, use a digest or an index. A digest arranges decisions by subject and by section, and is designed for exactly this.

Four, follow the citations backwards. Every judgment lists the cases it relied on. One good recent case gives you the line behind it.

Five, follow them forwards. A citator tells you which later cases have referred to this one, and how: followed, distinguished, doubted, overruled.

Six, read the judgment, not the summary. The headnote points you to the passage; the passage is what you cite.

The question in the form the paper sets it

The examination does not ask "how do you find a case". It asks, in terms, "describe the search of the case on 'whether a contract without free consent is voidable'", and it does that as a short note worth six marks. What is wanted is a method applied to that proposition, and this is what a full answer looks like.

Step one: turn the proposition into legal words. "Whether a contract without free consent is voidable" contains three terms of art: contract, free consent and voidable. Those, and not the everyday words, are what the search is made on.

Step two: find the provision first. Free consent is defined in the Indian Contract Act 1872, and the Act says what follows when consent is not free. The provision is the anchor: it fixes the language the judgments will use and it gives the section number under which annotations and digests file the cases.

Step three: use a digest or an annotated edition of the Act. Both arrange decisions section by section, so the cases on that section are listed together. This is faster than any search by subject, because it uses the draftsman's vocabulary rather than yours.

Step four: read the leading case and follow its citations backwards. Every judgment lists the authorities it relied on, so one good recent decision opens the line behind it.

Step five: follow them forwards with a citator, which shows which later decisions have referred to the case and how: followed, distinguished, doubted or overruled.

Step six: read the judgment, not the headnote, and note the exact passage, because that is what will be cited.

Step seven: check the case is still good law, and check whether the provision has been amended since the judgment was delivered.

Step eight: record the citation in full, with the parallel citation if there is one, and the bench strength, since a decision of a larger bench prevails over a smaller one.

The same eight steps answer every version of this question, and only steps one and two change with the proposition. For "whether a contract by a minor is void ab initio" the anchor is the provision on the capacity of parties to contract; for "whether a contract against public policy is invalid" it is the provision on lawful consideration and object.

Checking that the case is still good law

This is the step that is skipped and it is the one that loses cases.

A decision may have been overruled by a larger bench, as Sowmithri Vishnu and two others were in Joseph Shine v. Union of India, AIR 2018 SC 4898. It may have been superseded by statute. It may have been referred to a larger bench, which is what happened to the Sabarimala judgment when review petitions were dealt with in 2019. Or the provision it construed may have been repealed and re-enacted, which is what section 8 of the General Clauses Act 1897 addresses and what [Repeal of Statutes, and the Provisions Dealing with Repeal under the General Clauses Act] works out.

Reading a judgment: ratio and obiter

Two terms every answer on this topic should define.

Ratio decidendi means "the reason for the decision": the principle of law on which the decision actually rests, applied to the material facts. That is the part which binds.

Obiter dictum means "a thing said by the way": an observation not necessary to the decision. It is persuasive and it does not bind.

Where several judges write separately, work out what the majority held. In Joseph Shine five judges wrote four opinions and all concurred in striking down section 497, so the result is unanimous. In Indian Young Lawyers Association v. State of Kerala four judges formed the majority and Indu Malhotra J. dissented, so her opinion, however fully reasoned, is the minority. MU's topic 3.2 asks about exactly this distinction, and it is worked in the six case chapters.

Abbreviations of law reports

The abbreviations MU expects, with what each stands for.

A worked example

Aparna is asked to find the law on whether a court may look at the speech of the Minister who moved a Bill when construing the Act.

She starts from the subject, not from a case name. The proposition is: are parliamentary materials an aid to construction?

She looks for a leading decision. She finds K.P. Varghese v. Income Tax Officer, Ernakulam, AIR 1981 SC 1922. Reading the citation: All India Reporter, 1981, Supreme Court, page 1922.

She reads the judgment and not the headnote. Facts. The assessee sold his Ernakulam house in 1965 to his daughter in law and five of his children for the same price he had paid in 1958, and the Income Tax Officer sought to tax a capital gain under section 52(2) of the Income Tax Act 1961 on the footing that the fair market value exceeded the declared consideration by more than fifteen per cent. Held. Section 52(2) applies only where the consideration has in fact been understated, and the burden of proving understatement lies on the Revenue; and the Court reached that reading by using the speech of the Finance Minister moving the amendment, the marginal note to section 52, the placement of the sub section, the word "declared" inside it, and two circulars of the Central Board of Direct Taxes, which it treated as binding on the Revenue and as being in the nature of contemporanea expositio. Why it matters. One judgment uses four different external aids and says what each is worth, which is exactly what Aparna needed.

She checks it is still good law, by looking for later cases that have considered it.

She notes the parallel citation she also finds, (1981) 4 SCC 173, and records both.

And she writes down where the passage is, so that she can quote it rather than paraphrase it. The chapter on [External Aids to the Interpretation of a Statute] is where that research is used.

Distinctions table

What these things do NOT mean

A headnote is not the judgment. It is an editor's summary and it carries no authority.

A citation does not prove a case is good law. Overruling, statutory supersession and a reference to a larger bench are all invisible in the citation.

Parallel citations are not different cases. AIR 1997 SC 610 and (1997) 1 SCC 416 are one judgment in two series.

"J" in a citation does not mean judgment. It means the journal section, so the reference is to an article.

A law magazine is not a source of law, however distinguished the author.

Limits and criticism

Reporting is selective, and the selection is not neutral. What gets reported shapes what gets cited, and a correct decision that is never reported has no influence at all.

Parallel citations make verification harder than it should be. A single official neutral citation for every judgment would solve it, and adoption in India has been partial.

Headnotes are widely relied on because they are quick, and they are the single most common source of misquotation in a first-year answer.

Quick revision

Law report: the text of judgments, with name, citation, court and bench, date, headnote, cases cited and the judgment. The headnote binds nobody. Reportable and non-reportable. Official (SCR) and private (AIR, SCC). Article 141 is why reporting matters.

Law magazine: articles and comment, secondary and persuasive only.

Citation: year, volume, series abbreviation, page. Square brackets mean the year is essential; round brackets mean it is not. AIR adds a court code, SC, Bom, Del. Parallel citations are one case in two series. Where no report reference has been read, give the court and the date.

Searching: state the proposition, start from the section, use a digest, follow citations backwards and forwards, read the judgment not the headnote, and check the case is still good law. Ratio decidendi binds; obiter dictum persuades; identify the majority where judges write separately.

Test yourself

1. What is a law report, and what parts does a reported case have?

A law report is a publication containing the authentic text of judgments of the superior courts, arranged and indexed so that a decision can be found and cited. A reported case carries the name of the case, the citation, the court and the names of the judges, the date of judgment, a headnote summarising the facts and the holdings, lists of cases and provisions considered and of counsel, and the judgment itself. Only the judgment has authority; the headnote is the reporter's work.

2. Explain the citation AIR 1987 SC 1086 and (1997) 1 SCC 416.

AIR 1987 SC 1086 means the All India Reporter for 1987, Supreme Court section, at page 1086; AIR reports every court, so the code SC identifies the Supreme Court. (1997) 1 SCC 416 means volume 1 of Supreme Court Cases for 1997, at page 416; the year is in round brackets because the volume number identifies the book and the year is merely helpful. A year in square brackets, as in [1955] 2 SCR 603, is an essential part of the reference because that series numbers its volumes afresh each year.

3. Distinguish a law report from a law magazine.

A law report contains the text of judgments, and what it prints has whatever authority the deciding court has, binding or persuasive according to the hierarchy. A law magazine or journal contains articles, case comment, legislative notes and news, written by academics and practitioners; it is secondary material, persuasive at most, and never binding. Some series carry both, which is why a citation containing "J" points at the journal section and so at an article rather than at a case.

4. What are the steps in finding a case, and which step is most often skipped?

State the proposition you need rather than a topic; start from the statutory provision and its annotations; use a digest arranged by subject and section; follow the citations in a good judgment backwards to the line behind it; use a citator to follow them forwards to later decisions; and read the judgment itself rather than the headnote. The step most often skipped is the last check, whether the case is still good law, since it may have been overruled by a larger bench, superseded by statute, referred to a larger bench, or founded on a provision since repealed.

5. Distinguish ratio decidendi from obiter dictum.

The ratio decidendi is the reason for the decision: the principle of law on which the decision rests, applied to the material facts, and it is the part that binds according to the hierarchy of courts. An obiter dictum is a thing said by the way, an observation not necessary to the result, which is persuasive only. Identifying the ratio matters most where several judges write separately, because what binds is the proposition the majority agreed upon and not the reasoning of any single opinion.

6. Why does article 141 make law reporting necessary?

Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. A rule of that kind can only work if the declarations are discoverable, so a system of reporting that records the text of judgments, indexes them and gives each a stable citation is what makes the article operative in practice. Reporting also improves the judgments themselves, because a decision written for publication is written with more care than one that will not be read outside the case.

"Regulation", section 3(50): a Regulation made by the President under article 240 of the Constitution, including one made under article 243, and a Regulation made by the Central Government under the Government of India Acts of 1870, 1915 or 1935.

"Rule", section 3(51): a rule made in exercise of a power conferred by any enactment, and it includes a Regulation made as a rule under any enactment.

"Indian law", section 3(29): any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part of it, or since then has the force of law in the specified States, but not an Act of the United Kingdom Parliament or an Order in Council.

"Commencement", section 3(13): used with reference to an Act or Regulation, the day on which the Act or Regulation comes into force.

"Section", section 3(54), and "schedule", section 3(52), each mean a section or a schedule of the Act or Regulation in which the word occurs.

How a Bill becomes an Act

Worth four lines, because it explains the dates a statute carries.

A Bill is introduced in either House. It is read, referred to committee if the House so decides, debated and voted on. Under articles 107 to 108 it must be passed by both Houses. Under article 111 it is then presented to the President, who declares that he assents or withholds assent, and may return a Bill other than a Money Bill for reconsideration, though if it is passed again he shall not withhold assent. On assent the Bill becomes an Act and is given a year and a number, as in "Act 10 of 1897".

Commencement is a separate question from assent, and is the subject of [Commencement of Statutes].

Article 123 allows the President to promulgate an Ordinance when Parliament is not in session, which has the same force as an Act but ceases to operate at the expiry of six weeks from the reassembly of Parliament unless approved.

The parts of a statute

Named here in one line each, because [Internal Aids to the Interpretation of a Statute] works them all.

Short title, long title, preamble, enacting formula, extent and commencement clause, definitions clause, the substantive sections, provisos, Explanations, exceptions and illustrations, saving and repeal clauses, and the Schedules. Sections are grouped into Chapters and Parts, and each section carries a marginal note.

The classification

By the width of what they cover

A codifying statute states the whole law on a subject in one place, replacing the earlier statute law, case law and custom on it. The Code of Civil Procedure 1908 is the standard example. The presumption is that a code is exhaustive, so a court starts from the assumption that everything on the subject is inside it.

A consolidating statute collects the existing statutory provisions scattered over several Acts into one Act, without intending to change the law. The presumption is that it does not alter the law, so an older decision on the earlier provision remains in point.

An amending statute changes an existing Act. Once it takes effect, the amendment is read into the principal Act as though it had always been in that form, so far as its operation goes. Section 6A of the General Clauses Act 1897 deals with the consequence of repealing an Act that made a textual amendment: unless a different intention appears, the repeal shall not affect the continuance of the amendment.

A declaratory statute does not change the law but declares what it always was, usually to remove a doubt or to correct what the legislature thinks was a judicial error. Its language is characteristically "shall be deemed always to have meant".

The importance of the last class is that it escapes the presumption against retrospective operation. In Commissioner of Income Tax v. Vatika Township Private Limited, decided on 15 September 2014, the Constitution Bench set that out. Facts. A proviso added to section 113 of the Income Tax Act 1961 by the Finance Act 2002 imposed a surcharge on block assessments, and the Revenue applied it to periods before it came into force. Held. Legislation modifying accrued rights or imposing new obligations or disabilities is prospective unless a contrary intent is clear; where a benefit is conferred without a corresponding detriment a purposive construction may make it retrospective, which is why procedural provisions are treated as retrospective; and the presumption does not apply to declaratory statutes, an Act being declaratory where it removes doubts as to the meaning or effect of an earlier law, the words "shall be deemed always to have meant" being in plain terms retrospective. The proviso here was onerous, so it operated prospectively. Why it matters. It ties this classification directly to the rules in [Prospective Application and Retrospective Effect].

By what they do to rights

A remedial or beneficial statute is passed to remedy a defect or to confer a benefit on a class, typically workers, tenants, consumers or women. It is construed liberally in favour of the class, and this is the family dealt with in [Taxing Statutes, Penal Statutes and Welfare Legislation].

A penal statute creates an offence and prescribes punishment. It is construed strictly. Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, is the Indian authority and is worked in that chapter.

A taxing or fiscal statute imposes a tax. Its rules of construction are their own subject, and Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company, AIR 2018 SC 3606, settled the modern position on exemptions.

An enabling statute empowers something to be done that could not lawfully be done before, and it carries with it whatever is necessary to make the power effective.

A disabling statute restricts or takes away a right that existed before.

A directory statute lays down a procedure whose breach does not invalidate what was done, as against a mandatory one whose breach does. That distinction is worked in [Interpretation of Directory and Mandatory Provisions].

By duration

A permanent statute continues until it is repealed. Most Acts are permanent, and a statute is not repealed by disuse however long it lies unused.

A temporary statute carries its own expiry date, or expires on the happening of an event. Two consequences follow and both are examinable. On expiry, section 6 of the General Clauses Act does not apply, because that section speaks of a repeal and not of an expiry, so whether pending proceedings survive depends on the Act's own saving clause. And a temporary Act can be kept alive only by a further Act extending it.

By what they operate on

Substantive statutes create, define or extinguish rights and duties. Adjective or procedural statutes prescribe how those rights are enforced. The distinction decides whether an amendment reaches a pending case, and it is worked in [Interpretation of Substantive and Adjective Statutes].

Two more classes that are often asked

A consolidating and amending statute, which is a hybrid and is very common: the long title says so in terms. Where an Act says it is to consolidate and amend, the presumption that the law is unchanged is weakened.

Statutes in pari materia, meaning Acts on the same subject matter, which may be read together as one system. That is an external aid and is worked in [External Aids to the Interpretation of a Statute].

A worked example

Parliament passes the fictitious Street Vendors Welfare Act, whose long title says it is "An Act to consolidate and amend the law relating to street vendors, to provide for their registration and for the recovery of licence fees, and to punish obstruction of a designated vending zone".

Read the long title and the classification falls out. It is a consolidating and amending Act, so the presumption that the law is unchanged is weakened and the earlier decisions must be checked against the new text. It is a welfare Act as regards registration and the vendors' rights, so those provisions are read beneficially in favour of vendors. It is a taxing Act as regards the licence fee, so the charging provision is construed strictly and any exemption in it is construed against the person claiming it. And it is a penal Act as regards obstruction, so that provision is construed strictly in favour of the accused.

One Act, four rules of construction, applied provision by provision. That is the point of the classification, and it is why "classify the statute" is never a merely decorative first paragraph.

Now suppose section 40 of the Act says the licence fee provisions "shall be deemed always to have applied from 1 April 2020". That is a declaratory form of words, and on Vatika Township the presumption against retrospectivity does not apply to a declaratory provision. Whether it truly is declaratory, or is an onerous new charge dressed up, is the argument.

Distinctions table

What these words do NOT mean

A statute is not repealed by disuse. However long an Act lies unused, it remains law until repealed or held unconstitutional. This is the practical form of the warning in [Legal Maxims: the Remaining Seven] that cessante ratione legis has no application to a statute.

"Enactment" is not a synonym for "Act". Section 3(19) makes it wider, reaching Regulations, and it also means a single provision.

A consolidating Act does not necessarily leave the law untouched. The presumption is rebuttable, and an Act described as "to consolidate and amend" announces the rebuttal on its face.

A classification is not exclusive. One Act is very often penal, welfare and fiscal in different provisions, and the rule of construction is chosen provision by provision.

An Ordinance is not a lesser law while it lasts. Under article 123 it has the same force and effect as an Act; what is different is its duration.

Limits and criticism

The classification is old and the categories overlap. Almost every modern Act is a hybrid, and treating the classes as boxes produces bad answers.

Consolidation is rarely pure. The presumption that a consolidating Act does not change the law was developed when consolidation really was mechanical, and it fits modern drafting less well.

"Declaratory" is easy to abuse. A legislature that dislikes a judicial decision can undo it retrospectively by calling the amendment declaratory, and the only check is the court's willingness to look at substance rather than at the label, which Vatika Township expressly requires.

Quick revision

Statute: a written law enacted by a competent legislature; articles 245 and 246 and the Seventh Schedule. Enactment: General Clauses Act 1897, s.3(19), includes a Regulation and any provision in an Act. Central Act, s.3(7); Regulation, s.3(50); rule, s.3(51); Indian law, s.3(29); commencement, s.3(13). Article 13(3)(a) for Part III.

Bill to Act: passed by both Houses, articles 107 and 108; assent, article 111; then a year and a number. Ordinance, article 123, six weeks from reassembly.

Classification: codifying, consolidating, amending, declaratory; remedial or beneficial, penal, taxing, enabling, disabling; mandatory and directory; permanent and temporary; substantive and adjective; consolidating and amending; in pari materia.

Why it matters: the class fixes the rule of construction. Penal, strict. Beneficial, liberal. Taxing, strict, and strict against the assessee on an exemption. Declaratory, retrospective, Vatika Township. Temporary, s.6 does not apply on expiry.

Test yourself

1. Define "enactment" and say how it differs from "Act".

Section 3(19) of the General Clauses Act 1897 provides that "enactment" shall include a Regulation and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation. It is wider than "Act" because it reaches Regulations, which are not Acts of a legislature, and it is also used of a single provision, so that one may properly speak of the enactment contained in a particular section.

2. Distinguish a codifying statute from a consolidating statute.

A codifying statute states the whole law on a subject in one place, replacing the earlier statute law, case law and custom, and it is presumed to be exhaustive, so a court begins by assuming the answer is inside it. A consolidating statute merely collects existing statutory provisions scattered over several Acts into one Act, and is presumed not to change the law, so decisions on the earlier provisions remain in point. The presumption is rebuttable, and an Act whose long title says it is to consolidate and amend announces its own rebuttal.

3. What is a declaratory statute, and why does it escape the presumption against retrospectivity?

A declaratory statute does not change the law but declares what it always was, usually to remove a doubt or to correct what the legislature regards as a judicial error, and its characteristic language is "shall be deemed always to have meant". It escapes the presumption because there is nothing retrospective about stating what the law already was; as the Constitution Bench put it in Commissioner of Income Tax v. Vatika Township Private Limited, the presumption against retrospective operation is not applicable to declaratory statutes, and a court must look at substance rather than the label.

4. Why does the classification of a statute matter in practice?

Because the class fixes the rule of construction. A penal provision is construed strictly, so a doubt goes in favour of the subject. A beneficial or welfare provision is construed liberally in favour of the class it protects. A charging provision in a taxing Act is construed strictly, and since Commissioner of Customs v. Dilip Kumar an ambiguous exemption is construed against the assessee. A consolidating Act is presumed to leave the law unchanged. One Act may be penal in one provision and beneficial in another, so the classification is applied provision by provision.

5. What happens to proceedings under a temporary Act when it expires?

Section 6 of the General Clauses Act 1897 does not assist, because it speaks of the repeal of an enactment and an expiry is not a repeal. What survives therefore depends on the temporary Act's own saving clause: if it contains one, effect is given to it, and if it does not, proceedings under it ordinarily cannot be continued after expiry. This is the practical reason a temporary Act is drafted with a saving clause and why a further Act is needed to extend its life.

6. Trace a Bill to an Act, and say why assent is not commencement.

A Bill is introduced in either House, debated and passed by both Houses under articles 107 and 108, and is then presented to the President under article 111, who declares that he assents or withholds assent and may return a Bill other than a Money Bill for reconsideration, though if it is passed again he shall not withhold assent. On assent it becomes an Act with a year and a number. Assent is not commencement because section 3(13) of the General Clauses Act 1897 defines commencement as the day on which the Act comes into force, and section 5 supplies the default only where the Act itself is silent about that day.

Pattern one: a stated date. "It shall come into force on the 1st day of April, 2024." Nothing more is needed.

Pattern two: appointed day. "It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint." The Act then does nothing at all until the notification issues. A frequent addition is that different dates may be appointed for different provisions, and for different States, so that one Act may be partly in force and partly not.

Pattern three: silence. The Act says nothing about commencement. That is where section 5 does its work.

Section 5: the default

Section 5(1): where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent, in the case of a Central Act made before the commencement of the Constitution, of the Governor General, and in the case of an Act of Parliament, of the President.

So the rule is: if the Act is silent, assent is commencement. It is only where the Act says nothing that the two dates coincide, and that is precisely why students who assume they always coincide get it wrong: they are applying the residual rule as though it were the general one.

Section 5(3): unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.

That sentence repays reading twice. It means the Act is in force from the first moment of the day of commencement, that is, from midnight at the start of that day, and not from some hour during it. An Act commencing on 1 April 2024 governs an act done at one minute past midnight on 1 April 2024.

Section 22: the gap between passing and commencement

An Act that is to be brought into force later usually needs machinery ready on the day it starts: rules made, a tribunal constituted, forms prescribed, officers appointed. If the rule-making power could not be exercised until the Act commenced, the Act would come into force with nothing in place.

Section 22 solves it. Where, by any Central Act or Regulation which is not to come into force immediately on the passing of it, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act, or with respect to the establishment of any court or office or the appointment of any Judge or officer, or with respect to the person by whom, the time when, the place where, the manner in which, or the fees for which anything is to be done under the Act, then that power may be exercised at any time after the passing of the Act; but rules, bye-laws or orders so made or issued shall not take effect till the commencement of the Act.

Two halves, and both are asked. The power may be exercised early. What is made under it lies dormant and takes effect only when the Act does.

Two related provisions worth naming

Section 23 governs a rule-making power that is expressed to be subject to previous publication, setting out how a draft is published, how long is allowed for objections and suggestions, and that the authority shall consider them.

Section 5A is printed in the Act as repealed. It dealt with the coming into operation of a Governor General's Act and was repealed by the Adaptation of Laws Order 1947.

Commencement earlier than assent: the deeming provision

This looks impossible and it is common, and it is asked directly.

The Protection of Human Rights Act, 1993 received assent on 8 January 1994, and its section 1(3) provides that it shall be deemed to have come into force on the 28th day of September, 1993, which is more than three months before the assent. How can an Act be in force before it exists?

The answer is that a legislature can date the operation of its own Act backwards. Section 1(3) is a deeming provision: it directs that the law be applied as though the Act had been in force from the earlier day. Nothing physically happened on 28 September 1993; what happened is that the Act, once made, took effect as from that day.

Two things follow, and both belong in an answer.

Section 5 has nothing to do with it. Section 5(1) supplies a date only where the Act is not expressed to come into operation on a particular day. An Act with a deeming provision is expressed, so the default never arises and the date of assent is not the date of commencement.

It is retrospective operation, and it is subject to the ordinary limits. Backdating the commencement makes the Act apply to the period between the deemed date and the assent, so everything in [Prospective Application and Retrospective Effect] applies to it: the legislature can do this because it has said so expressly, and article 20(1) still forbids it in respect of offences and punishments, so a person cannot be convicted of an offence created by an Act deemed to have commenced before they acted.

Why a legislature does it. Ordinarily because an Ordinance or a scheme was already operating from the earlier date, or because an event fixed the date and the legislation took time to pass, and the intention is that no gap should open between the two.

The three dates therefore have to be checked separately even where they look settled, and the order in which they fall is not fixed: commencement is usually after assent, it is sometimes the same day by force of section 5(1), and it is occasionally before assent by force of a deeming provision.

Commencement in stages, and provisions never commenced

Two real consequences that a good answer mentions.

Different dates for different provisions. Where the Act allows it, the Government may bring Chapter II into force this year and Chapter V next. Until a provision is notified, it is not law, and a citation of it is a citation of nothing.

A provision that is never commenced. It happens. A section can sit on the statute book for decades without ever being brought into force. It is not repealed, and it is not in force. Any answer that treats the presence of a section in the printed Act as proof that it operates is wrong, and the only safe method is the one this book follows throughout: check the commencement, not merely the text.

A worked example

The fictitious Consumer Grievances Act 2024 is passed by both Houses on 12 February 2024, receives the President's assent on 28 February 2024 and is published the same week. Section 1(3) says: "It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions." Section 30 gives the Central Government power to make rules prescribing the form of a complaint. A notification of 20 August 2024 brings sections 1 to 20 into force on 1 October 2024, and says nothing about sections 21 to 35.

When is the Act in force? Sections 1 to 20 are in force from the first moment of 1 October 2024, by section 5(3), which puts commencement at the expiration of the day preceding. Sections 21 to 35 are not in force at all.

Does section 5 apply? No. Section 5 is the default for an Act that is not expressed to come into operation on a particular day. This Act is expressed to come into force on an appointed date, so the default never arises and 28 February is not commencement.

Could the rules have been made before 1 October? Yes. Section 22 allows the rule-making power to be exercised at any time after the passing of the Act, so rules prescribing the form of a complaint could be made in, say, July. But they would not take effect until 1 October, when the Act commenced.

Is a complaint made on 30 September governed by the Act? No. On that day the Act was not in force.

And a complaint made at 12.30 a.m. on 1 October? Yes. Section 5(3) puts the Act in force from the very start of the day.

Distinctions table

What this does NOT mean

Assent is not commencement, except where the Act is silent and section 5 supplies the default.

Publication is not commencement. An Act may be published months before it is brought into force.

A section printed in the Act is not necessarily in force. Provisions can be, and are, left uncommenced.

Commencement is not retrospectivity. Commencement fixes when the Act begins to operate; whether it reaches back over events before that day is a different question, and it is the subject of [Prospective Application and Retrospective Effect].

Rules made under section 22 are not in force when they are made. They take effect when the Act does.

Limits and criticism

The appointed-day technique gives the executive control over when a law passed by the legislature begins to bind, and that is a standing constitutional criticism: Parliament decides what the law is, and the Government decides when, and sometimes whether, it is law.

Uncommenced provisions are hard to discover. The printed Act shows the text; whether a section has been notified has to be traced through Gazette notifications, and that is exactly where the error rate is highest.

Section 5(3) is precise and is rarely noticed. Many answers say an Act commences "on" a day without knowing that the statute has fixed the hour at the very start of it.

Quick revision

Commencement: General Clauses Act 1897, s.3(13), the day on which the Act or Regulation comes into force.

Three dates: passing, articles 107 and 108; assent, article 111, at which the Bill becomes an Act and takes its year and number; commencement, s.3(13).

s.5(1): where a Central Act is not expressed to come into operation on a particular day, it comes into operation on the day of assent, of the President or, before the Constitution, of the Governor General. It is the DEFAULT, not the general rule.

s.5(3): unless the contrary is expressed, an Act comes into operation immediately on the expiration of the day preceding its commencement, so it binds from the first moment of that day.

s.22: where an Act is not to come into force immediately, the power to make rules, bye-laws or orders about its application, courts, offices, appointments, persons, time, place, manner or fees may be exercised at any time after the passing of the Act, but what is made does not take effect until commencement. s.23 governs previous publication. s.5A is repealed.

Staged commencement is common; an unnotified provision is not law.

Test yourself

1. Define commencement, and distinguish it from assent.

Section 3(13) of the General Clauses Act 1897 defines commencement, used with reference to an Act or Regulation, as the day on which the Act or Regulation comes into force. Assent is the President's declaration under article 111 that he assents to a Bill passed by both Houses, at which point the Bill becomes an Act and receives its year and number. The two coincide only where the Act does not express a day of commencement, in which case section 5(1) makes the date of assent the date of commencement.

2. What does section 5(3) add, and why does it matter?

Section 5(3) provides that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. It matters because it fixes the hour: an Act commencing on 1 April is in force from the first moment of 1 April and not from some point during that day, so conduct at a minute past midnight is already governed by it.

3. Explain section 22 and the reason for it.

Section 22 provides that where a Central Act or Regulation is not to come into force immediately on its passing, and it confers a power to make rules or bye-laws, or to issue orders about the application of the Act, the establishment of a court or office, the appointment of a Judge or officer, or the person, time, place, manner or fees for anything to be done under it, that power may be exercised at any time after the passing of the Act, but what is made or issued does not take effect until the Act commences. The reason is practical: an Act brought into force later needs its rules, forms and machinery ready on the day it starts, and without section 22 they could not lawfully be made in advance.

4. An Act says it shall come into force on a date to be notified, and no notification has issued. Is a person bound by it?

No. Until the notification appoints a date, the Act is not in force, and conduct before that date is not governed by it. Section 5 does not assist, because it applies only where the Act is not expressed to come into operation on a particular day, and an Act commencing on an appointed date is so expressed. The Act remains on the statute book, and until commencement it imposes no obligation on anybody.

5. Can part of an Act be in force and part not?

Yes, wherever the commencement provision permits different dates to be appointed for different provisions, which is a common drafting form. The Government may then bring some chapters into force and leave others for later, and a provision that has not been notified is not law however long it has been printed in the Act. It follows that citing a section requires checking that it has been brought into force, and not merely that it appears in the text.

6. Distinguish commencement from retrospective operation.

Commencement answers when an Act begins to operate at all; retrospective operation answers whether, once it operates, it reaches back over events that occurred before that day. An Act commencing on 1 April 2024 ordinarily governs only what happens from that day, because of the presumption that a statute speaks to the future, and it will reach earlier events only where the legislature has said so expressly or by necessary implication, or where the provision is procedural, beneficial without detriment, or declaratory.

Retrospective, sometimes retroactive, means operating on events that occurred before the Act came into force, so as to change their legal consequences.

Retroactive in a weaker sense: a statute is not retrospective merely because it takes account of a past fact in fixing a future consequence. An Act that disqualifies from a future election anybody convicted in the past looks backwards for the fact and operates forwards for the consequence. Getting this right avoids the commonest confusion in the topic.

The general rule

A statute is presumed to be prospective. The presumption is displaced only where the legislature has said otherwise expressly or by necessary implication.

"Necessary implication" is a high standard. It is not satisfied because retrospective operation would be convenient, or because the object of the Act would be better served. It is satisfied where the provision cannot sensibly work at all unless it reaches back.

The classic express forms are "shall be deemed to have come into force on", "shall always be deemed to have been" and "shall be deemed always to have meant". The last of these, as Vatika Township records, is in plain terms retrospective and is the language of a declaratory provision.

The exceptions

There are four, and an answer that names all four is complete.

One: procedure

Nobody has a vested right in procedure. A change in the manner of enforcing a right, as opposed to the right itself, applies to pending proceedings.

So an amendment altering the court in which an appeal lies, the form of an application, or the mode of service, is applied at once. An amendment altering the period of limitation is treated with more care, because a change that destroys an accrued right of action goes beyond procedure.

This exception connects directly to [Interpretation of Substantive and Adjective Statutes], where the substance of the distinction is worked.

Two: a benefit conferred without a corresponding detriment

Vatika Township states it: where a legislation confers a benefit on some persons without inflicting a corresponding detriment on any other person or on the public generally, and conferring that benefit appears to have been the object, a purposive construction may give the Act retrospective effect.

The example the Court gave is a doctrine of fairness working the other way round. Fairness is what makes a burden prospective; fairness is also what allows a benefit to reach back.

Three: a declaratory or clarificatory provision

A provision that declares what the law always was, or that removes a doubt about an earlier enactment, operates from the date of the enactment it explains. If it did not, it would have no object at all: an Act passed "to explain" an earlier Act would be pointless if it applied only from today.

Zile Singh v. State of Haryana, AIR 2004 SC 5100, is the compact illustration. Facts. Section 13A of the Haryana Municipal Act, inserted in 1994, disqualified a person with more than two living children from being a member of a municipality, with a proviso protecting a child born within one year of the commencement of the Act; a second amending Act later that year substituted "upto" for "after" in the proviso. The appellant's son was born on 13 August 1995, and whether he was disqualified turned on whether the substitution operated from the commencement of the first amending Act. Held. The substitution operated retrospectively: the presumption against retrospectivity does not apply to a declaratory or clarificatory amendment, an Act intended to explain an earlier one would be without object unless construed retrospectively, and the second amendment merely brought the text into conformity with the intent behind the first. The appellant was disqualified. Why it matters. It shows the exception applied to a substitution of a single word, and it is the case to cite for the proposition that substance and not form decides whether an amendment is clarificatory.

Four: an express provision

If the legislature says the Act reaches back, it reaches back, subject only to the Constitution.

The constitutional limits

The legislature's power to legislate retrospectively is not unlimited, and two articles matter.

Article 20(1) makes retrospective criminal law unconstitutional. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Two protections sit in that one clause and they are separate. The creation of an offence cannot reach back. The increase of a punishment cannot reach back either. Note what is not covered: a reduction of punishment is not prohibited, because the article protects the accused and not the State, and a change of procedure is not the creation of an offence.

Article 13(1) was itself held not to be retrospective. In Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128, the question was whether the Constitution wiped out a pending prosecution. Facts. The appellant was being prosecuted under sections 15 and 18 of the Indian Press (Emergency Powers) Act 1931 for a pamphlet published in 1949, and the Constitution came into force while the prosecution was pending; he argued that article 13(1), which declares laws inconsistent with fundamental rights void, destroyed the Act and with it the prosecution. Held. By five to two, article 13(1) is not retrospective: it does not make an existing law void from the beginning, but renders it ineffectual and void only with respect to the exercise of fundamental rights on and after the commencement of the Constitution, so an act done before the Constitution which was an offence under a law then valid could still be prosecuted and punished. Fazl Ali and Mukherjea JJ. dissented. Why it matters. It applies the presumption against retrospectivity to the Constitution itself, and it is a clean example of a majority and a minority for the purposes of [Indian Young Lawyers Association v. State of Kerala].

Where section 6 fits

A repeal is the sharpest form of a law reaching backwards, because it removes the law under which things were done. Section 6 of the General Clauses Act 1897 is the standing answer: unless a different intention appears, a repeal shall not revive anything not in force, affect the previous operation of the repealed enactment or anything duly done or suffered under it, affect any right, privilege, obligation or liability acquired, accrued or incurred under it, affect any penalty, forfeiture or punishment incurred for an offence against it, or affect any investigation, legal proceeding or remedy in respect of any of those, and any such proceeding may be continued as if the repealing Act had not been passed.

Section 6 is worked in full in [Repeal of Statutes, and the Provisions Dealing with Repeal under the General Clauses Act]. What matters here is the relationship: section 6 is the presumption against retrospectivity applied to repeals, and the words "unless a different intention appears" are the same escape as the general rule's.

A worked example

The fictitious Building Regulation (Amendment) Act 2026 receives assent on 1 June 2026 and contains three provisions.

Section 2 raises the penalty for unauthorised construction from one lakh to five lakh rupees. Devang built without sanction in 2023. Article 20(1) settles it: he cannot be subjected to a penalty greater than that which might have been inflicted under the law in force when he built. Five lakhs cannot be imposed on him, and this is not a presumption that the legislature could displace, it is a constitutional bar.

Section 3 transfers appeals from the Collector to a new appellate tribunal. Devang's appeal was pending before the Collector on 1 June. This is procedure, and nobody has a vested right in the forum, so the appeal goes to the tribunal. If, however, the section had abolished the right of appeal altogether, that would touch a vested right and would not be applied to a pending appeal without clear words.

Section 4 says that section 12 of the principal Act "shall be deemed always to have meant" that a compound wall is not a building. That is declaratory in form. On Vatika Township and Zile Singh it operates from the commencement of the principal Act, provided that in substance it clarifies rather than imposes a new burden under the guise of clarification.

And suppose section 5 waived arrears of licence fee for all owners for the years 2021 to 2025. That confers a benefit without a corresponding detriment on anybody, so the second exception in Vatika Township allows it to be read as reaching back even without express words.

Four provisions in one Act, and four different answers. That is the shape of a full-mark answer on this topic.

Distinctions table

What this does NOT mean

Retrospective is not the same as commencement. Commencement fixes when an Act starts operating; retrospectivity asks whether it reaches back once it does. See [Commencement of Statutes].

Article 20(1) does not forbid a reduction of punishment. It protects the accused, not the State.

A statute that looks at a past fact is not automatically retrospective. Disqualifying from a future election a person convicted in the past uses a past fact for a future consequence.

"Necessary implication" is not "it would make more sense". It means the provision cannot work at all unless it reaches back.

Calling an amendment declaratory does not make it so. Vatika Township requires regard to substance rather than to form.

Limits and criticism

"Declaratory" is the standing route around the presumption. A legislature that dislikes a decision can undo it retrospectively by describing the amendment as clarificatory, and the only check is the court's willingness to look behind the label.

The procedural exception is not as clean as it sounds. A change in limitation, in evidence or in the burden of proof can be described as procedural and can destroy a claim as surely as an amendment to the substantive right.

Article 20(1) protects against offences and punishments and nothing else. A retrospective tax, a retrospective civil liability and a retrospective disqualification are all constitutionally possible, and the only protection against them is the presumption, which the legislature can displace.

Quick revision

The rule: a statute is presumed prospective. Nova constitutio futuris formam imponere debet, non praeteritis. Displaced only by express words or necessary implication.

The reason: fairness. Vatika Township, Constitution Bench, 15 September 2014.

Four exceptions: procedure, because there is no vested right in it; a benefit conferred without a corresponding detriment; a declaratory or clarificatory provision, Zile Singh; and an express provision.

Constitutional limits: article 20(1), no conviction except for violation of a law in force at the time, and no greater penalty than that then available; a reduction is not barred. Article 13(1) is itself prospective, Keshavan Madhava Menon, five to two.

Repeals: General Clauses Act s.6 is this presumption applied to repeals, and it carries the same "unless a different intention appears".

Test yourself

1. State the presumption against retrospective operation and its basis.

A statute is presumed to operate prospectively, that is, on events occurring after it comes into force, and it is not read as affecting things already done or rights already accrued unless the legislature has said so expressly or by necessary implication. The maxim is nova constitutio futuris formam imponere debet, non praeteritis. Its basis, as the Constitution Bench put it in Commissioner of Income Tax v. Vatika Township Private Limited, is fairness: people order their affairs by the law as it stands, and legislation which modifies accrued rights or imposes new obligations or disabilities must therefore be treated as prospective unless a contrary intent is clear.

2. Name the four exceptions to the presumption.

Procedure, because nobody has a vested right in the manner of enforcing a right, so a procedural amendment applies to pending proceedings. A benefit conferred on some persons without a corresponding detriment to anybody else or to the public, where conferring the benefit appears to have been the object. A declaratory or clarificatory provision, which operates from the date of the enactment it explains because it would otherwise be without object. And an express provision, where the legislature has said in terms that the Act reaches back, subject to the Constitution.

3. What does article 20(1) protect against, and what does it not?

It provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at that time. So it bars the retrospective creation of an offence and the retrospective increase of a punishment. It does not bar a retrospective reduction of punishment, because it protects the accused and not the State; and it does not reach retrospective civil liability, taxation or disqualification, against which the only protection is the presumption, which the legislature may displace.

4. Explain the decision in Keshavan Madhava Menon v. State of Bombay.

The appellant was being prosecuted under the Indian Press (Emergency Powers) Act 1931 for a pamphlet published in 1949, and the Constitution came into force while the prosecution was pending; he argued that article 13(1) destroyed the Act and the prosecution with it. By five to two the Court held that article 13(1) is not retrospective: it does not make an existing law void from the beginning but renders it ineffectual only as regards the exercise of fundamental rights on and after the commencement of the Constitution, so an act done earlier, which was an offence under a law then valid, could still be prosecuted and punished. Fazl Ali and Mukherjea JJ. dissented.

5. When is an amendment treated as clarificatory, and what turns on it?

An amendment is clarificatory where in substance it removes a doubt about the meaning or effect of an earlier provision or brings the text into conformity with the intent already behind it, rather than imposing a new burden. What turns on it is that the presumption against retrospectivity does not apply, so the amendment operates from the commencement of the provision it explains. Zile Singh v. State of Haryana is the illustration: the substitution of "upto" for "after" in a proviso was held to be clarificatory and to operate from the commencement of the earlier amending Act, disqualifying the appellant.

6. Is a statute retrospective because it takes account of something that happened in the past?

Not necessarily. A statute is retrospective only where it changes the legal consequences of past events. A provision that uses a past fact as the trigger for a future consequence, such as disqualifying from a future election a person convicted at some earlier time, looks backwards for the fact and operates forwards for the consequence, and it is not retrospective in the sense the presumption is concerned with. Confusing the two is the commonest error on this topic.

Partial repeal, where only some sections go, and repeal by substitution, where a provision is replaced with a new one in the same place.

Repeal and re-enactment, where the same subject is legislated afresh. This is the most important case in practice because it is what happened to the Indian Penal Code 1860, the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872 in 2023, and it is dealt with by sections 8 and 24.

Section 6, taken apart

The section has an opening condition and five clauses, and the marks are in setting them out separately.

The condition: "unless a different intention appears". Section 6 is a default. If the repealing Act itself provides otherwise, that provision governs. So the first question in any repeal problem is not "what does section 6 say" but "what does the repealing Act say", and section 6 fills whatever the repealing Act leaves open.

Clause (a): no revival. The repeal shall not revive anything not in force or existing at the time at which the repeal takes effect. If Act A repealed Act B, and Act C now repeals Act A, Act B does not come back to life.

Clause (b): the previous operation is untouched. The repeal does not affect the previous operation of the repealed enactment or anything duly done or suffered under it. A licence granted under the old Act remains a licence that was granted; an assessment made under it remains made.

Clause (c): accrued rights and liabilities survive. The repeal does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment. Those three verbs are the heart of the section. Note the symmetry: it saves liabilities as well as rights, so a person cannot escape a debt owed under the old Act by pointing to its repeal.

Clause (d): penalties survive. The repeal does not affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the repealed enactment.

Clause (e): proceedings and remedies survive, and may be started afresh. The repeal does not affect any investigation, legal proceeding or remedy in respect of any of the above, and any such investigation, proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.

Clause (e) does more work than students notice. It does not merely preserve pending proceedings; it allows a proceeding to be instituted after the repeal, in respect of something done before it.

The one distinction that decides most section 6 problems

A right accrued is saved. A mere hope, expectation or existing right that had not accrued to the particular person is not.

The test is whether, at the moment of repeal, the person had something that had already become theirs, or merely the benefit of a rule that might have operated in their favour later. A judgment debt is accrued. A right of appeal is generally treated as accruing when the proceeding is instituted, not when the appeal is filed. An expectation that a concession would continue is not accrued at all.

Section 6A: repealing an amending Act

This one confuses everybody the first time and it is simple once seen.

Suppose Act X of 2010 amended the principal Act by substituting the word "thirty" for "fifteen" in section 4. In 2020 Parliament repeals Act X, as part of a housekeeping Act clearing out spent amending Acts. Does section 4 revert to "fifteen"?

Section 6A: where any Central Act or Regulation repeals any enactment by which the text of a Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

So the answer is no: section 4 still reads "thirty". The reason is that once an amending Act has done its work, the amendment lives in the principal Act, and the amending Act is spent. Repealing a spent Act is tidying, and it does not undo what the Act did.

Section 7: revival must be express

Section 7(1): in any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.

Section 7(2) extends the rule to all Central Acts made after 3 January 1868 and all Regulations made on or after 14 January 1887.

Read section 7 with section 6(a) and the position is complete. Section 6(a) says a repeal does not revive; section 7 says that if the legislature does want to revive something, it must say so in terms. Revival by implication does not exist.

Section 8: references to a repealed provision

Section 8(1): where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

This is the provision that keeps the statute book from disintegrating. Hundreds of Acts refer to sections of other Acts. When one of those Acts is replaced, section 8 redirects every reference automatically, so that a reference in a 1970 Act to a section of a Code replaced in 2023 is read as a reference to the corresponding provision of the new Code.

Section 8(2) does the same for provisions repealed and re-enacted by a United Kingdom Act before 15 August 1947.

The limits are worth naming. Section 8 applies where a provision is repealed and re-enacted, so it does not help where a provision is simply repealed and nothing takes its place; and it operates only where the re-enacted provision genuinely corresponds, since it cannot supply a correspondence that does not exist.

Section 24: what was made under the old Act

Section 24: where any Central Act or Regulation is repealed and re-enacted, with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until superseded by something made or issued under those provisions.

The practical importance is enormous. When a Code is replaced, the rules, forms, notifications and appointments made under the old one do not vanish; they carry over and are treated as made under the new one, so far as they are consistent with it, until they are replaced.

Repeal is not the only way a statute stops operating

Three others, and confusing them with repeal is a standing error.

Expiry of a temporary Act. Section 6 does not apply, because it speaks of a repeal; what survives depends on the Act's own saving clause. See [Statutes: Meaning and Classification].

A declaration of unconstitutionality. A law inconsistent with the fundamental rights is void under article 13, which is not a repeal by the legislature but a consequence declared by a court. Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128, decided that article 13(1) does not operate retrospectively; the case is worked in [Prospective Application and Retrospective Effect].

Disuse. It is not a way at all. A statute does not lapse because nobody has used it. See [Legal Maxims: the Remaining Seven].

A worked example

The Indian Penal Code 1860 was replaced by the Bharatiya Nyaya Sanhita 2023, and the Code of Criminal Procedure 1973 by the Bharatiya Nagarik Suraksha Sanhita 2023, with effect from 1 July 2024. Sunil is alleged to have committed an offence on 3 March 2024 and is charged in 2026.

Which law applies to the offence itself? The Penal Code as it stood on 3 March 2024. Section 6(c) and (d) save the liability incurred and the punishment incurred under the repealed enactment, and article 20(1) of the Constitution would in any event forbid convicting him under a law not in force when he acted.

Can he be prosecuted at all, the Code having gone? Yes. Section 6(e) provides that any legal proceeding in respect of such a liability or punishment may be instituted, continued or enforced as if the repealing Act had not been passed. Instituting a prosecution in 2026 for an offence of March 2024 is exactly what that clause permits.

Under which procedure is he tried? Here the answer comes from the repealing Act's own saving provision and not from section 6, because the first question is always what the repealing Act says. Where the new Code makes its own transitional provision for pending and future proceedings, that provision governs; section 6 fills only what is left open.

What about the rules and forms made under the old Code? Section 24 carries them over: they continue in force so far as they are not inconsistent with the re-enacted provisions, and are deemed made under them until superseded.

And a 1985 Act that says "an offence punishable under section 420 of the Indian Penal Code"? Section 8 redirects the reference to the corresponding provision of the Sanhita, because the provision was repealed and re-enacted.

Finally, suppose in 2027 Parliament repeals the amending Act that had inserted a section into the old Code in 2013. Section 6A applies: repealing a spent amending Act does not undo the amendment it made.

Distinctions table

What this does NOT mean

Section 6 is not a rule the repealing Act cannot displace. It opens with "unless a different intention appears", so the repealing Act's own provisions come first.

A repeal does not revive an earlier repealed Act. Section 6(a), reinforced by section 7's requirement that revival be express.

Repealing an amending Act does not undo the amendment. Section 6A.

Section 8 does not save a reference where nothing was re-enacted. It applies to repeal and re-enactment.

Expiry is not repeal, so section 6 does not apply to a temporary Act that has run out.

Limits and criticism

Section 6 turns on the phrase "unless a different intention appears", and that phrase is litigated constantly, because whether the repealing Act shows a different intention is a question of construction on which reasonable people differ.

"Accrued" is not defined, and the line between an accrued right and a mere expectation has been drawn case by case for over a century.

Section 24 preserves the old rules only "so far as not inconsistent", which means that after a major re-enactment nobody can say with confidence which of the old rules still stand until a court has been asked.

Quick revision

Kinds: express, implied, partial, by substitution, and repeal with re-enactment. Implied repeal is not favoured; generalia specialibus non derogant.

s.6, unless a different intention appears: (a) no revival; (b) previous operation and anything duly done or suffered unaffected; (c) rights, privileges, obligations and liabilities acquired, accrued or incurred unaffected; (d) penalties, forfeitures and punishments incurred unaffected; (e) investigations, proceedings and remedies unaffected and may be instituted, continued or enforced, and punishment imposed, as if the repealing Act had not been passed.

s.6A: repealing an Act that amended a text by omission, insertion or substitution does not affect the continuance of the amendment.

s.7: revival must be expressly stated.

s.8: references to a repealed provision are read as references to the re-enacted provision, where there has been repeal AND re-enactment.

s.24: appointments, notifications, orders, schemes, rules, forms and bye-laws continue so far as not inconsistent, deemed made under the re-enacted provisions, until superseded.

Not repeal: expiry of a temporary Act, a declaration of unconstitutionality, disuse.

Test yourself

1. Set out the effect of section 6 of the General Clauses Act 1897.

Unless a different intention appears, the repeal of an enactment shall not revive anything not in force or existing when the repeal takes effect; shall not affect the previous operation of the repealed enactment or anything duly done or suffered under it; shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under it; shall not affect any penalty, forfeiture or punishment incurred for an offence against it; and shall not affect any investigation, legal proceeding or remedy in respect of any of those. Any such investigation, proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment imposed, as if the repealing Act had not been passed.

2. Why is section 6 necessary?

Because at common law a repeal destroyed the statute as though it had never existed, so prosecutions collapsed, accrued rights evaporated and pending proceedings abated. Every repealing Act therefore needed its own saving clause, and an omission by the draftsman deprived people of rights for reasons unconnected with the merits. Section 6 supplies that saving once and for all, with the result that a repeal operates prospectively, which is the presumption against retrospectivity applied to repeals.

3. Does repealing an amending Act undo the amendment it made?

No. Section 6A provides that where a Central Act or Regulation repeals an enactment by which the text of a Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment which was in operation at the time of the repeal. Once an amending Act has done its work the amendment lives in the principal Act and the amending Act is spent, so repealing it is housekeeping.

4. Can a repealed Act be revived by implication?

No. Section 6(a) provides that a repeal does not revive anything not in force or existing when the repeal takes effect, and section 7(1) requires that, for the purpose of reviving wholly or partially any enactment wholly or partially repealed, the purpose be expressly stated. Revival is therefore only ever express, and the two provisions read together leave no room for an argument that repealing a repealing Act brings the original back.

5. What happens to a reference, in one Act, to a section of another Act that has since been replaced?

Section 8(1) provides that where an enactment repeals and re-enacts, with or without modification, a provision of a former enactment, references in any other enactment or instrument to the provision repealed shall, unless a different intention appears, be construed as references to the provision re-enacted. So the reference is redirected automatically. The limit is that there must have been repeal and re-enactment: where a provision is repealed and nothing corresponding takes its place, section 8 has nothing to redirect the reference to.

6. A Code is replaced. What becomes of the rules and forms made under the old Code?

Section 24 provides that where a Central Act or Regulation is repealed and re-enacted, with or without modification, then, unless otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act shall, so far as it is not inconsistent with the re-enacted provisions, continue in force and be deemed to have been made or issued under those provisions, unless and until superseded. The practical effect is that administration continues without interruption, and the qualification "so far as not inconsistent" is what has to be tested rule by rule.

Two tenses have no ordinary passive form: the present perfect continuous and the past perfect continuous. A sentence such as "The Judge has been writing the judgment" is not turned into a passive in ordinary English, and the correct answer to a question asking for one is to say so.

Sentences with two objects

Some verbs take two objects, a direct one and an indirect one: give, offer, grant, award, pay, teach, send.

Active: The Court awarded the plaintiff costs.

Either object can become the subject, so there are two correct passives: The plaintiff was awarded costs by the Court. Costs were awarded to the plaintiff by the Court.

Notice that when the direct object becomes the subject, the indirect object usually takes "to".

Questions, negatives and commands

A question keeps its question form. Active: Did the Magistrate frame the charge? Passive: Was the charge framed by the Magistrate?

Active: Who wrote this affidavit? Passive: By whom was this affidavit written?

A negative stays negative. Active: The prosecution did not prove the case. Passive: The case was not proved by the prosecution.

An imperative uses "let" or "should". Active: File the written statement. Passive: Let the written statement be filed.

Active: Do not disturb the possession. Passive: Let not the possession be disturbed.

When to use each

Use the active when you want to say who did it, and when the sentence would otherwise be limp. "The Court held" is better than "It was held by the Court" wherever the identity of the court matters.

Use the passive when the doer is unknown, unimportant, or deliberately not named, and when the thing done matters more than the doer. Statutes use it because a rule addressed to everybody has no particular doer: "the plaint shall be rejected" does not need to say by whom.

That last point is worth a sentence in an examination answer, because it shows you understand why the law is written the way it is rather than merely how to swap the words round.

Five errors to avoid

Forgetting the participle. "The appeal was dismiss" is wrong; it is "was dismissed".

Changing the tense. "The Court dismissed the appeal" becomes "was dismissed", never "is dismissed".

Making an intransitive verb passive. A verb with no object cannot be turned round: "The witness arrived" has no passive.

Dropping "by" where it is needed. Omit the agent only where it genuinely does not matter.

Turning "have to" and "used to" mechanically. These need care: "The Registrar has to sign the decree" becomes "The decree has to be signed by the Registrar".

Direct and indirect speech

The two forms

Direct speech reproduces the exact words, inside inverted commas, after a comma: The Judge said, "I will deliver the judgment tomorrow."

Indirect speech reports them in the reporter's own words, without inverted commas, usually with "that": The Judge said that he would deliver the judgment the next day.

The changes, in order

Work through them in this order every time and you will not go wrong.

One, the reporting verb. Choose the right one: said, told, asked, ordered, requested, advised, warned. Note the difference between "said" and "told": you say something, and you tell somebody. "He said that" and "He told me that", never "He said me that".

Two, remove the inverted commas and the comma, and add "that" for a statement.

Three, change the pronouns to suit the reporter. First person follows the speaker, second person follows the person addressed, third person does not change.

Four, change the tense, if the reporting verb is in the past.

Five, change the words of nearness to words of distance.

The tense table for reported speech

If the reporting verb is in the past tense, the tense of the reported words goes one step back.

Three exceptions to the backshift, and naming them earns marks.

If the reporting verb is in the present or future tense, the tense of the reported words does not change: He says, "The suit is barred." becomes He says that the suit is barred.

If the reported words state a universal truth or a permanent fact, the tense does not change: The teacher said, "Article 141 binds all courts." becomes The teacher said that article 141 binds all courts.

If the reported words describe a past event fixed to a stated time, the past tense is often kept: He said, "The Constitution came into force in 1950." becomes He said that the Constitution came into force in 1950.

The words of nearness

Questions, commands and exclamations

Each has its own pattern, and this is where most marks are lost.

A question. Drop "that". Turn the question back into statement order. Use "asked" or "enquired". If it can be answered yes or no, join with if or whether; if it begins with a question word, keep that word as the joining word.

The Magistrate asked, "Do you plead guilty?" becomes The Magistrate asked whether he pleaded guilty.

Counsel asked, "When was the notice served?" becomes Counsel asked when the notice had been served.

Note that the question mark disappears and the inverted word order goes with it. "He asked when was the notice served" is wrong.

A command or request. Use "ordered", "commanded", "requested", "advised", "warned", and join with to, or not to for a negative.

The Court said to the parties, "File your affidavits." becomes The Court ordered the parties to file their affidavits.

The Judge said, "Do not interrupt the witness." becomes The Judge told him not to interrupt the witness.

An exclamation. Use "exclaimed with joy", "exclaimed with sorrow", "exclaimed with surprise", and turn the exclamation into a statement.

The accused said, "Alas! I have lost everything." becomes The accused exclaimed with sorrow that he had lost everything.

A sentence with "let". Where "let" expresses a proposal, use "suggested" or "proposed" with "should".

He said, "Let us settle the matter." becomes He suggested that they should settle the matter.

A worked example

Take one sentence from a judgment and run both transformations on it.

Original, active and direct: The Magistrate said to the accused, "The prosecution has proved the charge against you today."

Into indirect speech. The reporting verb is "said to", which becomes "told". Remove the inverted commas and add "that". "you" becomes "him". The reporting verb is past, so the present perfect "has proved" backshifts to the past perfect "had proved". "today" becomes "that day".

Result: The Magistrate told the accused that the prosecution had proved the charge against him that day.

Into the passive, in its direct form. The object of the reported clause is "the charge". "has proved" is present perfect, so the passive is "has been proved". The agent is "the prosecution".

Result: The Magistrate said to the accused, "The charge against you has been proved by the prosecution today."

Both together. Apply the passive inside the reported clause and then backshift.

Result: The Magistrate told the accused that the charge against him had been proved by the prosecution that day.

Notice what happened at each step and nothing else changed. That is the discipline the question is testing.

What these do NOT mean

The passive is not a mistake. Advice to "write in the active voice" is advice about style in ordinary prose. Statutes are drafted in the passive on purpose, and an answer that calls the passive an error is wrong.

Reported speech is not a paraphrase. The changes are mechanical, and the substance must survive intact. A reporter who changes the meaning has not converted the sentence, he has altered the evidence.

The tense does not always backshift. Three exceptions: a present or future reporting verb, a universal truth, and a past event tied to a stated time.

"Said" and "told" are not interchangeable. You say something; you tell somebody.

A reported question is not a question. It takes statement word order and no question mark.

Quick revision

Passive: object becomes subject, verb becomes the right tense of "be" plus past participle, old subject goes after "by". No passive for the present perfect continuous or the past perfect continuous, and none for an intransitive verb. Two objects give two passives. Imperative uses "let". Question keeps question form.

Indirect speech: choose the reporting verb; drop the inverted commas; add "that" for a statement, "if" or "whether" or the question word for a question, "to" or "not to" for a command; change pronouns; backshift the tense if the reporting verb is past; change now to then, today to that day, tomorrow to the next day, here to there, this to that, ago to before.

Three no-backshift cases: present or future reporting verb, universal truth, past event fixed to a stated time.

Test yourself

1. Change into the passive voice: "The Court has rejected the plaint."

The plaint has been rejected by the Court. The tense is present perfect, so the passive is formed with "has been" and the past participle "rejected"; the object of the active sentence becomes the subject and the agent follows "by".

2. Change into the passive voice: "Did the Magistrate examine the complainant on oath?"

Was the complainant examined on oath by the Magistrate? The sentence is a question in the simple past, so the passive keeps the question form and uses "was" with the past participle "examined"; the object becomes the subject and the agent follows "by".

3. Change into the active voice: "The written statement must be filed within thirty days."

The defendant must file the written statement within thirty days. The passive gives no agent, so an appropriate subject has to be supplied when converting; the modal "must" is retained and the participle "be filed" becomes the plain form "file".

4. Change into indirect speech: "The witness said, 'I saw the accused near the shop yesterday.'"

The witness said that he had seen the accused near the shop the previous day. The reporting verb is past, so the simple past "saw" backshifts to the past perfect "had seen"; the first person pronoun becomes third person; and "yesterday" becomes "the previous day".

5. Change into indirect speech: "The Judge said to the clerk, 'Bring the file at once.'"

The Judge ordered the clerk to bring the file at once. A command is reported with a reporting verb such as ordered, told or directed, joined by "to" with the plain form of the verb; the inverted commas and the imperative form disappear, and no "that" is used.

6. Change into indirect speech: "Counsel asked, 'Is the suit barred by limitation?'"

Counsel asked whether the suit was barred by limitation. A question capable of a yes or no answer is joined by "if" or "whether"; the interrogative word order becomes statement order; the question mark disappears; and the present tense backshifts to the past because the reporting verb is in the past.

"Very few" sentences convert like this: Very few statutes are as detailed as the Code of Civil Procedure. becomes The Code of Civil Procedure is more detailed than most other statutes. becomes The Code of Civil Procedure is one of the most detailed statutes.

Notice the difference between "than any other", which gives the superlative, and "than most other", which gives "one of the most". Confusing them is the standard error.

Four rules that catch people out

"Than any other", not "than any". Delhi is larger than any other city is right; larger than any city would include Delhi itself.

Some adjectives have no degrees, because the quality is absolute: unique, perfect, complete, eternal, supreme, void. A thing is not "more void" or "most unique". A statute is void or it is not.

Latin comparatives take "to", not "than": superior to, inferior to, senior to, junior to, prior to, anterior to, posterior to. A decree is superior to an order in effect, never "superior than".

Do not double the comparison. "More stronger" and "most strongest" are wrong.

Kinds of sentence

MU names six. Four are classifications by function and two by polarity, and saying so in an answer shows you understand the list rather than merely reciting it.

By function

Assertive or declarative. It states something and ends with a full stop. The plaint was rejected under Order VII rule 11.

Interrogative. It asks a question and ends with a question mark. It is formed either by inversion, putting the auxiliary before the subject, or by an interrogative word. Was the plaint rejected? Why was the plaint rejected?

Imperative. It commands, requests or advises. The subject "you" is understood and not written, and it ends with a full stop or an exclamation mark. File the written statement within thirty days. Please produce the original agreement.

Exclamatory. It expresses sudden feeling and ends with an exclamation mark. It commonly begins with "What" or "How". What a clear judgment this is! How quickly the matter was decided!

By polarity

Positive or affirmative. It affirms. The appeal lies to the High Court.

Negative. It denies, using not, no, never, none, neither, nor, or a negative word such as "seldom" or "hardly". The appeal does not lie to the High Court.

Every sentence has both a function and a polarity: Was the appeal not dismissed? is interrogative and negative at the same time. That is why the six are not one list of six exclusive categories, and an answer that notices this is a better answer.

Transformation between the kinds

The paper asks for this, so the patterns matter.

Assertive to interrogative, using a rhetorical question of the opposite polarity. Everybody knows that article 141 binds all courts. becomes Who does not know that article 141 binds all courts?

Interrogative to assertive. Is there any use in appealing? becomes There is no use in appealing.

Assertive to exclamatory. The judgment is very clear. becomes How clear the judgment is! It was a very long trial. becomes What a long trial it was!

Note the two patterns: "How" before an adjective or adverb, "What" before a noun phrase with "a" or "an".

Exclamatory to assertive. How unjust the order was! becomes The order was very unjust.

Assertive to imperative. You should file the appeal in time. becomes File the appeal in time.

Positive to negative, keeping the meaning, which is the harder version and the one that is set. The witness was truthful. becomes The witness was not untruthful. Every court must give reasons. becomes No court can refuse to give reasons. He is the best advocate here. becomes No other advocate here is as good as he is.

By clause structure, which is worth two lines

Some papers use a second classification, and knowing it costs nothing.

Simple: one independent clause. The suit was dismissed.

Compound: two or more independent clauses joined by a coordinating conjunction. The suit was dismissed and the appeal was filed.

Complex: one independent clause with one or more subordinate clauses. The suit was dismissed because it was barred by limitation.

Compound-complex: at least two independent clauses and at least one subordinate clause. The suit was dismissed because it was barred, but the appellate court remanded it.

Transformation between simple, compound and complex

The paper does not only ask you to name these; it asks you to convert one into another. The patterns are mechanical.

Simple to compound. Expand the phrase into a clause and join with a coordinating conjunction: and, but, or, so, for, yet. Being ill, he could not appear for the examination. becomes He was ill and he could not appear for the examination.

Simple to complex. Expand the phrase into a subordinate clause introduced by a subordinating conjunction: that, because, although, if, when, so that, since. Being ill, he could not appear for the examination. becomes Because he was ill, he could not appear for the examination.

Complex to simple. Contract the subordinate clause into a phrase, usually a participle, an infinitive or a noun phrase. He was so ill that he could not appear for the examination. becomes He was too ill to appear for the examination.

Compound to simple. He was ill and so he could not appear for the examination. becomes Being ill, he could not appear for the examination.

Compound to complex. He was ill and so he could not appear for the examination. becomes Since he was ill, he could not appear for the examination.

Complex to compound. Although the notice was late, the court condoned the delay. becomes The notice was late but the court condoned the delay.

Three patterns are set so often that they are worth learning as formulas.

"so ... that" gives "too ... to". The case was so weak that it could not succeed. becomes The case was too weak to succeed.

"so ... that" also gives "enough to", where the sense is positive. The affidavit was so clear that it was accepted. becomes The affidavit was clear enough to be accepted.

"As soon as" gives an "On" phrase. As soon as the decree was passed, the defendant appealed. becomes On the passing of the decree, the defendant appealed.

A test that saves marks: count the finite verbs. A simple sentence has one. A compound sentence has two or more, all independent. A complex sentence has one independent and at least one subordinate. If your converted sentence has the wrong number of finite verbs, the conversion is wrong.

Question tags

The basic rule

A question tag is a short question added to a statement, made of an auxiliary verb and a pronoun, and separated by a comma.

The rule of opposites: a positive statement takes a negative tag, and a negative statement takes a positive tag.

The appeal lies to the High Court, doesn't it? The appeal does not lie to the High Court, does it?

How the tag is built

One, use the auxiliary from the statement. If the statement has one, repeat it. The plaint has been rejected, hasn't it? He can appeal, can't he?

Two, if there is no auxiliary, use the right form of "do". The Court dismissed the appeal, didn't it? She files her returns on time, doesn't she?

Three, use a pronoun in the tag, never a noun. The Magistrate framed the charge, didn't he? and not "didn't the Magistrate?"

Four, reverse the polarity, as above.

The special cases, which are what the paper tests

"I am" takes "aren't I". I am right, aren't I?

An imperative takes "will you", or "won't you" for a polite invitation. File the affidavit, will you? Have a seat, won't you?

"Let us" takes "shall we". Let us settle the matter, shall we?

"Let me" and "let him" take "will you". Let me explain, will you?

A statement containing a negative word takes a positive tag, even though the word "not" does not appear. This is the one students miss. The words that count as negatives include: never, seldom, rarely, hardly, scarcely, barely, few, little, none, nobody, nothing, no one and neither. He hardly ever appears in court, does he? Nobody objected, did they? There is little hope of success, is there?

"Everyone", "somebody", "nobody", "no one" and "none" take "they" in the tag. Everyone signed the memo, didn't they?

"Everything", "something", "nothing" and "anything" take "it". Nothing was proved, was it?

"This" and "that" take "it"; "these" and "those" take "they". That is the decree, isn't it? Those are the exhibits, aren't they?

"There is" and "there are" keep "there". There is no evidence, is there?

"Used to" takes "didn't". He used to practise in Bombay, didn't he?

"Have to" takes "do". She has to file a reply, doesn't she?

"Ought to" takes "oughtn't" or "shouldn't". You ought to appear, oughtn't you?

A worked example

One statement, run through all three parts of this chapter.

Start with: The Bombay High Court delivered a very detailed judgment yesterday.

Degrees of comparison. Take the adjective "detailed". Positive: No other judgment delivered that week was as detailed as this one. Comparative: This judgment was more detailed than any other delivered that week. Superlative: This was the most detailed judgment delivered that week.

Kinds of sentence. The original is assertive and positive. Interrogative: Did the Bombay High Court not deliver a very detailed judgment yesterday? Exclamatory: What a detailed judgment the Bombay High Court delivered yesterday! Negative, keeping the sense: The Bombay High Court did not deliver a brief judgment yesterday. Imperative, from a related statement: Read the judgment of the Bombay High Court.

Question tag. The statement is positive and its verb is a simple past with no auxiliary, so the tag uses "did" in the negative, and the noun becomes a pronoun. The Bombay High Court delivered a very detailed judgment yesterday, didn't it?

And the negative version, which takes a positive tag: The Bombay High Court did not deliver a detailed judgment yesterday, did it?

What these do NOT mean

"Positive" and "negative" are not a third degree of comparison. "Positive" is the name of the first degree of an adjective and also the name for an affirmative sentence, and the two uses have nothing to do with each other. MU's list puts both in one line, and an answer should distinguish them.

A question tag is not a question. It invites agreement, and the answer expected is usually confirmation.

"Than any" is not "than any other". Without "other", the thing compares itself with itself.

An absolute adjective has no degrees. "More void", "most unique" and "more perfect" are wrong.

An imperative is not always a command. It covers requests and advice, and the polite tag "won't you" reflects that.

Quick revision

Degrees: positive, comparative, superlative. Short adjectives take -er and -est; long ones take more and most; good, better, best and bad, worse, worst are irregular. Superlative to comparative uses "than any other"; superlative to positive uses "no other ... as ... as". "Very few" gives "one of the most". Absolute adjectives have no degrees. Latin comparatives take "to".

Kinds: assertive, interrogative, imperative, exclamatory, by function; positive and negative, by polarity; simple, compound, complex, compound-complex, by structure. "How" before an adjective and "What" before a noun phrase, for exclamations.

Question tags: opposite polarity; auxiliary from the statement or the right form of "do"; a pronoun in the tag. I am, aren't I. Imperative, will you. Let us, shall we. Negative words such as never, seldom, hardly, scarcely, few, little, nobody take a positive tag. Everyone takes they; nothing takes it; there stays there.

Test yourself

1. Change into the comparative and the positive degree: "Habeas corpus is the most important writ."

Comparative: Habeas corpus is more important than any other writ. Positive: No other writ is as important as habeas corpus. The superlative goes to the comparative with "than any other", the word "other" being essential so that the thing is not compared with itself, and to the positive with "no other ... as ... as".

2. What is wrong with "This section is more unique than that one"?

"Unique" is an absolute adjective: a thing is either unique or it is not, so the quality admits of no degrees and cannot take a comparative. The same objection applies to "more perfect", "most complete" and "more void". The sentence should read "This section is unique", or, if a comparison is really intended, the adjective should be replaced with one that admits of degrees, such as "unusual".

3. Name the kinds of sentence MU lists and say how they are related.

MU lists interrogative, exclamatory, imperative, assertive, positive and negative. The first four classify a sentence by its function: asking, exclaiming, commanding and stating. The last two classify it by polarity: whether it affirms or denies. The two classifications operate together rather than in competition, so a single sentence such as "Was the appeal not dismissed?" is interrogative by function and negative by polarity at the same time.

4. Add question tags: (a) "Nobody objected." (b) "I am the appellant." (c) "Let us adjourn."

(a) Nobody objected, did they? The statement contains the negative word "nobody", so the tag is positive, and "nobody" takes "they". (b) I am the appellant, aren't I? "I am" takes the fixed tag "aren't I". (c) Let us adjourn, shall we? A "let us" proposal takes "shall we", unlike an ordinary imperative, which takes "will you".

5. Change into an exclamatory sentence: "The trial was very long."

How long the trial was! The pattern uses "How" before an adjective or adverb, followed by the subject and the verb, and ends with an exclamation mark. Where the emphasis falls on a noun phrase instead, the pattern uses "What": "What a long trial it was!"

6. Change into the negative without changing the meaning: "He is the best advocate in the court."

No other advocate in the court is as good as he is. The superlative is turned into a negative by denying the quality of every other member of the class and comparing them with the subject, which preserves the sense exactly. The commoner error is to write "He is not the best advocate", which reverses the meaning rather than transforming the sentence.

The conclusion answers the question asked. It draws the threads together and states the position the essay has argued for. It must not introduce a new argument, and it must not merely repeat the introduction in different words.

Language

Short sentences. One idea each. Ordinary words in preference to grand ones. Connectives that show the direction of the argument: however, on the other hand, moreover, consequently, nevertheless, in contrast, for that reason.

Avoid the padding that examiners see in every script: "in today's fast-moving world", "it is pertinent to note that", "last but not the least", "since time immemorial". They occupy space and add nothing.

Keep to one tense, ordinarily the present for general statements and the past for events. Do not write in the first person plural about yourself.

Comprehension

What is being tested

Four things, and the questions are usually in this order: whether you can locate information; whether you understand the meaning of words in their context; whether you can infer what is implied but not stated; and whether you can express the answer in your own words.

The method

One, read the passage once, quickly, to get the sense of it.

Two, read the questions. Now you know what you are looking for.

Three, read the passage again, slowly, and mark the place where each answer is. Number the marks to match the questions.

Four, answer from the passage and from nothing else. This is the rule most often broken. A comprehension is not an invitation to write what you know about the subject; it tests what the passage says. If the passage is wrong about the law, you answer according to the passage.

Five, answer in your own words unless the question says "quote". Copying whole sentences shows nothing.

Six, match the length to the marks. A one-mark question wants a phrase. A four-mark question wants four points or a short paragraph.

Seven, answer in complete sentences, and answer the question asked and not a nearby one.

The kinds of question, and how each is answered

Factual. "What does the passage say about X?" Locate it and restate it.

Vocabulary. "What does the word 'construe' mean as used in the passage?" Give the meaning in that context, not every meaning the word has.

Inference. "Why does the author say the rule is unsatisfactory?" The answer is not stated in one line; assemble it from two or three places.

Title. A good title is short, covers the whole passage and is not a sentence.

Summary. Reduce the passage to about a third, keeping the main ideas and dropping the examples and the repetition, in your own words and in continuous prose.

A worked example

The paper sets an essay and a comprehension as two separate long-form questions, so this section works one of each end to end. Read the essay for its shape and the comprehension for its discipline: the essay is built from what you know, and the comprehension from what is on the page and nothing else.

One: a worked essay

Topic: "Free legal aid is a promise the Constitution has not kept."

Plan, in note form. Meaning of legal aid. Constitutional basis: article 39A, article 21 fair trial, article 14 equality. The machinery: the Legal Services Authorities Act 1987, the authorities from the national to the taluka level, Lok Adalats. What works: the authorities exist, they are funded, Lok Adalats settle enormous numbers. What does not: awareness, quality of the lawyer assigned, an amicus appointment that is formal rather than real. Conclusion: the promise is partly kept and the gap is in delivery rather than in design.

Introduction. Access to justice means nothing to a person who cannot afford a lawyer. The Constitution recognised this: article 39A directs the State to secure that the operation of the legal system promotes justice on the basis of equal opportunity, and to provide free legal aid so that no citizen is denied justice by reason of economic or other disability. Whether the promise has been kept is a question about delivery rather than about design, and this essay argues that the machinery exists and that its quality is uneven.

Body, first paragraph, the design. The constitutional base is stronger than a single directive principle. Article 39A is supported by article 21, from which the right to a fair trial is drawn, and by article 14, since a trial in which one side has counsel and the other does not is not an equal contest. The Legal Services Authorities Act 1987 gave the directive a structure, with authorities at the national, State, district and taluka levels and with Lok Adalats to settle disputes by agreement.

Body, second paragraph, what works. The structure is real. Legal services authorities function throughout the country, they are funded, and Lok Adalats dispose of very large numbers of cases, particularly compoundable criminal matters, motor accident claims and cheque cases, at a fraction of the cost of a trial. Free legal aid is available as of right to the categories the Act names, which include women, children, members of Scheduled Castes and Scheduled Tribes, and persons in custody.

Body, third paragraph, what does not. The failure is at the point of contact. A person entitled to legal aid must first know that they are entitled, and awareness among the people the scheme is meant for remains low. The lawyer assigned is often junior and is paid modestly, so the standard of representation varies widely. In criminal cases an advocate appointed as amicus curiae sometimes meets the accused for the first time in the courtroom, which satisfies the form of the right and not its substance.

Conclusion. The Constitution's promise was to make justice reach a person who cannot pay for it. The design does that; the delivery does so unevenly. To say the promise has not been kept is too strong, and to say it has been kept is complacent. What is needed is not a new right but better funding, better training and a serious effort at making the existing right known.

Notice the length of each paragraph, the topic sentence at the start of each, and the fact that the conclusion answers the question in the title rather than summarising the essay.

Two: a worked comprehension

Passage. Every legal system that follows precedent must be able to find its precedents. A rule that the decisions of the highest court bind every court below it is of no use if a judge in a district town cannot discover what those decisions are. Law reporting exists to solve that practical problem, and it has a second effect that is less often noticed: a judgment written in the knowledge that it will be printed and read is written with more care than one that will not. Reporting is, however, selective. Editors decide which decisions add to the law and which merely apply it, and their decisions shape what is later cited. A correct decision that is never reported has no influence at all, and the reasons for selection are not always as neutral as they look.

Question 1. Why does a system of precedent need law reporting? Because a rule that lower courts must follow the decisions of a higher one cannot work unless those decisions can actually be found. A judge who cannot discover what has been decided cannot follow it, so reporting is what makes the rule operate in practice.

Question 2. What is the second effect the author mentions? That judgments are better written. A judge who knows the judgment will be printed and read takes more care over it than one who does not, so reporting improves the quality of judgments as well as making them available.

Question 3. What does "selective" mean as used here? That not every decision is reported. Editors choose which judgments to print, according to whether a decision adds to the law or merely applies settled law to particular facts.

Question 4. What criticism does the author make of that selection? That it shapes what is later cited, so an unreported decision has no influence however correct it is, and that the grounds of selection are not as neutral as they appear.

Question 5. Suggest a title. "Why law reporting matters, and its limits."

Notice that each answer is in the writer's own words, is drawn from the passage alone, and is as long as the question deserves and no longer.

Distinctions table

What these do NOT mean

An essay is not a list of headings. Continuous prose is the form, and bullet points in an essay question lose marks.

A comprehension is not a general knowledge test. Answer from the passage even where you know the passage is wrong.

"In your own words" does not mean changing every word. It means restating the idea, and a technical term is kept as it is.

A conclusion is not a summary. It answers the question the title asked.

Length is not quality. A short, ordered essay beats a long, shapeless one.

Quick revision

Essay: read the topic twice and underline the key words; plan for five minutes; decide the line; allot the space; write. Introduction states the subject and the line, about a tenth. Body: one idea per paragraph, with a topic sentence, development, support and a link. Conclusion answers the question, introduces nothing new. Short sentences, plain words, connectives, no padding.

Comprehension: read the passage, then the questions, then the passage again marking the answers. Answer from the passage alone, in your own words unless asked to quote, in complete sentences, matched to the marks. Four kinds of question: factual, vocabulary in context, inference, and title or summary. A summary is about a third of the length, main ideas only.

Test yourself

1. What are the parts of an essay and what does each do?

The introduction states the subject, indicates why it matters and signals the line the essay will take, in three to five sentences. The body develops the subject in paragraphs, each carrying one idea, with a topic sentence, two or three sentences of development, an example or authority in support, and a link to the next paragraph. The conclusion answers the question the topic asked and draws the argument together, without introducing any new point and without merely repeating the introduction.

2. What are the four parts of a well-built paragraph?

A topic sentence stating the single idea of the paragraph; development, being two or three sentences explaining or qualifying that idea; support, being an example, a figure or an authority that shows the idea is not merely asserted; and a link, being a sentence that points forward to the next paragraph so that the essay reads as one argument rather than as a series of separate notes.

3. What is the commonest mistake in a comprehension answer?

Answering from general knowledge rather than from the passage. A comprehension tests whether the candidate has understood what is in front of them, so the material for every answer must come from the passage, even where the candidate knows the passage to be mistaken. The second commonest mistake is copying whole sentences instead of restating the idea, since the instruction to answer in one's own words is itself part of what is being tested.

4. How should the length of a comprehension answer be decided?

By the marks allotted and by the form of the question. A one-mark question asking for a fact wants a phrase or a single sentence. A question worth three or four marks wants a short paragraph or an equivalent number of distinct points. Writing far more than the marks justify wastes time that the essay question needs, and writing far less leaves points unclaimed even where the candidate knows the answer.

5. Write an opening sentence for the topic "Judicial activism: a boon or a bane", and say why it works.

"When the legislature is silent and an executive is unwilling, the question is whether a court should act, and if it does, whether it is doing justice or making law." It works because it states the subject in one line, identifies the real question rather than defining the term, and signals that both sides will be taken, which is what a "boon or a bane" topic requires. It also avoids the two standard openings that lose marks: a dictionary definition, and "in today's world".

6. How is a summary different from a comprehension answer?

A comprehension answer responds to a specific question and takes only what that question needs from the passage. A summary reduces the whole passage, ordinarily to about a third of its length, keeping every main idea and dropping the illustrations, the repetition and the asides, and it is written in continuous prose in the candidate's own words. A summary therefore has to preserve the proportions of the original: an idea the passage treats at length should not disappear because it was hard to compress.

The rule is settled and it has two halves. Where the words of the enactment are clear, the preamble cannot cut them down or extend them. Where they are ambiguous, the preamble may be looked at to ascertain the object and the mischief.

The Preamble to the Constitution has been the subject of the leading Indian discussion.

Facts. In In re Berubari Union, AIR 1960 SC 845, the President referred to the Supreme Court under article 143(1) the question whether the Indo-Pakistan Agreement of 1958, which divided Berubari Union and exchanged the Cooch-Behar enclaves, involved a cession of Indian territory and how it could be implemented. It was argued that the Preamble, in which the people of India resolved to constitute a sovereign republic, itself prohibited the cession of any part of the national territory.

Held. Although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution, is not the source of any substantive power, and equally is not the source of any prohibition or limitation: powers and limitations alike must be found in the body of the Constitution. The argument founded on the Preamble therefore failed, and implementing the agreement required an amendment under article 368.

Why it matters. It is the formulation students are asked for, and it draws the line exactly: a key to the mind of the makers, and not a source of power or of prohibition. The standing of the Preamble was reconsidered in later constitutional litigation, and an answer should say that the proposition that it forms no part of the Constitution has not survived unqualified.

Marginal notes

A marginal note is the short heading printed beside a section: "Effect of repeal" beside section 6.

Here the traditional rule is strict: marginal notes are not part of the statute, because they are inserted by the draftsman and are not voted on by the legislature, so they cannot control the plain meaning of a section. That remains the starting point.

The practice is more nuanced, and it is where marks are earned. A marginal note has been used as an indication of the drift of a section where the words are ambiguous. In K.P. Varghese v. Income Tax Officer, Ernakulam, AIR 1981 SC 1922, the Court used it in exactly that way.

Facts. The assessee sold his Ernakulam house in 1965 to his daughter in law and five of his children for the same price he had paid in 1958, and the Income Tax Officer sought to bring a capital gain to tax under section 52(2) of the Income Tax Act 1961, which applied where the fair market value exceeded the declared consideration by more than fifteen per cent, the Revenue contending that it applied whether or not the consideration had been understated.

Held. Section 52(2) applies only where the consideration has in fact been understated, and the burden of proving understatement lies on the Revenue. Among the reasons, the Court pointed to the marginal note to section 52, which had originally been a marginal note to what became sub section (1) and had remained unchanged when sub section (2) was inserted, as clearly suggesting that Parliament meant it to apply to both sub sections and therefore that sub section (2), like sub section (1), was directed at understatement. It also relied on the placement of the sub section within section 52, on the word "declared" inside it, on the speech of the Finance Minister moving the amendment, and on two circulars of the Central Board of Direct Taxes.

Why it matters. It shows the modern position: a marginal note does not govern, and it is not ignored either where the section is genuinely ambiguous. The external aids in the same judgment are worked in [External Aids to the Interpretation of a Statute].

Headings, and the captions of Parts and Chapters

A heading stands at the top of a group of sections: "GENERAL RULES OF CONSTRUCTION" above sections 5 to 13 of the General Clauses Act, "POWERS AND FUNCTIONARIES" above sections 14 to 19.

Headings are part of the Act and may be looked at to see what the group of sections is about, particularly where the words of a section are ambiguous. They cannot control a clear provision, and a section is not confined to what the heading suggests if its own words go further.

The Act supplies its own vocabulary here. Section 3(9): "Chapter" shall mean a Chapter of the Act or Regulation in which the word occurs. Section 3(40): "Part" shall mean a part of the Act or Regulation in which the word occurs. Section 3(54) does the same for "section" and section 3(52) for "schedule".

Definitions clause, and the difference between "means" and "includes"

The definitions clause fixes the meaning of the words the Act uses, and it is almost always section 2 or section 3.

Three forms, and telling them apart is the point of this topic.

"Means" is exhaustive. Section 3(38) of the General Clauses Act: "offence" shall mean any act or omission made punishable by any law for the time being in force. Nothing outside that is an offence for the purposes of the Act.

"Includes" is extensive. Section 3(42): "person" shall include any company or association or body of individuals, whether incorporated or not. The ordinary meaning of "person" survives and the definition adds to it. That is why a human being is still a person although the definition does not mention one.

"Means and includes" is exhaustive but spelt out. Section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023: "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious.

Two further points that are asked. A definition is subject to the opening words of the clause, which are ordinarily "unless there is anything repugnant in the subject or context", so a definition yields where the context requires. And a deeming provision creates a legal fiction: "shall be deemed to be" makes the law treat as true something that is not, and a fiction is carried to its logical conclusion for the purpose for which it was created and no further.

Sections 4 and 4A of the General Clauses Act extend its section 3 definitions backwards, to enactments made before 1897 and to Indian laws respectively, which is worth a line because it shows a definitions clause reaching beyond its own Act.

Explanations

An Explanation is a paragraph appended to a section or to a proviso to explain it. Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita 2023 carries one, deeming a police report on a non-cognizable offence to be a complaint.

S. Sundaram Pillai v. V.R. Pattabiraman, AIR 1985 SC 582, sets out what an Explanation does.

Facts. Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 allowed eviction for non-payment of rent; its proviso allowed the Controller to give a defaulting tenant time if the default was not wilful; and an Explanation added in 1973 provided when default shall be construed as wilful. The Court had to decide what work the proviso and the Explanation each did, and what "wilful default" meant.

Held. The object of an Explanation to a statutory provision is to explain the meaning and intendment of the Act itself; where there is any obscurity or vagueness in the main enactment, to clarify it so as to make it consistent with the dominant object it seems to subserve; to provide additional support to that dominant object so as to make it meaningful and purposeful; and, where a gap is left, to help the court in interpreting the true purport of the enactment so as to suppress the mischief and advance the object. An Explanation cannot in any way interfere with or change the enactment or any part of it, and it cannot take away a statutory right with which a person has been clothed or set at naught the working of the Act.

Why it matters. It gives, in one place, both what an Explanation may do and the two things it may not, which is exactly the shape of the examination answer.

Exceptions and savings

An exception takes a case out of the operation of a provision that would otherwise cover it. Section 9 of the Code of Civil Procedure 1908 gives the courts jurisdiction over all suits of a civil nature "excepting suits of which their cognizance is either expressly or impliedly barred".

A saving clause preserves something that would otherwise be destroyed by the Act, and it appears most often beside a repeal. Section 6 of the General Clauses Act 1897 is a saving clause of general application, and section 29 of the same Act is headed "Saving for previous enactments, rules and bye-laws".

Two points carry marks. A saving clause is read so as not to defeat the main purpose of the Act; and where a saving clause and the enacting part are irreconcilable, the enacting part prevails, since the saving clause was inserted to preserve and not to override.

Provisos

A proviso is a clause beginning "Provided that", attached to a section or a sub-section.

Sundaram Pillai states the rule. The well established rule of interpretation of a proviso is that it may have three separate functions. Normally a proviso is meant to be an exception to something within the main enactment, or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment, nor can it be used to nullify or set at naught the real object of the main enactment.

Two rules follow, and both are asked. A proviso is confined to the provision it is attached to, and does not travel to the rest of the Act. And a proviso ordinarily carves out an exception rather than enlarging the section: an argument that a proviso extends the main provision has to be made good and is not assumed.

Distinguish a proviso from an Explanation with care. A proviso takes something out; an Explanation clarifies what is in. A provision may carry both, as section 10(2) of the Tamil Nadu Act did.

Illustrations

Illustrations are worked examples appended to a section, in the style of the Bharatiya Sakshya Adhiniyam 2023, which illustrates the definition of "fact" with three: that certain objects are arranged in a certain order in a certain place is a fact; that a person heard or saw something is a fact; that a person said certain words is a fact.

Illustrations are part of the Act and are a legitimate aid to understanding the section they follow. Two limits: an illustration cannot modify the language of the section, and where an illustration and the section are irreconcilable, the section prevails.

Language and punctuation

Language. The words of the provision are the starting point and the finishing point, which is what [The Literal Rule] is about. What belongs here is the working detail: a word takes colour from the words around it, which is noscitur a sociis; a word used twice in the same Act is presumed to bear the same meaning in both places; the singular includes the plural and the masculine includes the feminine, which section 13 of the General Clauses Act 1897 provides in terms; and a word is read in the sense it bore when the Act was passed unless the Act is of a kind that moves with the times.

Punctuation. The traditional rule is that punctuation is no part of a statute and is of little weight, because the Rolls of Parliament originally carried none.

Aswini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369, is the Indian authority.

Facts. Section 2 of the Supreme Court Advocates (Practice in High Courts) Act 1951 provided that, notwithstanding anything contained in the Indian Bar Councils Act 1926 or any other law regulating the conditions subject to which a person not entered on the roll of advocates of a High Court may practise there, every advocate of the Supreme Court shall be entitled as of right to practise in any High Court. The question was whether such an advocate could appear on the Original Side of the Calcutta High Court without being instructed by an attorney, and much argument turned on a comma placed before the word "or" in the opening clause.

Held. By majority, "practise" in section 2 covers both acting and pleading, so the Original Side rules requiring instruction by an attorney could not be applied to an advocate of the Supreme Court. On the comma the Court held that nothing much turned on it, since in construing a statute punctuation marks are of little weight; and it held that the true scope of the enacting part of a section cannot be cut down by the non obstante clause, whose function is to remove obstructions and not to define the reach of what follows. Mukherjea and Das JJ. dissented, and their judgment records that punctuation is a minor element in construction because the Rolls of Parliament carried none.

Why it matters. It is the leading Indian case on punctuation and on the limits of a non obstante clause, and it is a clean example of a majority and a minority for [Indian Young Lawyers Association v. State of Kerala].

Non obstante clause

A non obstante clause opens with "notwithstanding anything contained in", and its function is to give the enacting part an overriding effect where there is a conflict.

Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117, states it.

Facts. A dispute under the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 turned on the effect of a provision opening with the words "notwithstanding anything contained in any law", and on how far that opening displaced other provisions.

Held. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section with a view to giving the enacting part, in case of conflict, an overriding effect over the provision mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision mentioned, the enactment following it will have its full operation, or that the provisions embraced in the non obstante clause will not be an impediment to the operation of the enactment.

Why it matters. It supplies the definition to write down, and it pairs with Aswini Kumar Ghosh, which supplies the limit: the clause removes obstructions and does not define the scope of the enacting part.

Schedules

A Schedule is matter placed at the end of an Act, and it is part of the Act. Section 3(52) of the General Clauses Act provides that "schedule" shall mean a schedule to the Act or Regulation in which the word occurs.

Schedules carry the material that would clutter the body: the First Schedule to the Code of Civil Procedure 1908 holds all the Orders and Rules, the Schedule to the Hindu Succession Act 1956 lists the class I and class II heirs, and the First Schedule to the Bharatiya Nagarik Suraksha Sanhita 2023 classifies offences as cognizable or not and bailable or not.

Two rules. A Schedule is construed with the section that brings it in, and it takes its meaning from that section. And where a Schedule and a section conflict, the section prevails, because the Schedule is subordinate to the enacting part that gives it operation.

Reading a printed extract, part by part

A printed Act is laid out in a fixed order, and being able to point at each part by name is a separate skill from knowing what each part does. It is worth learning as a drill, because the parts are not labelled on the page.

Here is a real extract, exactly as it is printed.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

(ACT NO. 34 OF 1971)

[10th August, 1971]

An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.

BE it enacted by the Parliament in the Twenty-Second Year of the Republic of India as follows:

Short title, extent and commencement.

1. (1) This Act may be called the Medical Termination of Pregnancy Act, 1971.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Now the parts, in the order they appear.

The heading in capitals, "THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971", is the name of the Act as printed. It repeats what section 1(1) enacts as the short title.

"(ACT NO. 34 OF 1971)" is the official citation, sometimes called the number and year of the Act. Every Act passed in a year is numbered in sequence, so this is the thirty fourth Act of 1971. Section 28(1) of the General Clauses Act 1897 provides that an enactment may be cited by its title or short title, or by reference to the number and year thereof, so "Act 34 of 1971" and "The Medical Termination of Pregnancy Act, 1971" are two proper citations of the same statute.

"[10th August, 1971]", the date in square brackets, is the date of assent, that is, the day the President assented under article 111. It is printed in square brackets in every Central Act.

"An Act to provide for the termination of certain pregnancies ... incidental thereto." is the long title. It begins "An Act to" and states the purpose.

"BE it enacted by the Parliament in the Twenty-Second Year of the Republic of India as follows:" is the enacting formula, also called the enacting clause. It is the sentence by which the legislature enacts what follows, and it names the year of the Republic rather than the calendar year.

"Short title, extent and commencement." printed beside or above section 1 is the marginal note.

"1." is the section number, and "(1)", "(2)" and "(3)" are its sub-sections.

Section 1(1) is the short title provision. It is what makes the name in the heading the Act's legal name.

Section 1(2) is the extent clause. It says the territory to which the Act extends.

Section 1(3) is the commencement clause. Here it appoints no date and leaves it to a notification, which is the pattern worked in [Commencement of Statutes].

The four that are confused, and how to tell them apart

Where the preamble would be

The extract above has none, and most modern Acts do not. Where an Act has one it sits between the long title and the enacting formula, and begins "WHEREAS". The General Clauses Act 1897 has one: "WHEREAS it is expedient to consolidate and extend the General Clauses Acts, 1868 and 1887; it is hereby enacted as follows".

A student asked to identify the parts of an extract with no preamble should say so rather than pointing at the long title.

A second extract, with the differences that matter

THE PROTECTION OF HUMAN RIGHTS ACT, 1993

(ACT NO. 10 OF 1994)

[8th January, 1994]

An Act to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Forty-fourth Year of the Republic of India as follows:

Short title, extent and commencement.

1. (1) This Act may be called the Protection of Human Rights Act, 1993.

(2) It extends to the whole of India.

(3) It shall be deemed to have come into force on the 28th day of September, 1993.

Three things here that the first extract does not show, and each is asked.

The year in the short title and the year in the official citation differ. The Act is called the Act of 1993 and is numbered Act 10 of 1994. There is no error: the short title is what section 1(1) chooses to call it, and the official citation records the year in which it was actually passed and numbered. An Act may be named for the year of the events it deals with, or for the year in which the Bill was introduced.

The date of commencement is EARLIER than the date of assent. Assent was on 8 January 1994; section 1(3) says the Act shall be deemed to have come into force on 28 September 1993. That is a deeming provision giving the Act retrospective commencement, and it is explained in [Commencement of Statutes].

The enacting formula names a different year of the Republic, the Forty-fourth, because the Act was passed in a later year than the first extract.

A worked example

A fictitious Municipal Corporations (Amendment) Act contains this section.

Regulation of hawking.

14. Notwithstanding anything contained in any other law for the time being in force, no person shall hawk any goods in a public street except under a licence granted under this Act.

Provided that nothing in this section shall apply to a person selling newspapers or periodicals.

Explanation. For the purposes of this section, "hawk" means to sell or offer for sale from a stationary position on a street, and includes selling from a handcart.

Illustration. A, standing beside a handcart on a footpath, offers vegetables for sale. A hawks within the meaning of this section.

Ajay sells hot food from a scooter that he moves every few minutes. He is prosecuted. Every internal aid in this chapter is engaged.

Marginal note: "Regulation of hawking" tells you the subject and no more. It cannot decide whether Ajay hawks.

Non obstante clause: "notwithstanding anything contained in any other law" means that if a shops and establishments Act permits what section 14 forbids, section 14 prevails. On Aswini Kumar Ghosh it does no more than that, and cannot be used to widen "hawk".

Definitions inside the Explanation: "hawk" means to sell from a stationary position, and includes selling from a handcart. The word "means" makes the first limb exhaustive, so a person selling from a moving scooter is outside it, and the "includes" limb adds handcarts without touching the requirement of a stationary position. That is Ajay's answer, and it turns entirely on the difference between "means" and "includes".

Proviso: it carves newspapers out. On Sundaram Pillai the proviso is an exception to the main enactment and cannot be used to enlarge it, so Ajay cannot argue that because newspapers are excepted, all street food is.

Illustration: it is consistent with the Explanation and confirms it. If the illustration had said "A, selling from a moving scooter, hawks", it would conflict with the Explanation, and the enacting words would prevail.

Language: "public street" is not defined here, so the definitions clause of the principal Act is checked next, and only after that the General Clauses Act, and only after that the ordinary meaning.

Distinctions table

What these do NOT mean

A preamble is not a source of power. Berubari settles it. It is a key to the mind of the makers.

A marginal note does not govern the section. It may be looked at where the section is ambiguous and it cannot contradict it.

"Includes" does not replace the ordinary meaning, it adds to it. This is the single most valuable line in the topic.

A proviso does not enlarge the section it qualifies, in the ordinary case.

Punctuation does not decide a construction. Aswini Kumar Ghosh refused to let a comma carry the argument.

A non obstante clause does not tell you what the section covers. It tells you what the section overrides.

Limits and criticism

The rule about marginal notes is stated more absolutely than it is applied. Courts say the notes are not part of the Act and then use them, and the honest position is that they are a weak aid rather than a forbidden one.

The distinction between a proviso, an exception and an Explanation is not always observed by draftsmen, and a clause labelled a proviso sometimes does the work of an Explanation. Courts look at what the clause does rather than at its label.

Internal aids can be made to yield almost any answer if enough of them are stacked, which is the standing criticism of the whole subject: a court that wants a result can usually find a heading, a proviso or an illustration that points at it.

Quick revision

Order: look inside the Act first; go outside only if doubt remains.

Short title, identification. Long title, general object. Preamble, object and mischief where ambiguous; Berubari, a key to the mind of the makers, not a source of power or prohibition.

Marginal notes, not part of the Act, usable on ambiguity; K.P. Varghese used one. Headings and captions, show what a group is about; General Clauses Act ss.3(9), 3(40), 3(52), 3(54).

Definitions: "means" exhaustive, "includes" extensive, "means and includes" exhaustive and spelt out; subject to "unless the context otherwise requires"; deeming provisions create a fiction carried only as far as its purpose. ss.4 and 4A extend the definitions backwards.

Explanation: Sundaram Pillai, five propositions; it clarifies and cannot change the enactment or take away a statutory right. Proviso: Sundaram Pillai, normally an exception or qualification; confined to its own provision; cannot nullify the main enactment.

Illustrations, part of the Act, cannot modify the section. Punctuation, little weight, Aswini Kumar Ghosh. Non obstante clause, Chandavarkar for what it does, Aswini Kumar Ghosh for its limit. Saving clause, preserves; the enacting part prevails on conflict. Schedules, part of the Act; the section prevails on conflict.

Test yourself

1. What is an internal aid, and why are internal aids used before external ones?

An internal aid is a part of the enactment itself, other than the words being construed, which a court may look at to ascertain their meaning: the titles, preamble, marginal notes, headings, definitions, Explanations, exceptions, provisos, illustrations, language and punctuation, non obstante and saving clauses and Schedules. They come first because the intention of the legislature is to be gathered from what the legislature enacted, so a court reads the whole Act before it looks anywhere else, and resorts to external material only if a doubt remains.

2. What did the Supreme Court hold about the Preamble in In re Berubari Union?

That although it may be correct to describe the Preamble as a key to the mind of the makers of the Constitution, it forms no part of the Constitution and cannot be regarded as the source of any substantive power, and that the same is true of prohibitions and limitations, which must be found in the body of the Constitution. The argument that the Preamble by itself barred the cession of territory therefore failed, and a constitutional amendment under article 368 was held to be necessary to implement the agreement.

3. Distinguish "means" from "includes" in a definitions clause, with an example of each.

A definition using "means" is exhaustive: nothing outside it falls within the word. Section 3(38) of the General Clauses Act 1897 provides that "offence" shall mean any act or omission made punishable by any law for the time being in force. A definition using "includes" is extensive: the ordinary meaning survives and the definition adds to it. Section 3(42) provides that "person" shall include any company or association or body of individuals, whether incorporated or not, which is why a human being remains a person although the definition never mentions one.

4. State the functions of a proviso and of an Explanation, and the limits on each.

On S. Sundaram Pillai v. V.R. Pattabiraman, a proviso is normally an exception to something within the main enactment, or a qualification of something enacted which but for the proviso would be within it; it cannot be torn apart from the main enactment and cannot be used to nullify its real object, and it is confined to the provision it is attached to. An Explanation explains the meaning and intendment of the Act, clarifies obscurity or vagueness so as to make the provision consistent with its dominant object, supports that object, and may help the court where a gap is left; it cannot interfere with or change the enactment, and it cannot take away a statutory right or set at naught the working of the Act.

5. How much weight does punctuation carry, and which case says so?

Very little. In Aswini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369, both sides made much of a comma placed before the word "or" in the non obstante clause of section 2 of the Supreme Court Advocates (Practice in High Courts) Act 1951, and the Court held that nothing much turned on it, since in construing a statute punctuation marks are to be left largely out of consideration. The dissenting judgment records the reason: the Rolls of Parliament originally carried no punctuation at all, so it was never part of what the legislature enacted.

6. What does a non obstante clause do, and what can it not do?

On Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, a clause beginning "notwithstanding anything contained in" is appended to a section to give the enacting part an overriding effect, in case of conflict, over the provisions named in it, so that in spite of those provisions the enactment following will have its full operation. What it cannot do, as Aswini Kumar Ghosh holds, is define or cut down the scope of the enacting part: its function is to remove obstructions to the operation of the section, not to say how far the section reaches.

Held. The dealer succeeded. In interpreting items in a statute like a sales tax Act, resort should be had not to the scientific or technical meaning of the terms used but to their popular meaning, that is, the meaning attached to them by those who deal in them, in their commercial sense.

Why it matters. It states the common parlance or commercial sense rule, which is the standing limit on the use of a dictionary, and it is the case to cite whenever an entry in a tax schedule is in issue.

Translations

Where an Act is published in more than one language, or where an Indian statute is a translation of an English original, a court may look at the other text to resolve an ambiguity in the one before it.

Article 348 of the Constitution provides that the authoritative text of every Bill and Act of Parliament and of a State legislature shall be in the English language, and where a State authorises the use of Hindi or another language, a translation in English published under the Governor's authority is deemed to be the authoritative text. So in India the English text ordinarily governs, and a translation is an aid rather than a rival.

The practical use is narrow and it is real: where a word in the English text is ambiguous, the corresponding word in an authorised Hindi text may show which of the possible meanings the legislature had in mind.

Travaux preparatoires

MU prints "Travaux Preparatiories". The expression is travaux preparatoires, French for "preparatory works": the record of the drafting of an instrument, including the successive drafts, the reports of the drafting body and the debates of the conference that adopted it.

The expression belongs to international law, where article 32 of the Vienna Convention on the Law of Treaties 1969 allows recourse to the preparatory work of a treaty as a supplementary means of interpretation, to confirm a meaning or to determine it where the ordinary meaning leaves it ambiguous or obscure or leads to a manifestly absurd or unreasonable result.

Its Indian counterpart is the material behind a Bill: the Bill as introduced, the report of the select or joint committee, and the amendments made along the way. Comparing the Bill as introduced with the Act as passed can be revealing, because a change made deliberately during passage tells you something about intention, and K.P. Varghese is an example of that reasoning at work.

A caution the syllabus invites. Because MU groups travaux preparatoires with the other aids, students sometimes treat any international material as an aid to construing an Indian Act. That is not the rule. What the Supreme Court has done, where there is no domestic law occupying the field, is to read an international norm into the fundamental rights, and that is [Vishaka v. State of Rajasthan] rather than travaux preparatoires.

Statutes in pari materia

The rule

In pari materia means "on the same matter". Statutes dealing with the same subject matter are read together as one system, so that a word given a settled meaning in one may be given the same meaning in another, and a provision in one may illuminate a corresponding provision in another.

Two Acts are in pari materia where they deal with the same subject, or the same class of persons or things, or where one is an amendment or a re-enactment of the other.

The illustration

The Representation of the People Act 1951 and the Jammu and Kashmir Representation of the People Act 1957 are in pari materia, and the Supreme Court said so. In Sharif-Ud-Din v. Abdul Gani Lone, AIR 1980 SC 303, the Court recorded that sections 89(3) and 94(1) of the State Act are in pari materia with sections 81(3) and 86(1) of the central Act, and construed the State provisions accordingly.

Facts. Section 89(3) of the State Act required every copy of an election petition served on a respondent to be attested by the petitioner under his own signature as a true copy, and section 94(1) required the High Court to dismiss a petition that did not comply; the copies in the case were attested by the petitioner's counsel instead.

Held. The requirement was mandatory and the petition was liable to be dismissed. The Court set out the test for deciding whether a provision is mandatory or directory, which is worked in [Interpretation of Directory and Mandatory Provisions]; and it treated the decisions on the central Act as applicable, the two sets of provisions being in pari materia.

Why it matters. It shows the aid doing exactly what the label promises: one Act being construed with the help of the settled construction of another on the same subject.

The limit

Two Acts are not in pari materia merely because they use the same word. They must be on the same subject, and if they are not, a definition in one has nothing to say about the other.

Contemporanea expositio

MU prints "Contemporanea Exposito". The maxim is contemporanea expositio est optima et fortissima in lege, contemporaneous exposition is the best and strongest in law.

The rule

Where a statute is old, and those who had to administer it from the beginning have consistently understood it in a particular way, that long and uniform understanding is evidence of what it means. A court will not lightly disturb a construction on which people have ordered their affairs for a long time.

Its modern form

The pure form of the maxim applies to ancient statutes. What the Indian courts use far more often is a related idea: the understanding of the department charged with executing the Act, expressed in its circulars and instructions.

K.P. Varghese v. Income Tax Officer, Ernakulam, AIR 1981 SC 1922, is the case. Facts. The assessee sold his Ernakulam house in 1965 to close relatives for the price he had paid in 1958, and the Revenue sought to tax a capital gain under section 52(2) of the Income Tax Act 1961 on the footing that the sub section applied whether or not the consideration had been understated. Held. Section 52(2) applies only where the consideration has in fact been understated, and the burden of proving it lies on the Revenue. Among the Court's reasons were two circulars of the Central Board of Direct Taxes, of 7 July 1964 and 14 January 1974, which the Court held were binding on the Department in administering the provision and were in the nature of contemporanea expositio, furnishing legitimate aid in the construction of the sub section, since the highest authority entrusted with executing the Act had understood it as limited to cases of understatement. Why it matters. It is the case that puts departmental circulars inside this aid, and it does so in terms.

The limit

An administrative understanding cannot prevail over the clear words of the Act. The Executive does not make the law by construing it, and a settled practice founded on a mistake is still a mistake.

Debates, and the statement of objects and reasons

This is the aid whose rule has changed, and the change is the examinable point.

The old rule

For many years the position was that parliamentary debates are not admissible as an aid to construction. The reasons given were that a speech is the view of one member and not of the legislature, that the legislature speaks only through the text it enacts, and that what a member said in the House cannot control what Parliament passed.

The statement of objects and reasons attached to a Bill was treated as more limited still: it could be looked at to see the circumstances that led to the Bill and the mischief sought to be remedied, and not to construe the section, because the Bill may be amended out of recognition after the statement is written.

The change

The position has moved, and an answer that stops at the old rule is out of date. Two lines of authority made the change.

The speech of the mover. In K.P. Varghese, the Court used the speech made by the Finance Minister while moving the amendment that introduced section 52(2), saying that it clearly stated the circumstances in which the sub section came to be passed, the mischief for which the section as it stood did not provide, and why the enactment was found necessary. The Court then read the sub section so as to advance that object.

Constituent Assembly debates. In constitutional cases the debates of the Constituent Assembly have been used to understand the intention behind an article, and that use is now routine.

The modern statement of the rule is therefore this: the speech of the mover of a Bill, and the debates, may be looked at to ascertain the mischief the provision was meant to cure and the object it was meant to achieve, but not to control the meaning of clear words. Written that way, the answer is right whichever version of the rule the examiner has in mind, and it says which is current.

Reports of committees and commissions

Where a statute follows the report of a Law Commission, a committee or a commission of inquiry, the report may be looked at to ascertain the mischief the legislature was addressing and the state of the law before the Act.

The rule and its limit are the same as for debates. The report shows the problem; the Act shows the solution the legislature chose, which may be narrower or wider than the report recommended. A court reads the report to understand the question, not to answer it.

This aid connects directly to [The Mischief Rule, or the Rule in Heydon's Case], whose second question is what the mischief and defect was for which the earlier law did not provide. A committee report is often the best evidence of exactly that.

Two further aids worth naming

Judicial decisions on the same words, whether of Indian courts or, more weakly, of foreign courts on similarly worded statutes. Under article 141 the law declared by the Supreme Court binds, so a decision of that Court on the very provision is not an aid at all, it is the law.

International conventions, where no domestic law occupies the field. That is the Vishaka route and it is worked in [Vishaka v. State of Rajasthan].

A worked example

A fictitious Employees Welfare Act 2020 requires an employer to provide "a creche at every establishment employing more than fifty workers". Ramesh Textiles employs forty permanent workers and thirty engaged through a contractor. Is the section attracted?

Internal aids first. Is "worker" defined in the Act? Is "establishment"? Does any Explanation deal with contract labour? Only if the Act leaves the question open does the court go outside.

Dictionaries. "Worker" in a dictionary means anybody who works, which does not settle whether a contractor's employee is a worker of the principal employer. This is the first limit at work: the dictionary supplies the range and not the answer.

Statutes in pari materia. Other labour statutes on the same subject define "worker" and "contract labour", and if the Act belongs to that family the settled meanings in it may be carried across. If the other Act is on an unrelated subject, it says nothing.

Reports. If the Act followed a committee report on women in factories which recorded that creches were denied by keeping the permanent strength below the threshold and hiring the rest through contractors, that report is admissible to show the mischief, and it points to including contract workers.

Debates. If the Minister moving the Bill said in terms that the clause was aimed at that very practice, K.P. Varghese allows the speech to be used to ascertain the object.

Contemporanea expositio. If the department administering the Act has issued circulars for four years telling inspectors to count contract workers, and employers have complied, that is evidence of the settled understanding. It would not survive clear words the other way.

And the limit. If the Act said "more than fifty workers directly employed by the establishment", none of the six aids could be used, because the words are plain. That sentence belongs in the answer.

Distinctions table

What these do NOT mean

An external aid does not override clear words. Every one of the seven yields to the text.

A dictionary does not decide meaning in a taxing statute. Common parlance does.

The statement of objects and reasons is not the Act. The Bill it was written for may have been amended.

"The debates are inadmissible" is no longer the whole rule. They may be used for the mischief and the object, on the authority of the modern cases.

Contemporanea expositio does not let the Executive legislate. A settled departmental practice founded on a wrong reading is still wrong.

In pari materia is not a licence to import any definition. The two Acts must be on the same subject.

Limits and criticism

External aids invite selective quotation. A long committee report or a long debate contains something for everybody, and a court that wants an answer can usually find a sentence supporting it. That is the strongest argument for the old exclusionary rule and it has not gone away.

The change in the rule on debates has never been announced as a change, so textbooks and papers still carry both versions, which is why an answer should state the modern position and note the older one.

Contemporanea expositio favours the administrator. A construction that has been convenient for a department for thirty years acquires weight from its own longevity, and the taxpayer or the citizen who challenges it starts at a disadvantage.

Quick revision

Rule: external aids only where the words are ambiguous, and never against clear words.

Dictionaries: the range, not the answer; the right period; trade meaning governs in a commercial or fiscal statute, Jaswant Singh Charan Singh, charcoal is coal in the commercial sense.

Translations: article 348 makes the English text authoritative; another authorised text may resolve an ambiguity.

Travaux preparatoires: preparatory work; Vienna Convention article 32, supplementary means; in India, the Bill as introduced and the committee reports.

In pari materia: Acts on the same subject read together; Sharif-Ud-Din records the State and central election laws as in pari materia.

Contemporanea expositio: long and uniform contemporaneous understanding; departmental circulars, K.P. Varghese; cannot beat clear words.

Debates and the statement of objects and reasons: formerly inadmissible; now usable for the mischief and the object, K.P. Varghese on the speech of the mover; not to control clear words.

Reports: show the mischief and the earlier state of the law; feed the mischief rule.

Test yourself

1. When may a court resort to an external aid?

Only where the language of the provision is ambiguous, or where its literal reading produces a doubtful, absurd or unworkable result. External aids are material that the legislature did not enact, so they are evidence of intention that is weaker than the words themselves, and they can never be used to contradict words that are plain. A court therefore exhausts the internal aids, meaning the whole of the Act read together, before it looks outside at all.

2. What is the limit on the use of a dictionary in a taxing statute?

That the popular or commercial meaning prevails over the scientific, technical or dictionary meaning. In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh the Court held that in interpreting items in a statute such as a sales tax Act, resort should be had not to the scientific or technical meaning of the terms used but to the meaning attached to them by those who deal in them, in their commercial sense, and on that footing charcoal was held to be "coal" within the entry.

3. What does contemporanea expositio mean, and how has it been applied in India?

It is the maxim contemporanea expositio est optima et fortissima in lege, that contemporaneous exposition is the best and strongest in law: where those who had to administer a statute from the beginning have consistently understood it in a particular way, that long and uniform understanding is evidence of its meaning. In India its most frequent modern use is with departmental circulars: in K.P. Varghese the Court treated two circulars of the Central Board of Direct Taxes as binding on the Revenue and as being in the nature of contemporanea expositio, furnishing legitimate aid to construction.

4. State the modern position on parliamentary debates.

The older rule excluded them entirely, on the grounds that a speech is the view of one member, that the legislature speaks only through the text it enacts, and that what was said in the House cannot control what was passed. The position has moved: the speech of the mover of a Bill and the debates may now be looked at to ascertain the mischief the provision was meant to cure and the object it was meant to achieve, as the Court did with the Finance Minister's speech in K.P. Varghese, and Constituent Assembly debates are routinely used in constitutional cases. What has not changed is that none of this may be used to control the meaning of clear words.

5. When are two statutes in pari materia, and what follows?

They are in pari materia where they deal with the same subject matter, or the same class of persons or things, or where one is an amendment or re-enactment of the other. What follows is that they may be construed together as one system, so that a word given a settled meaning in one may bear the same meaning in the other and the decisions on one may be applied to the other. Sharif-Ud-Din v. Abdul Gani Lone proceeds on that basis, recording that sections 89(3) and 94(1) of the Jammu and Kashmir Act are in pari materia with sections 81(3) and 86(1) of the central Act.

6. Of what use is the report of a committee that preceded an Act?

It is admissible to show the state of the law before the Act and the mischief the legislature was addressing, which is exactly the material the mischief rule in Heydon's Case calls for in its first two questions. It is not admissible to show what the Act means, because the legislature may have adopted a solution narrower or wider than the report recommended, and what was enacted is the text and not the recommendation. A court therefore reads the report to understand the question and the Act to find the answer.

A citizen does not shed his fundamental rights at the door of a police station. This is the sentence to remember. The rights in Part III are not suspended by arrest. A person in custody retains the right to life and personal liberty under article 21, the protections on arrest and detention under article 22, and the protection against being compelled to be a witness against himself under article 20(3).

Article 21 includes the right not to be tortured. The right to life is more than animal existence: it includes the right to live with human dignity, and torture is incompatible with it.

Article 22(1) requires that a person arrested be informed as soon as may be of the grounds of arrest and not be denied the right to consult and to be defended by a legal practitioner of his choice, and article 22(2) requires production before a Magistrate within twenty four hours.

The requirements the Court then issued flow from articles 21 and 22(1) and are to be strictly followed. The Court said so in terms, which is why the guidelines are not a free-standing invention: they are the operative content the Court read into two constitutional guarantees that were being defeated in practice.

Compensation is a public law remedy. Where a fundamental right has been violated by the State, the Court may award compensation in proceedings under article 32 or article 226, and that remedy is in addition to, and not in substitution for, the ordinary remedies in tort and in criminal law. The defence of sovereign immunity does not avail against a claim founded on the violation of a fundamental right.

The eleven requirements

These are the guidelines, in the Court's own order. They apply "in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures".

One. The police personnel carrying out the arrest and handling the interrogation should bear accurate, visible and clear identification and name tags with their designations, and the particulars of all such police personnel who handle the interrogation must be recorded in a register.

Two. The officer carrying out the arrest shall prepare a memo of arrest at the time of arrest, attested by at least one witness who may be a member of the family of the arrestee or a respectable person of the locality, countersigned by the arrestee, and containing the time and date of arrest.

Three. A person arrested or detained and held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him, or having an interest in his welfare, informed as soon as practicable that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo is himself such a friend or relative.

Four. Where the next friend or relative lives outside the district or town, the time, place of arrest and venue of custody must be notified by the police through the Legal Aid Organisation in the district and the police station of the area concerned, telegraphically, within eight to twelve hours after the arrest.

Five. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

Six. An entry must be made in the diary at the place of detention regarding the arrest, disclosing the name of the next friend who has been informed and the names and particulars of the police officials in whose custody the arrestee is.

Seven. The arrestee should, where he so requests, be examined at the time of his arrest, and major and minor injuries on his body must be recorded at that time. The inspection memo must be signed both by the arrestee and by the police officer effecting the arrest, and a copy provided to the arrestee.

Eight. The arrestee should be subjected to medical examination by a trained doctor every forty eight hours during detention, by a doctor on a panel of approved doctors appointed by the Director, Health Services of the State or Union Territory, such a panel to be prepared for all tehsils and districts.

Nine. Copies of all the documents, including the memo of arrest, should be sent to the illaqa Magistrate for his record.

Ten. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

Eleven. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody shall be communicated by the officer causing the arrest within twelve hours of effecting the arrest, and displayed on a conspicuous notice board.

The sanction. Failure to comply renders the official liable to departmental action and also liable to be punished for contempt of court, proceedings for which may be instituted in any High Court having territorial jurisdiction.

Their reach. The Court said the requirements flow from articles 21 and 22(1), are in addition to the constitutional and statutory safeguards and do not detract from other directions given by courts, and apply with equal force to the other governmental agencies to which the judgment refers, meaning the various armed and investigating forces and not the civil police alone. They were directed to be circulated to every police station and notified there at a conspicuous place.

Where the requirements are today

This is what turns the case from history into current law for a student sitting in December 2026, and it is the part most notes leave out.

The requirements were first put into statute by amendments to the Code of Criminal Procedure 1973. The Code has since been repealed and replaced by the Bharatiya Nagarik Suraksha Sanhita 2023, which carries them forward. The correspondence is close enough that whole phrases survive.

Section 36 of the Sanhita provides that every police officer while making an arrest shall bear an accurate, visible and clear identification of his name which will facilitate easy identification; shall prepare a memorandum of arrest attested by at least one witness who is a member of the family of the person arrested or a respectable member of the locality, and countersigned by the person arrested; and shall inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or friend or any other person named by him informed of his arrest. That is requirements one, two, three and five, in statutory form, and the words in bold are the Court's own.

Section 37 requires the State Government to establish a police control room in every district and at State level, and to designate a police officer in every district and every police station, not below the rank of Assistant Sub-Inspector, responsible for maintaining information about the names and addresses of persons arrested and the nature of the offence charged, which shall be prominently displayed, including in digital mode, at every police station and at the district headquarters. That is requirement eleven, widened.

Section 47 requires every police officer or other person arresting without warrant to communicate forthwith to the person arrested full particulars of the offence for which he is arrested.

Section 48 requires the officer making an arrest to give information regarding the arrest and the place where the arrested person is being held to his relatives, friends or nominated persons, and also to the designated police officer in the district, and requires the officer to inform the arrested person of that right. That is requirements three and four.

Section 53 requires that when any person is arrested he shall be examined by a medical officer in the service of the Government soon after the arrest, and that the medical officer shall record any injuries or marks of violence and the approximate time when they may have been inflicted, a copy of the report being furnished to the arrested person. That is requirements seven and eight.

Section 56 makes it the duty of the person having custody of an accused to take reasonable care of his health and safety, and section 58 forbids detention of a person arrested without warrant for longer than is reasonable, which with article 22(2) is the twenty four hour rule.

So a complete answer says: the guidelines were issued in 1996 to fill a gap, and the gap has since been filled, so what began as judicial directions is now statute. That is the ordinary and healthy life-cycle of guidelines of this kind.

Why the Court could do this

The objection is obvious: laying down eleven rules of police procedure looks like legislation. The Court's answer has three parts, and an examination answer should give all three.

The requirements were derived from articles 21 and 22(1), not invented. The Court said they flow from those articles. What it did was to state the operative content of a constitutional guarantee that was being defeated for want of machinery.

They were expressly interim. They applied "till legal provisions are made in that behalf". The Court left the field to Parliament, and Parliament has now occupied it.

Article 32 makes the remedy a right. Article 32(1) guarantees the right to move the Supreme Court for the enforcement of Part III rights, and article 32(2) empowers the Court to issue directions, orders or writs, whichever may be appropriate. The word "directions" is what carries guidelines of this kind.

This is the same technique used a year later in [Vishaka v. State of Rajasthan], and named as such in [Aruna Shanbaug v. Union of India]. A student who sees the three cases as one line of authority has understood the topic.

Majority and minority

There is no dissent in this case. The judgment was delivered for the Court, and the eleven requirements are the unanimous view.

That is worth saying rather than passing over, because MU's topic 3.2 asks about "minority, and majority judgements" and the honest answer for four of the six named cases is that there was no minority. The case in this book where the question genuinely arises is [Indian Young Lawyers Association v. State of Kerala].

A worked example

Vikas is picked up from his house in Kalyan at 9 p.m. on a Tuesday by three men in plain clothes who say they are police officers. He is taken to a police station, questioned through the night, and produced before a Magistrate on Thursday afternoon. His family, who were not told where he was, find him on Friday, and he has bruises on his back.

What was required at the arrest? Under section 36 of the Sanhita the arresting officer had to bear accurate, visible and clear identification of his name, and to prepare a memorandum of arrest attested by a family member or a respectable person of the locality and countersigned by Vikas. Plain clothes and no memorandum breach both limbs, and they breach requirements one and two of D.K. Basu.

What was required about the family? Section 48 required the officer to give information of the arrest and the place of detention to a relative or friend, and to inform Vikas of that right. Section 37 required the information to reach the designated officer in the district and to be displayed. Requirements three, five and eleven.

What was required about the injuries? Section 53 required examination by a medical officer soon after the arrest, with any injuries and their approximate time recorded and a copy of the report given to Vikas. That provision exists precisely so that bruises acquired after arrest cannot be attributed to the time before it. Requirements seven and eight.

And the twenty four hours? Article 22(2) and section 58. Production on Thursday afternoon after an arrest at 9 p.m. on Tuesday is on its face beyond twenty four hours, excluding the time necessary for the journey.

What follows. Departmental action and contempt, on the terms of D.K. Basu itself. Compensation in a writ petition under article 226 or article 32, because compensation is a public law remedy for the violation of a fundamental right and sovereign immunity is no answer. And the ordinary criminal and civil proceedings, which are not displaced.

Distinctions table

What this case does NOT decide

It does not decide that any particular officer was guilty. No individual claim was adjudicated.

It does not abolish arrest or interrogation. The requirements regulate them; requirement ten expressly allows the lawyer to be excluded for part of the interrogation.

It does not make every breach a ground for acquittal. The consequences the Court attached are departmental action and contempt, together with compensation; it did not hold that evidence obtained after a breach is inadmissible.

It does not stand alone today. A student who states the eleven requirements without saying that they are now largely statutory is describing 1996.

Limits and criticism

Guidelines depend on the people bound by them. The eleven requirements were circulated to every police station in the country, and custodial deaths did not stop, which is why the Court has had to return to the subject repeatedly.

The judicial-legislation objection is real and is not answered merely by calling the directions interim. The best answer is the one the Court itself gave: the requirements were derived from two articles and were expressly to yield to Parliament, and Parliament has now acted.

A requirement that nobody audits is a requirement in name only. The medical examination in requirement eight and now in section 53 is the safeguard most often reduced to a formality, because it depends on a doctor recording what he sees rather than what he is told.

Quick revision

Facts: a letter from the Executive Chairman of Legal Aid Services, West Bengal, enclosing reports of custodial deaths, treated as a writ petition under article 32; a second letter from Ashok K. Johri about a death at Pilkhana, Aligarh, heard with it.

Ratio: custodial violence strikes at the rule of law; a citizen does not shed his fundamental rights at the door of a police station; article 21 includes the right not to be tortured; the requirements flow from articles 21 and 22(1); compensation is a public law remedy and sovereign immunity is no defence.

The eleven: name tags and a register; memo of arrest attested and countersigned with time and date; a friend or relative informed; notification through the Legal Aid Organisation in eight to twelve hours where they live outside the district; the arrestee told of that right; a diary entry; an inspection memo of injuries, signed and copied to him; medical examination every forty eight hours by an approved doctor; documents to the Magistrate; the lawyer during but not throughout interrogation; a police control room with the arrest displayed within twelve hours.

Sanction: departmental action and contempt of court.

Now: BNSS 2023, s.36 identification and memorandum, s.37 control room and designated officer, s.47 grounds, s.48 informing a relative and the designated officer, s.53 medical examination and record of injuries, s.56 health and safety, s.58 no unreasonable detention.

No dissent.

Test yourself

1. What were the facts, and how did the case reach the Court?

The Executive Chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice of India enclosing newspaper reports of deaths in police lock-ups and in custody, and asked that it be treated as a writ petition, that the law be examined and that compensation be paid to victims' families. The letter was treated as a petition under article 32 in the exercise of the epistolary jurisdiction. A second letter, from Ashok K. Johri, concerning the death of Mahesh Bihari in police custody at Pilkhana, Aligarh, was heard along with it. No individual claim was adjudicated; the Court dealt with custodial violence as a class.

2. State the ratio of the case.

That custodial death and torture strike a blow at the rule of law; that a citizen does not shed his fundamental rights at the door of a police station, so that the protections of articles 20(3), 21 and 22 continue in custody; that the right to life in article 21 includes the right to live with human dignity and therefore the right not to be tortured; that the requirements the Court issued flow from articles 21 and 22(1) and must be strictly followed; and that compensation for the violation of a fundamental right is a public law remedy available under articles 32 and 226, in addition to the ordinary remedies, against which sovereign immunity is no defence.

3. Why is this case set on a Legal Language syllabus?

Because MU's topic 3.2 asks for the "ratio and guidelines of courts", and this is the plainest instance in Indian law of a court issuing guidelines rather than merely deciding a dispute. It shows judicial material operating as a source of law: the Court identified a gap between a constitutional guarantee and the machinery for enforcing it, filled the gap with eleven specific requirements, attached a sanction to them, and made them expressly interim so that the legislature could take over, which it has.

4. Name any six of the eleven requirements.

Accurate, visible and clear identification and name tags on the arresting and interrogating officers, with a register of them. A memo of arrest attested by one witness and countersigned by the arrestee, carrying the time and date. The right of the arrestee to have a friend or relative informed. Notification through the District Legal Aid Organisation within eight to twelve hours where the relative lives outside the district. An inspection memo recording injuries, signed by both and copied to the arrestee. Medical examination every forty eight hours by a doctor on an approved panel. Others are the diary entry, informing the arrestee of his right, copies of the documents to the Magistrate, access to a lawyer during though not throughout interrogation, and a police control room displaying the arrest within twelve hours.

5. What was the sanction for breach, and what is the position today?

Failure to comply was to render the official liable to departmental action and also liable to be punished for contempt of court, proceedings being maintainable in any High Court having territorial jurisdiction. Today the requirements are largely statutory: section 36 of the Bharatiya Nagarik Suraksha Sanhita 2023 carries the identification and the memorandum of arrest, section 37 the control room and the designated officer, section 47 the communication of grounds, section 48 the informing of a relative, and section 53 the medical examination and the record of injuries, so breach is now a breach of the Sanhita as well.

6. Was there a dissent, and what does that tell a student answering on topic 3.2?

There was no dissent; the judgment was delivered for the Court and the eleven requirements are unanimous. What it tells a student is that "minority and majority judgements" is not a question that can be answered about every case on the list. Four of MU's six named cases carry no dissent, Joseph Shine carries four concurring opinions and no dissent, and only Indian Young Lawyers Association carries a full dissent. Saying so accurately is worth more than manufacturing a minority that does not exist.

M.C. Mehta had already moved the Supreme Court under article 32 seeking closure and relocation of the hazardous units. While that petition was pending, oleum gas escaped from the caustic chlorine plant on 4 December 1985 and again on 6 December 1985. One advocate practising in the Tis Hazari courts died, and others in the neighbourhood were affected. Applications for compensation were filed.

The Court thus had to decide, among other things, on what principle an enterprise of this kind is liable for harm caused by an escape of a dangerous substance, and how compensation should be measured.

The rule the Court was invited to apply

The rule in Rylands v. Fletcher, laid down in England in 1868, is that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.

That is strict liability, and it comes with exceptions: an act of God, the act of a stranger, the plaintiff's own default, consent, and statutory authority. It also requires a non-natural user of the land and an escape from the defendant's land to another's.

Applied to Shriram, those exceptions would have done real work. An enterprise could argue that the leak was caused by the act of a third party, or by an event beyond its control, and escape liability altogether.

What the Court held

Held. The Court, speaking through Bhagwati C.J., refused to be bound by a rule of 1868 and its exceptions.

It said that Indian law must develop its own jurisprudence; that it was not for want of a precedent that a new principle should be denied; that where an unusual situation has arisen, and is likely to arise, out of hazardous or inherently dangerous industries which are a concomitant of an industrial economy, there is no reason to hesitate to evolve a new principle of liability merely because the English courts have not done so.

It then laid down the rule.

An enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity it has undertaken.

The enterprise must conduct that activity with the highest standards of safety, and if any harm results, the enterprise must be absolutely liable to compensate.

It is no answer for the enterprise to say that it took all reasonable care and that the harm occurred without any negligence on its part.

The liability is not subject to any of the exceptions which operate in relation to the tortious principle of strict liability under the older rule.

Two reasons were given for placing the loss on the enterprise. Those harmed cannot isolate the process of operation from the hazardous preparation of the substance or the other element that caused the harm, so they cannot prove what went wrong. And the enterprise alone has the resources to discover and guard against hazards and to provide warning of them.

The Court added that if an enterprise is permitted to carry on a hazardous activity for profit, the law must presume that the permission is conditional on the enterprise absorbing the cost of any accident as an item of its overheads.

On the measure of compensation, the Court held that it must be correlated to the magnitude and capacity of the enterprise, because compensation must have a deterrent effect: the larger and more prosperous the enterprise, the greater must be the amount payable for harm caused by an accident in carrying on the hazardous activity.

On the machinery, the Court declined at that stage to decide whether Shriram was an authority within article 12 so as to be subject to article 21, and therefore did not set up a special machinery for investigating the claims. It directed the Delhi Legal Aid and Advice Board to take up the cases of those claiming to have suffered from the oleum gas and to file actions on their behalf in the appropriate court within two months, and directed the Delhi Administration to provide the necessary funds.

Why it matters for this syllabus

Three reasons, and the third is the one that connects it to the rest of Module III.

It is judicial material as a source of law. Nothing in any Act said that an enterprise carrying on a hazardous activity is absolutely liable. A court said it, and it became the law.

It shows a court refusing a received rule and giving its reasons. That is exactly what cessante ratione legis, cessat ipsa lex describes, and the maxim is worked in [Legal Maxims: the Remaining Seven]: the conditions that produced the rule of 1868 no longer obtain, so the rule no longer governs.

It shows the limits of that technique. Note carefully what the Court did not do. It did not hold that Rylands v. Fletcher had been repealed, and it did not purport to legislate a scheme of compensation. It stated a principle of liability, left the quantification to the courts hearing the claims, and expressly directed the claimants to the appropriate court.

Absolute liability against strict liability

This comparison is asked directly and the table below is the answer. Learn the four differences.

A worked example

A chemical plant on the outskirts of Pune, owned by a company with a turnover of nine hundred crore rupees, stores a toxic gas. During a cyclone of unprecedented severity a storage tank ruptures and the gas escapes, injuring residents of the colony next door. The company proves that it maintained the tank to a standard above the statutory requirement, that the rupture was caused by wind speeds never before recorded in that district, and that no negligence on its part contributed to it.

Under the older rule. The company would plead the act of God. An operation of natural forces so unexpected that no human foresight could reasonably provide against it is a recognised exception to strict liability, and on the facts as proved the plea would succeed. The residents would recover nothing.

Under M.C. Mehta. The plea fails. The Court held in terms that the liability is not subject to any of the exceptions which operate in relation to strict liability, and that it is no answer that the enterprise took all reasonable care and that the harm occurred without negligence. The duty is absolute and non delegable, and the harm resulted from the hazardous activity.

On quantum. Compensation is correlated to the magnitude and capacity of the enterprise, so the turnover is relevant, not because it measures the residents' loss but because compensation must have a deterrent effect.

And the connection to [Legal Maxims: the First Eight]. The act of God defence, actus Dei nemini facit injuriam, is real and it has a boundary. This is where the boundary is.

Distinctions table

What this case does NOT decide

It does not decide that Shriram was the State. The Court expressly left open whether Shriram was an authority within article 12, and declined for that reason to set up a special machinery.

It does not abolish the older English rule. It declines to apply Rylands v. Fletcher to the class of enterprise described, and says so on the ground that Indian conditions require a different rule.

It does not fix a formula for compensation. It says the measure must be correlated to the magnitude and capacity of the enterprise and must have a deterrent effect, and leaves the figure to the court trying the claim.

It is not a decision under the environmental statutes. The rule is one of tort, developed in a petition under article 32, and it applies whether or not a pollution statute has been breached.

Limits and criticism

A rule with no exceptions is a blunt rule. Absolute liability makes no allowance for the truly unforeseeable, and the answer given is that between an innocent victim and an enterprise that chose to profit from a dangerous activity, the loss should lie on the enterprise.

"Correlated to the magnitude and capacity of the enterprise" is not a measure of damages, it is a direction to make the award hurt. That mixes compensation with deterrence, and the criticism is that deterrence is ordinarily the business of penalties rather than of damages between parties.

The claimants in this very case were sent to the ordinary courts. A principle of absolute liability announced in a judgment does not by itself deliver money to the people injured, and the gap between the rule and the remedy is the standing criticism of the decision.

Quick revision

Two judgments: 17 February 1986, AIR 1987 SC 965, restarting the caustic chlorine plant and the need for environment courts, which is the citation MU prints; 20 December 1986, AIR 1987 SC 1086, absolute liability, which is the case that is taught.

Facts: oleum gas escaped from Shriram's caustic chlorine plant at Kirti Nagar, Delhi, on 4 and 6 December 1985; a complex of about seventy six acres with roughly two hundred thousand people within three kilometres; one advocate died.

Held: an enterprise engaged in a hazardous or inherently dangerous industry owes an absolute and non delegable duty to the community; must conduct the activity with the highest standards of safety; is absolutely liable to compensate if harm results; cannot answer that it took all reasonable care; and is not entitled to the exceptions available under Rylands v. Fletcher. Compensation must be correlated to the magnitude and capacity of the enterprise, and the larger and more prosperous the enterprise the greater it must be.

Reasons: victims cannot isolate what went wrong; the enterprise alone has the resources to discover and guard against the hazard; and permission to carry on the activity for profit is presumed conditional on absorbing the cost of accidents.

Test yourself

1. What are the facts of M.C. Mehta v. Union of India?

Shriram Foods and Fertilizer Industries, run by Delhi Cloth Mills Limited, operated several chemical units in a complex of about seventy six acres at Kirti Nagar, Delhi, surrounded by thickly populated colonies with about two hundred thousand people within three kilometres. M.C. Mehta had moved the Supreme Court under article 32 for closure and relocation of the hazardous units. On 4 and 6 December 1985 oleum gas escaped from the caustic chlorine plant, an advocate died and others were affected, and the Court had to decide on what principle such an enterprise is liable.

2. State the rule of absolute liability.

An enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non delegable duty to the community to ensure that no harm results; it must conduct the activity with the highest standards of safety; and if harm results it is absolutely liable to compensate. It is no answer that it took all reasonable care and that the harm occurred without negligence, and the liability is not subject to any of the exceptions that operate under the rule in Rylands v. Fletcher.

3. How does absolute liability differ from strict liability?

Strict liability under Rylands v. Fletcher requires a non-natural user of land and an escape, and it admits five exceptions: an act of God, the act of a stranger, the plaintiff's own default, consent and statutory authority. Absolute liability attaches to the carrying on of the hazardous activity itself, requires no escape from land to land, and admits no exception at all, so a defendant who proves that the harm was caused by an unprecedented natural event or by a stranger is still liable. The measure of compensation also differs, being correlated under M.C. Mehta to the magnitude and capacity of the enterprise.

4. Why did the Court refuse to follow Rylands v. Fletcher?

Because the rule was laid down in 1868 in a different society, and because the Court took the view that Indian law must build its own jurisprudence rather than wait for the English courts. It said that where an unusual situation has arisen, and is likely to recur, on account of hazardous industries that are a concomitant of an industrial economy, there is no reason to hesitate to evolve a new principle of liability merely because it has not been done in England. That reasoning is the maxim cessante ratione legis, cessat ipsa lex applied to judge-made law.

5. On what basis is compensation to be measured?

Not solely by the loss suffered. The Court held that the measure of compensation must be correlated to the magnitude and capacity of the enterprise, because compensation in such cases must have a deterrent effect, so that the larger and more prosperous the enterprise the greater must be the amount payable for harm caused by an accident in the carrying on of the hazardous activity. The Court did not lay down a formula, and left the figure to the court trying the individual claims.

6. Why does MU's citation for this case need care?

Because AIR 1987 SC 965 is the judgment of 17 February 1986 in the same litigation, which dealt with whether the caustic chlorine plant should be permitted to restart and on what conditions, and which recorded the need for environment courts with technical members. The absolute liability holding is in the judgment of 20 December 1986, reported at AIR 1987 SC 1086. A candidate should answer on absolute liability and note in a line that the citation printed is that of the earlier decision, which shows the case has been read rather than a summary of it.

Article 14 and article 15. Sexual harassment results in the violation of the fundamental right to gender equality. Harassment directed at a woman because she is a woman is discrimination on the ground of sex.

Article 19(1)(g). It violates the right to practise any profession or to carry on any occupation, trade or business, because a workplace in which a woman is harassed is one in which she cannot work on equal terms, and the right includes a right to a safe working environment.

Article 21. It violates the right to life and personal liberty, which includes the right to live with human dignity.

Then the reasoning that makes the case famous. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of international conventions and norms are significant for the purpose of interpreting the guarantee of gender equality and the right to work with human dignity in articles 14, 15, 19(1)(g) and 21, and the safeguards against sexual harassment implicit in them. Any international convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.

The Court grounded that on the Constitution itself. It is implicit from article 51(c), the directive that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and from the enabling power of Parliament to enact laws for implementing international conventions and norms by virtue of article 253 read with entry 14 of the Union List in the Seventh Schedule. Article 73 was also relied on: the executive power of the Union extends to the matters with respect to which Parliament has power to make laws, and that executive power is available until Parliament legislates.

The guidelines. On that footing the Court laid down guidelines and norms for observance at all workplaces and other institutions, until legislation was enacted. It declared that they would be binding and enforceable in law, and that this was the law declared by the Court under article 141.

The guidelines, in outline

An answer does not need every clause, and it does need the shape and the definition.

The duty of the employer. It is the duty of the employer or other responsible person in a workplace or other institution to prevent or deter the commission of acts of sexual harassment, and to provide procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

The definition. Sexual harassment includes such unwelcome sexually determined behaviour, whether directly or by implication, as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The word unwelcome is the operative one, and the test is the woman's perception of the conduct rather than the intention of the person who engaged in it.

Preventive steps. Express prohibition at the workplace, notified and circulated; appropriate provisions in the rules of conduct of government and public sector bodies, with penalties; standing orders in private employment; and working conditions in respect of work, leisure, health and hygiene that ensure there is no hostile environment towards women.

Criminal proceedings. Where the conduct amounts to a specific offence, the employer shall initiate appropriate action by making a complaint to the appropriate authority, and shall ensure that victims and witnesses are not victimised or discriminated against.

Disciplinary action where the conduct amounts to misconduct in employment as defined by the applicable service rules.

A complaints committee. Whether or not the conduct constitutes an offence or a breach of service rules, the employer shall create an appropriate complaint mechanism. It should be headed by a woman, not less than half of its members should be women, and, to prevent undue pressure from senior levels, it should include a third party, such as a non-governmental organisation familiar with the issue. The complaints committee must maintain confidentiality and submit an annual report to the Government.

Workers' initiative to raise the issue in workers' meetings and in employer-employee meetings, and awareness of the rights of female employees by prominently notifying the guidelines.

Third-party conduct. Where sexual harassment occurs as a result of an act or omission by a third party or an outsider, the employer and the person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

Why the case matters for this syllabus

It is judicial legislation, openly. The Court said the guidelines would be binding until suitable legislation was enacted. It is the technique used in [D.K. Basu v. State of West Bengal] a year earlier, and named as a technique in [Aruna Shanbaug v. Union of India] fourteen years later, where the Court said in terms that it was "following the technique used in Vishakha's case".

It is the clearest use of an external aid in Indian constitutional law. MU's topic 3.1 lists travaux preparatoires among the external aids, and students struggle to find an Indian illustration. This is it, at one remove: what was used was not the preparatory work of a treaty but the treaty itself, read into a fundamental right because no Indian law occupied the field.

It defines the limit of that use. The Court did not say that a ratified convention is Indian law. It said that where there is no domestic law in the field, and the convention is not inconsistent with the fundamental rights and is in harmony with their spirit, it may be read into them. India remains dualist, and this is a rule of construction rather than an exception to dualism. That distinction is worked in [International Law, Arbitration, Jurisdiction and Amicus Curiae].

What has happened since

The guidelines were expressly interim, and the interim ended. Parliament has since enacted a statute for the prevention, prohibition and redressal of sexual harassment of women at the workplace, which puts the substance of the guidelines, including the internal complaints committee, into legislation.

So an answer should say: the guidelines held the field from 1997 until the legislation, and the field is now statutory. A student who states the guidelines as the current law is describing 1997, exactly as a student who states the eleven requirements in [D.K. Basu v. State of West Bengal] without mentioning the Sanhita is describing 1996.

Majority and minority

There is no dissent. The judgment was delivered for the Court by a bench of three judges.

A worked example

A private company in Andheri has forty employees. A senior manager repeatedly makes remarks of a sexual nature to a junior colleague, Neha, and suggests that her confirmation depends on her attitude to him. She complains to the human resources department, which tells her that the manager "means no harm".

Which rights are engaged? On Vishaka, article 14 and article 15, because the conduct is directed at her as a woman; article 19(1)(g), because she cannot carry on her occupation on equal terms in a hostile environment; and article 21, because the right to life includes the right to live with dignity.

Does the manager's intention matter? No. The definition turns on conduct that is unwelcome, tested by her perception, and "he meant no harm" is not an answer to it.

What was the employer bound to do under the guidelines? To prevent or deter the commission of such acts and to provide a procedure for resolution; to have a complaints mechanism headed by a woman, with not less than half women members and a third party from outside; to keep the complaint confidential; to initiate criminal proceedings by complaint where the conduct amounts to an offence; and to take disciplinary action where it amounts to misconduct under the service rules.

Can Neha enforce this against a private company? This is the question that separates a good answer from an average one. Article 32 lies against the State, and a private company is ordinarily not the State under article 12, as [Fact, Person, Offence and State] explains. What the Vishaka guidelines did was to impose a duty on every employer, declared as the law under article 141, so the obligation is not confined to public employment; and today the position is statutory, so the duty rests on the employer under the Act and is enforced through the machinery the Act creates.

And if the incident had happened in 1999? Then the guidelines themselves would have been the operative law, binding and enforceable, and that is precisely the situation the Court legislated for.

Distinctions table

What this case does NOT decide

It does not decide the criminal case. The gang rape was prosecuted separately; the writ petition was about the class.

It does not make international conventions binding in Indian law. India is dualist and article 253 exists because implementation requires legislation. The convention was used as an aid to construing articles that were already there.

It does not apply where a domestic law occupies the field. The Court said so in terms, and the whole technique depends on the vacuum.

It does not confine itself to public employment. The duty was imposed on employers generally.

Limits and criticism

The judicial-legislation objection is the same one raised against [D.K. Basu v. State of West Bengal], and the answer is the same: the guidelines were derived from the fundamental rights, were expressly interim, and have been replaced by statute.

Guidelines without machinery achieve little. Between 1997 and the legislation, compliance depended on employers constituting committees that nobody audited, and the standing criticism is that many did not.

The convention route is available only where there is a vacuum, so it is not a general answer to a gap between India's international obligations and its domestic law. Where Parliament has legislated inconsistently with a convention, the Act prevails.

Quick revision

Facts: a class action under article 32 by social activists and non-governmental organisations, arising out of the gang rape of a social worker in Rajasthan, seeking a remedy for working women, there being no Indian law on sexual harassment at work.

Rights: articles 14 and 15, gender equality; 19(1)(g), the right to carry on an occupation, including a safe working environment; 21, life with dignity.

The reasoning: in the absence of domestic law occupying the field, the contents of international conventions and norms are significant for interpreting those guarantees, and any convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into them to enlarge their meaning; implicit from article 51(c), and from article 253 with entry 14 of the Union List, and article 73.

The guidelines: employer's duty to prevent and to provide a procedure; a definition turning on unwelcome sexually determined behaviour; preventive steps and rules of conduct; complaint to the authority where an offence is disclosed; disciplinary action for misconduct; a complaints committee headed by a woman, half its members women, with a third party member, confidentiality and an annual report; workers' initiative and awareness; and third-party conduct. Binding under article 141 until legislation.

Since: superseded by legislation on sexual harassment at the workplace. No dissent.

Test yourself

1. What were the facts, and why did the form of the petition matter?

The petition was a class action under article 32 brought by social activists and non-governmental organisations, arising out of the brutal gang rape of a social worker in a village in Rajasthan, with the object of finding a remedy for the plight of working women rather than of punishing the offenders in that incident, which was the subject of a separate criminal case. The form mattered because the relief sought was general, and because there was no Indian statute on sexual harassment at the workplace, which is the condition on which the Court's technique depended.

2. Which fundamental rights did the Court hold to be violated?

The right to gender equality under articles 14 and 15, because harassment directed at a woman as a woman is discrimination on the ground of sex; the right to practise any profession or carry on any occupation, trade or business under article 19(1)(g), which includes a right to a safe working environment; and the right to life and personal liberty under article 21, which includes the right to live with human dignity.

3. State the proposition about international conventions, and its conditions.

In the absence of domestic law occupying the field, the contents of international conventions and norms are significant for the purpose of interpreting the guarantees of gender equality and the right to work with human dignity in articles 14, 15, 19(1)(g) and 21, and any international convention not inconsistent with the fundamental rights and in harmony with their spirit must be read into those provisions to enlarge their meaning and content. The three conditions are therefore a vacuum in domestic law, consistency with the fundamental rights, and harmony with their spirit. The Court grounded this on article 51(c), on article 253 read with entry 14 of the Union List, and on article 73.

4. Outline the guidelines.

The employer must prevent or deter acts of sexual harassment and provide a procedure for their resolution, settlement or prosecution. Sexual harassment is defined as unwelcome sexually determined behaviour, including physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and other unwelcome conduct of a sexual nature. Preventive steps include express prohibition, rules of conduct with penalties, standing orders and working conditions free of a hostile environment. Where an offence is disclosed the employer must complain to the appropriate authority and protect the complainant and witnesses from victimisation, and misconduct must attract disciplinary action. A complaints committee must be created, headed by a woman, with not less than half women members and a third party member, maintaining confidentiality and reporting annually. Workers may raise the issue in meetings, employees must be made aware of their rights, and third-party harassment attracts the employer's assistance.

5. Does Vishaka make ratified treaties part of Indian law?

No. India follows the dualist approach: a treaty binds India internationally on ratification and becomes enforceable domestically only when Parliament legislates, which is why article 253 confers that power. What Vishaka decided is narrower and is a rule of construction: where no domestic law occupies the field, a convention that is not inconsistent with the fundamental rights and is in harmony with their spirit may be read into those rights so as to enlarge their content. Where Parliament has legislated, the Act governs, whatever the convention says.

6. Is the case still the operative law on sexual harassment at work?

No, and saying so is part of a complete answer. The guidelines were declared to hold the field only until suitable legislation was enacted, and Parliament has since passed a statute for the prevention, prohibition and redressal of sexual harassment of women at the workplace, which puts the substance of the guidelines, including the internal complaints committee, into legislation. Vishaka remains the authority for the constitutional propositions and for the technique; the operative machinery is now statutory.

What the Court held

Held. Section 497 is struck down as unconstitutional, being violative of articles 14, 15 and 21 of the Constitution. Section 198(2) of the Code of Criminal Procedure 1973 is unconstitutional only to the extent that it is applicable to the offence of adultery under section 497. The decisions in Sowmithri Vishnu, V. Revathi and W. Kalyani stand overruled.

The reasons, gathered from the four opinions, are these.

Article 14. The classification had no rational nexus with any legitimate object. A provision that punishes one participant in a consensual act and exempts the other, and that makes the offence disappear if a third person consents, cannot be defended as a rational scheme for protecting the institution of marriage.

Article 15(1). The section discriminated on the ground of sex. It was argued that article 15(3), which permits special provision for women, saved it; the Court held that article 15(3) permits provisions that are genuinely beneficial and does not save a provision founded on the assumption that a woman lacks the capacity to consent or is the property of her husband.

Article 21. The right to life includes dignity, privacy and sexual autonomy. A law which makes a wife's sexual agency depend on her husband's consent denies her all three. The Court described the consent or connivance element as showing that what section 497 protected was the husband's proprietary interest in his wife rather than the sanctity of the marriage.

On the object said to be served. The argument that the section protected the institution of marriage was rejected on its own terms: a provision that permits the act entirely where the husband consents does not protect marriage, and adultery remains a ground for divorce and can found a civil claim, which is where the marital wrong is properly dealt with.

On criminalisation generally. One of the opinions put it that where a civil remedy for a wrongful act is sufficient, it may not warrant a criminal sanction by the State.

Majority, concurrence and dissent

This is why the case is on the syllabus, and it is worth getting the vocabulary exactly right.

Five judges sat. Four separate opinions were delivered: by the Chief Justice for himself and one other judge, and by three judges separately. Every one of them concurred in the result, and section 497 was struck down unanimously.

So the correct description is: a unanimous decision with four concurring opinions and no dissent.

Three terms, distinguished.

A majority judgment is the opinion of more judges than not, where the court is divided. It states the law.

A concurring judgment agrees with the result and gives additional or different reasons. It does not dissent, and its reasoning is persuasive rather than binding of itself, though where all the judges concur the propositions common to their opinions are the ratio.

A dissenting judgment disagrees with the result. It binds nobody, and it is sometimes the seed of a later change in the law.

Why does it matter which you are reading? Because the ratio of a case decided by several opinions is what the necessary majority agreed on. Where four opinions give four different reasons for the same result, a proposition found in only one of them is not the ratio, however attractively it is put. In this case the propositions common to the opinions are that section 497 offends articles 14, 15 and 21, and that is what binds.

Compare [Indian Young Lawyers Association v. State of Kerala], where the Court divided four to one and there is a genuine minority judgment.

What survives, and what has happened since

Adultery remains a ground for divorce. Striking down the offence did not touch the matrimonial law. It also remains capable of founding a civil claim in an appropriate case.

Section 198(2) survives except as to adultery. The declaration was expressly limited to the extent that the sub section applied to section 497.

Section 497 is now gone twice over. The Indian Penal Code 1860 has been replaced by the Bharatiya Nyaya Sanhita 2023, and there is no offence of adultery in the Sanhita. So even if the 2018 decision had not struck the section down, the offence would not exist today.

That last point should be in an answer, because a student who says "section 497 of the Indian Penal Code has been struck down" is describing a Code that has itself been repealed.

A worked example

Kavita discovers that her husband Girish has been in a relationship with Meena, who is married to Sanjay. She asks three questions.

Can Kavita prosecute Girish for adultery? No, and she could not have done so even before 2018. Section 497 punished only the man who had intercourse with another man's wife, so Girish's conduct with a married woman was within it, but section 198(2) deemed only the husband of that woman, Sanjay, to be aggrieved, so only Sanjay could prosecute. Kavita had no standing at any stage. Today the question does not arise at all, the offence having been struck down and not re-enacted in the Bharatiya Nyaya Sanhita 2023.

Could Sanjay have prosecuted Meena? No, even before 2018, because section 497 ended by providing that the wife shall not be punishable as an abettor. She was neither an offender nor an abettor.

And if Sanjay had consented to the relationship? Then no offence was committed at all, by anybody, because the section applied only where the intercourse was without the consent or connivance of the husband. That element is the one the Court fastened on: a provision that vanishes when the husband permits the act is protecting his interest rather than the marriage.

What remedies remain to Kavita? The matrimonial ones. Adultery is a ground for divorce, and the striking down of the offence did not touch that.

Distinctions table

What this case does NOT decide

It does not make adultery lawful in the matrimonial sense. It remains a ground for divorce.

It does not strike down section 198(2) entirely. Only so far as it applied to section 497.

It does not hold that all gender-specific provisions are bad. Article 15(3) continues to permit genuinely beneficial special provision for women; what it does not do is save a provision founded on a stereotype of incapacity.

It is not a decision about privacy alone. Articles 14 and 15 did as much work as article 21.

Limits and criticism

The decision has been criticised as removing a deterrent to conduct that damages families. The answer given in the judgment is that a criminal sanction is not the right instrument where a civil remedy suffices, and that a provision which permits the act with the husband's consent was never a deterrent to the conduct as such.

It has also been criticised from the opposite direction, for stopping at decriminalisation rather than dealing with the position of the aggrieved spouse, of either sex, in the matrimonial law.

Four opinions make the ratio harder to state, which is a general cost of separate concurrences: the result is certain and the reasoning has to be assembled from four places.

Quick revision

Provision: IPC s.497, adultery; punished only the man; the wife not punishable as an abettor; no offence with the husband's consent or connivance. CrPC s.198(2), only the husband deemed aggrieved.

Facts: writ petition under article 32 by a non-resident Indian challenging both provisions; heard by a Constitution Bench of five judges because earlier decisions had upheld section 497.

Held: s.497 struck down as violative of articles 14, 15 and 21; s.198(2) unconstitutional only so far as it applies to s.497; Sowmithri Vishnu, V. Revathi and W. Kalyani overruled.

Reasons: no rational nexus; discrimination on the ground of sex not saved by article 15(3); denial of dignity, privacy and sexual autonomy; the consent element showing a proprietary interest; and a civil remedy sufficing.

Bench: five judges, four opinions, all concurring, no dissent.

Since: adultery remains a ground for divorce; and section 497 has not been re-enacted in the Bharatiya Nyaya Sanhita 2023.

Test yourself

1. What did section 497 provide, and what were its four peculiarities?

It made it an offence for a man to have sexual intercourse with a woman he knew or had reason to believe to be the wife of another man, without that man's consent or connivance, where the act did not amount to rape. Its peculiarities were that only the man was punished; that the section provided in terms that the wife shall not be punishable even as an abettor; that under section 198(2) of the Code of Criminal Procedure 1973 only the husband of the woman was deemed aggrieved, so nobody else could prosecute; and that the consent or connivance of that husband was a complete answer.

2. On what grounds was it struck down?

On articles 14, 15 and 21. Under article 14 the classification had no rational nexus with any legitimate object, since a provision punishing one participant in a consensual act and exempting the other, and disappearing altogether on a third person's consent, cannot rationally be said to protect marriage. Under article 15(1) it discriminated on the ground of sex, and article 15(3) did not save it because that clause permits genuinely beneficial provision and not one founded on a stereotype of incapacity. Under article 21 it denied the woman dignity, privacy and sexual autonomy by making her agency depend on her husband's consent.

3. Describe the composition of the bench and the form of the judgments.

A Constitution Bench of five judges heard the case, and four separate opinions were delivered: one by the Chief Justice for himself and one other judge, and three by individual judges. All four concurred in the result, so the decision was unanimous and there was no dissent. The correct description is therefore a unanimous decision with four concurring opinions, which is different from a majority judgment, since a majority presupposes that the court is divided.

4. Distinguish a concurring judgment from a dissenting one, and say why it matters.

A concurring judgment agrees with the result and supplies additional or different reasons; a dissenting judgment disagrees with the result. It matters because the binding part of a decision is what the necessary number of judges agreed upon: where several concurring opinions give different reasons for one result, a proposition appearing in only one of them is not the ratio. A dissent binds nobody at all, though it may be persuasive and has sometimes become the law later.

5. Does the decision make adultery lawful?

It removes the criminal sanction and nothing more. Adultery remains a ground for divorce under the matrimonial statutes and may found a civil claim in an appropriate case, and the Court said in terms that where a civil remedy for a wrongful act is sufficient it may not warrant a criminal sanction by the State. What was struck down was the offence, together with section 198(2) of the Code of Criminal Procedure 1973 to the extent that it applied to that offence.

6. Why should an answer mention the Bharatiya Nyaya Sanhita 2023?

Because section 497 belonged to the Indian Penal Code 1860, which has itself been repealed and replaced by the Sanhita, and the Sanhita contains no offence of adultery. So the section is gone twice over: struck down in 2018 and not re-enacted in 2023. A candidate who says only that section 497 of the Indian Penal Code has been struck down is describing a Code that no longer exists, and the extra sentence shows the position as it stands for an examination in December 2026.

In 2009 a writ petition was filed in the Supreme Court under article 32 by Pinki Virani, who described herself as Aruna Shanbaug's next friend, seeking a direction that the hospital stop feeding her and allow her to die peacefully.

The Court appointed a team of three eminent doctors to examine her and to report. It also heard the staff of the hospital, who had nursed her for decades. They opposed the petition and said that they wished to continue caring for her.

Two things in those facts do the work. Aruna Shanbaug could not decide for herself, so any euthanasia would be non-voluntary. And the person asking for her death was not the person caring for her, which is what the Court fastened on.

What the Court held

Held. On the facts the petition was dismissed. The Court held that the KEM hospital staff, and not the petitioner, were Aruna Shanbaug's real next friend: they had cared for her day and night for many years, while the petitioner had visited on a few occasions and written a book about her. Since the staff did not want the life support withdrawn, the application failed.

Having decided that, the Court went on to deal with the law, and the rest of the judgment is what the case is known for.

Active euthanasia is a crime. Administering a lethal substance is an offence, and nothing in the judgment touches that. Under the current criminal law that conduct falls within the general provisions on culpable homicide, and the separate offence of abetment of suicide, formerly section 306 of the Indian Penal Code 1860, is now section 108 of the Bharatiya Nyaya Sanhita 2023, while attempted suicide as an offence has not been re-enacted in the general form it once had.

Passive euthanasia is different in kind. Withholding or withdrawing treatment is an omission rather than an act, and the question is whether continuing treatment is in the patient's best interests.

Passive euthanasia should be permitted in certain situations, and the Court disagreed with the Attorney General's submission that it should never be permitted.

Then the technique. The Court said in terms that, following the technique used in Vishaka's case, it was laying down the law in this connection, which will continue to be the law until Parliament makes a law on the subject.

The procedure it laid down. A decision to discontinue life support may be taken by the parents, the spouse or other close relatives, or, in their absence, by a person or body of persons acting as next friend, or by the doctors attending the patient; and the decision must be taken bona fide in the best interests of the patient. Because of the risk of abuse, the Court required the approval of the High Court in the exercise of its parens patriae jurisdiction, on an application to be decided by a bench of two judges, who would nominate a committee of three reputed doctors to examine the patient and report, and would hear the close relatives and the State before giving or refusing approval.

Parens patriae means "parent of the nation": the jurisdiction under which the State, through the courts, acts as guardian of persons who cannot look after themselves.

The two limbs, and why the case is easy to misstate

The judgment does two different things and they must be kept apart.

On the facts, it refused relief. Aruna Shanbaug's feeding was not stopped. She lived until 2015.

On the law, it permitted passive euthanasia and legislated a procedure. That is not obiter dictum in the ordinary sense, because the Court expressly declared it to be the law under article 141 until Parliament acted, in the same way as in [Vishaka v. State of Rajasthan] and [D.K. Basu v. State of West Bengal].

A student who says "the Court allowed Aruna Shanbaug to die" has the case exactly backwards, and it is the commonest error on it.

What has happened since

This is the part that a chapter written from an older set of notes leaves out, and it changes the answer.

In Common Cause (A Regd. Society) v. Union of India, decided on 9 March 2018, a Constitution Bench of five judges took the subject up again. Facts. A registered society moved the Supreme Court under article 32 for a declaration that the right to die with dignity is part of the right to life under article 21, and for permission to execute an advance directive, or living will, refusing life-prolonging treatment in the event of becoming incompetent to decide; the matter went to a Constitution Bench because of the state of the law after Aruna Shanbaug. Held. The right to live with dignity under article 21 includes the right to a dignified process of dying for a person who is terminally ill or in a persistent vegetative state; passive euthanasia, both voluntary and non-voluntary, was upheld; the advance directive was recognised, so that a competent adult may specify in writing, in advance, the treatment they refuse if they become incapable of deciding; and detailed safeguards were laid down for making, recording, giving effect to and revoking such a directive, and for cases where none exists, to hold the field until Parliament legislates. Why it matters. It supersedes the procedural part of Aruna Shanbaug: the requirement of a High Court application in every case has been reworked, and the living will, which did not exist in Indian law in 2011, now does.

So the correct statement of the law for an examination in December 2026 is: passive euthanasia is permitted; the foundation is article 21; Aruna Shanbaug is the decision that first permitted it and laid down a procedure; and the operative safeguards, including the advance directive, come from the 2018 Constitution Bench.

Majority and minority

There is no dissent in Aruna Shanbaug. It was decided by a bench of two judges and the judgment is of the Court.

A worked example

Ramesh has been in a persistent vegetative state in a Mumbai hospital for four years after a road accident. There is no prospect of recovery. His wife and both his adult children agree that artificial feeding should be discontinued. He left no written instruction. His brother objects.

Is this active or passive euthanasia? Passive. Nothing positive is proposed; what is proposed is the withdrawal of treatment necessary to continue life. Had a lethal injection been proposed, it would be active euthanasia and a crime, and no procedure could authorise it.

Is it voluntary or non-voluntary? Non-voluntary, because Ramesh cannot decide and left no directive. That is the same category as Aruna Shanbaug's case.

Who may take the decision? On Aruna Shanbaug, the parents, spouse or other close relatives, or a next friend, or the attending doctors, provided the decision is taken bona fide in his best interests. The brother's objection does not by itself veto it, but it is a matter the court weighs, and it is precisely why an approving authority exists.

What is the safeguard? Aruna Shanbaug required the approval of the High Court in its parens patriae jurisdiction, by a bench of two judges advised by a committee of three doctors, after hearing the close relatives and the State. The 2018 Constitution Bench has since reworked that machinery, and it is the 2018 safeguards that a hospital follows today.

Would a living will have changed anything? Yes, and this is the whole point of the change. Had Ramesh, while competent, executed an advance directive refusing life-prolonging treatment in such a situation, the decision would be his and not his family's. That instrument did not exist in Indian law in 2011 and does now.

Distinctions table

What this case does NOT decide

It did not allow Aruna Shanbaug to die. The petition was dismissed.

It did not legalise active euthanasia. That remains a crime.

It did not create a general right to die. What article 21 was held to protect is a dignified process of dying for a person terminally ill or in a persistent vegetative state, which is the 2018 formulation.

It is not the last word on the procedure. The 2018 Constitution Bench reworked it and recognised the advance directive.

Limits and criticism

A High Court application in every case is slow, and the criticism of the 2011 procedure was that a safeguard which takes months is no safeguard for a family facing the decision, and drives the practice underground. That is one of the reasons the matter returned to the Court.

"Best interests" is a standard, not a rule, and it requires somebody to decide what is best for a person who cannot say. The advance directive answers that objection where it exists, and does nothing where it does not.

The risk of abuse is real and is why the safeguards exist. An elderly or dependent patient whose treatment is expensive is exposed to pressure, and the case for a judicial or committee check rests on that risk rather than on distrust of families.

Quick revision

Facts: Aruna Shanbaug, a KEM Hospital nurse, assaulted in 1973 with a dog chain, left in a persistent vegetative state and nursed by the staff for thirty seven years; a petition under article 32 by Pinki Virani as next friend to stop feeding her; the staff opposed it.

Held on the facts: the KEM staff, not the petitioner, were her next friend, and they did not want life support withdrawn; petition dismissed.

Held on the law: active euthanasia is a crime; passive euthanasia is different and should be permitted in certain situations; and, following the technique used in Vishaka, the Court laid down the law until Parliament legislated. Decision by parents, spouse, close relatives, next friend or attending doctors, bona fide in the patient's best interests, with High Court approval in its parens patriae jurisdiction, a bench of two judges, a committee of three doctors, and the relatives and the State heard.

Since: Common Cause, 9 March 2018, Constitution Bench: article 21 includes a dignified process of dying for the terminally ill and those in a persistent vegetative state; passive euthanasia upheld; the advance directive or living will recognised, with safeguards.

No dissent.

Test yourself

1. Distinguish active from passive euthanasia, and state the legal position on each.

Active euthanasia is a positive act that causes death, such as administering a lethal injection, and it remains a crime. Passive euthanasia is the withholding or withdrawal of treatment necessary for the continuance of life, such as discontinuing a ventilator or artificial feeding, and it is permitted in the situations and on the safeguards laid down by the courts. The distinction is between an act and an omission, and the question in the second case is whether continuing the treatment is in the patient's best interests.

2. What did the Court actually decide on the facts?

That the petition failed. The Court held that the staff of the King Edward Memorial Hospital, who had cared for Aruna Shanbaug day and night for many years, and not the petitioner, who had visited on a few occasions and written a book about her, were her real next friend; and since the staff did not wish life support to be withdrawn, no direction to stop feeding her could be made. Aruna Shanbaug lived until 2015. Saying that the Court allowed her to die is the commonest error on the case.

3. What procedure did the Court lay down, and on what authority?

A decision to discontinue life support may be taken by the parents, the spouse or other close relatives, or in their absence by a next friend, or by the attending doctors, and must be taken bona fide in the best interests of the patient; and because of the risk of abuse the approval of the High Court is required in the exercise of its parens patriae jurisdiction, on an application decided by a bench of two judges who nominate a committee of three reputed doctors and hear the close relatives and the State. The authority was article 141: the Court said expressly that, following the technique used in Vishaka's case, it was laying down the law, which would continue until Parliament legislated.

4. What is parens patriae?

The expression means "parent of the nation", and it describes the jurisdiction under which the State, acting through the courts, assumes the guardianship of persons who cannot look after themselves, such as minors, persons of unsound mind and patients incapable of deciding for themselves. In Aruna Shanbaug it was the basis on which the High Court was made the approving authority, because somebody with no interest of their own had to decide whether withdrawal of treatment was truly in the patient's best interests.

5. How has the law moved since 2011?

In Common Cause (A Regd. Society) v. Union of India, decided on 9 March 2018, a Constitution Bench of five judges held that the right to live with dignity under article 21 includes the right to a dignified process of dying for a person who is terminally ill or in a persistent vegetative state, upheld passive euthanasia both voluntary and non-voluntary, and recognised the advance directive or living will, by which a competent adult may specify in advance the treatment they refuse if they become incapable of deciding. It laid down detailed safeguards for making, recording, giving effect to and revoking such a directive and for cases where none exists, so the procedural part of Aruna Shanbaug no longer states the law by itself.

6. Why is this case grouped with D.K. Basu and Vishaka?

Because all three use the same technique, and Aruna Shanbaug names it. In each, the Court found a gap between a constitutional guarantee and the machinery for giving effect to it, filled the gap with directions declared to be the law under article 141, and made those directions expressly interim so that the legislature could take over. Aruna Shanbaug says in terms that it is "following the technique used in Vishakha's case", which is why the three should be read as one line of authority rather than as three unrelated decisions.

The case was heard by a bench of five judges: the Chief Justice, Nariman, Khanwilkar, Chandrachud and Indu Malhotra JJ.

The questions

Five, and setting them out separately is what allows the majority and the minority to be compared point by point.

Whether the exclusion violates articles 14, 15 and 17.

Whether the devotees of Lord Ayyappa are a religious denomination, or a section of one, so as to attract article 26, which gives every religious denomination the right to manage its own affairs in matters of religion.

Whether the exclusion is an essential religious practice, protected by article 25.

Whether rule 3(b) is ultra vires the 1965 Act.

Whether a writ petition under article 32 lies at the instance of persons who are not themselves devotees.

The majority

Held. By four to one the petition was allowed.

On article 15(1). The customary practice violates article 15(1) because it is based on sex alone. The exclusion also engages article 15(2)(b), the temple being a public place of worship, open and dedicated to the public and partly funded by the State under article 290A.

On article 25. Article 25 guarantees the fundamental right of an individual to worship or follow any religion, and the 1965 Act was passed in furtherance of the goals in article 25(2)(b) as a measure of social reform. The Act contains no prohibition against women entering any public temple.

On article 26 and denomination. The devotees of Lord Ayyappa were held not to constitute a separate religious denomination. The petitioners' contentions on what a denomination requires, including a distinct identity, a common faith and organisation, and property capable of succession by its followers, were accepted as the test, and the worshippers of the deity, who are Hindus, did not satisfy it.

On essential religious practice. The exclusion was held not to be an essential religious practice of a religion, so it did not attract the protection of article 25.

On rule 3(b). Rule 3(b) of the 1965 Rules is ultra vires the Act insofar as it prohibits the entry of women, since the Act itself opens places of public worship to all classes and sections of Hindus.

On constitutional morality. The majority reasoned that the Constitution does not permit a practice which excludes a class of citizens from a public place of worship on the ground of a physiological feature, and that constitutional morality requires the individual right to worship to prevail over a custom of exclusion.

The minority: Indu Malhotra J.

She dissented and would have dismissed the writ petition. Her reasoning is set out here at length because MU's topic asks for the minority judgment and because a summary of it in one line is not an answer.

On the scope of judicial review of religious practice. Article 25 guarantees to every individual the right freely to profess, practise and propagate their faith in accordance with the tenets of their religion. A court should not undertake to decide which practices of a faith are essential to it by testing them against notions of rationality or logic. What is essential is to be determined by reference to the tenets of the religion and to the practice of its adherents.

On constitutional morality. Constitutional morality in a secular polity implies the harmonisation of the fundamental rights, which include the right of every individual, religious denomination or sect to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical. On her view the majority used constitutional morality as a solvent for a religious practice; on hers it is a principle of accommodation between competing rights.

On denomination. The respondents and the intervenors had made out a plausible case that the worshippers of the Sabarimala temple satisfy the requirements of being a religious denomination, or a sect of one, entitled to the protection of article 26. She held that this is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction, and not on affidavits in a writ petition.

On article 17. The limited restriction on the entry of women during the notified age group does not fall within the purview of article 17, which abolishes untouchability. Article 17 was directed at the social evil of untouchability practised against a class of persons on the ground of caste, and it does not reach a restriction founded on the character of the deity.

On rule 3(b). Rule 3(b) is not ultra vires section 3 of the 1965 Act, because the proviso to section 3 carves out an exception in the case of public worship in a temple for the benefit of a religious denomination or a section of it, to manage their own affairs in matters of religion. The rule gives effect to that proviso.

On the maintainability of the petition. She was troubled by a writ petition under article 32 brought by persons who were not devotees of the temple, taking the view that the permissible extent of a person's right to move the Court in matters of religious practice needs consideration.

Her conclusion. In light of her analysis, the writ petition could not be entertained on the grounds enumerated, and it was ordered accordingly.

Why this case is the one for topic 3.2

MU's topic asks for "ratio and guidelines of courts in the following cases, minority, and majority judgements". Of the six cases named, four carry no dissent at all, and [Joseph Shine v. Union of India] carries four concurring opinions and no dissent. This is the only one with a genuine minority judgment, and it is therefore the case in which the distinction can actually be taught.

Three propositions follow, and they are the examinable content.

The majority states the law. Four judges agreed on the result, and their common reasoning is the ratio.

The minority binds nobody. Indu Malhotra J's opinion is not law. It is fully reasoned, it is cited, and it is persuasive only.

A minority judgment is not a wasted judgment. It preserves an argument for later consideration, and in this very matter the questions she raised about the scope of article 26 and about who may move the Court were among those referred to a larger bench a year later.

What happened afterwards

A chapter that stops on 28 September 2018 gives a student a wrong answer to the question "is this the law?".

Review petitions and fresh writ petitions were filed. In Kantaru Rajeevaru v. Indian Young Lawyers Association, decided on 14 November 2019, the Court, by three to two, kept the review petitions pending and referred a set of larger questions to a bench of at least seven judges. Facts. Review petitions and fresh petitions were filed against the judgment of 28 September 2018. Held. The questions referred include the interplay between the freedom of religion under articles 25 and 26 and the other provisions of Part III, the sweep of the expression "morality" in those articles, whether the essential religious practices of a denomination are protected from judicial review, and the permissible extent of judicial recognition of a person's right to move the Court under article 32 in matters of religious practice. Nariman and Chandrachud JJ. dissented, taking the view that the review petitions should be dismissed. Why it matters. It is the reason a student must not say either that the 2018 decision has been overruled, which it has not, or that the matter is closed, which it is not.

So the honest statement is: the judgment of 28 September 2018 has not been overruled; review petitions remain pending; and larger questions raised by it stand referred to a bench of at least seven judges.

A worked example

A trust manages a temple in Maharashtra and, by a custom it says is two centuries old, admits only men to the inner sanctum on one day of the year. A group of women petition the High Court under article 226.

Which questions arise, and in which order? Take them as the Sabarimala bench did.

Is the trust a denomination under article 26? If the worshippers have a distinct identity, a common faith and organisation and property capable of succession, they may be. On the majority's approach the Court decides that in the petition; on Indu Malhotra J's approach it is a mixed question of fact and law for a civil court.

Is the practice an essential religious practice? On the majority's approach the Court examines the tenets and decides. On the minority's approach the Court should be very slow to test the practice against rationality, and should ask what the adherents believe.

Does article 15(1) apply? If the exclusion is on the ground of sex alone, on the majority's reasoning it does, and the temple being a public place of worship engages article 15(2)(b).

Does article 17 apply? On Indu Malhotra J's reasoning it does not, because untouchability under article 17 was directed at exclusion on the ground of caste.

Is the rule or bye-law within the parent Act? This is often the shortest route to a decision, and in Sabarimala it produced opposite answers on the same words: the majority held rule 3(b) ultra vires the Act, and the minority held that the proviso to section 3 saved it.

And the honest conclusion. Because the larger questions stand referred, a High Court today would be applying a decision that binds it while the reference is pending.

Distinctions table

What this case does NOT decide

It does not hold that every religious practice is subject to judicial review of its rationality. The majority held this practice not to be essential; it did not lay down that a court may examine the wisdom of any belief.

It does not decide that the Ayyappans can never be a denomination. The minority thought a plausible case had been made and that the question belonged to a civil court, and the point is among those referred to a larger bench.

It has not been overruled. The reference in 2019 kept the review petitions pending and referred questions; it did not set the judgment aside.

It does not settle the meaning of "morality" in articles 25 and 26. That is one of the questions referred.

Limits and criticism

The essential religious practices doctrine puts a court in the position of a theologian, and that is the burden of Indu Malhotra J's dissent. The answer of the majority is that a practice claiming constitutional protection must be shown to be essential, or the protection has no boundary.

Deciding a denomination question on affidavits is unsatisfactory, whichever way it goes, and the dissent's proposal that it be tried in a civil court is a serious answer to a real difficulty.

A decision that is binding while larger questions about it stand referred is an uncomfortable state of affairs, and it is the present state of affairs here.

Quick revision

Facts: writ petition under article 32 by an association of lawyers challenging the exclusion of women aged ten to fifty from the Sabarimala temple and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965; bench of five; an amicus curiae appeared; judgment of 28 September 2018.

Majority, four judges: exclusion based on sex alone violates article 15(1); article 15(2)(b) engaged, the temple being a public place of worship partly funded under article 290A; article 25 protects the individual worshipper and the 1965 Act is a measure of social reform under article 25(2)(b); the Ayyappans are not a separate religious denomination under article 26; the exclusion is not an essential religious practice; rule 3(b) is ultra vires the Act insofar as it prohibits the entry of women.

Minority, Indu Malhotra J.: a court should not test religious practices against rationality; constitutional morality in a secular polity means harmonising rights, including the right to practise a belief whether or not it is rational; a plausible case was made that the Ayyappans are a denomination, which is a mixed question of fact and law for a civil court; article 17 is not attracted; rule 3(b) is not ultra vires because the proviso to section 3 saves it; the petition should be dismissed.

Afterwards: Kantaru Rajeevaru, 14 November 2019, three to two: review petitions kept pending and larger questions referred to a bench of at least seven judges, on the interplay of articles 25 and 26 with the rest of Part III, the sweep of "morality", whether essential religious practices are immune from judicial review, and who may move the Court under article 32 in such matters. Nariman and Chandrachud JJ. dissented.

Test yourself

1. What was challenged, and by whom?

The practice at the Sabarimala temple in Kerala of excluding women between the ages of ten and fifty, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, which permitted the exclusion of women at such time as they were not by custom and usage allowed to enter a place of public worship. The challenge was brought by the Indian Young Lawyers Association by writ petition under article 32, and it was heard by a bench of five judges, with an amicus curiae appointed to assist.

2. Set out the majority's holdings.

That the customary practice violates article 15(1) because it is based on sex alone, and that article 15(2)(b) is engaged because the temple is a public place of worship open and dedicated to the public and partly funded by the State under article 290A; that article 25 guarantees the individual's right to worship and the 1965 Act was passed as a measure of social reform in furtherance of article 25(2)(b), containing no prohibition against women entering a public temple; that the devotees of Lord Ayyappa do not constitute a separate religious denomination under article 26; that the exclusion is not an essential religious practice; and that rule 3(b) is ultra vires the Act insofar as it prohibits the entry of women.

3. Set out the dissent.

Indu Malhotra J. held that a court should not decide which practices of a faith are essential by testing them against rationality or logic, since article 25 protects the practice of faith in accordance with the tenets of the religion; that constitutional morality in a secular polity means harmonising the fundamental rights, including the right of an individual, denomination or sect to practise their faith irrespective of whether the practice is rational; that a plausible case had been made that the Ayyappans are a religious denomination or a sect, which is a mixed question of fact and law for a civil court; that the age-limited restriction is not within article 17; and that rule 3(b) is not ultra vires section 3, because the proviso to that section carves out an exception for a denomination. She would have dismissed the petition.

4. Why is this case the one to use when a question asks about majority and minority judgments?

Because it is the only case on MU's list of six with a full dissent. D.K. Basu, M.C. Mehta, Vishaka and Aruna Shanbaug carry no dissent, and Joseph Shine carries four concurring opinions and no dissent at all, so in those cases the distinction can only be described. Here it can be demonstrated point by point: the majority and the minority reached opposite conclusions on the denomination question, on essential religious practice, on article 17 and on the vires of rule 3(b), and a candidate can set the two side by side.

5. What is the effect of a dissenting judgment?

It binds nobody. Only the opinion of the majority states the law, and a dissent is persuasive at most. Its value is that it preserves an argument in an authoritative form for later consideration, and dissents have on occasion become the law when a larger bench has revisited the question. In this very matter, some of the questions Indu Malhotra J. raised, on the reach of article 26 and on who may move the Court under article 32 in matters of religious practice, were among those referred to a larger bench in 2019.

6. Is the judgment of 28 September 2018 still good law?

It has not been overruled, and it is not the last word. In Kantaru Rajeevaru v. Indian Young Lawyers Association, decided on 14 November 2019, the Court by three to two kept the review petitions pending and referred larger questions to a bench of at least seven judges, including the interplay between articles 25 and 26 and the other provisions of Part III, the sweep of "morality" in those articles, whether the essential religious practices of a denomination are protected from judicial review, and the permissible extent of a person's right to move the Court under article 32 in such matters. Nariman and Chandrachud JJ. dissented, holding that the reviews should be dismissed. The correct statement is therefore that the decision stands, with review pending and larger questions referred.

Five, if the meaning is clear, stop. That is the whole rule. There is no further step and no licence to ask whether the result is desirable.

Two maxims that belong to this rule

Casus omissus. A case omitted from a statute cannot be supplied by a court. If the legislature has not provided for a situation, the court does not write the provision in. This is the strictest expression of the literal rule and it is the point at which it bites hardest, because the omission is usually obvious and the temptation to cure it is strong.

Expressum facit cessare tacitum, what is expressed puts an end to what is implied. Where the statute has said a thing expressly, there is no room for an implication to the contrary.

Both connect to expressio unius est exclusio alterius, worked in [Legal Maxims: the First Eight].

The rule at work

The literal rule is not usually the subject of a leading case, because a case in which the words were plain and were applied does not need reporting. Where it appears in the reports is at the moment a court refuses to depart from it, or explains why it is departing.

Tolaram Relumal v. State of Bombay, AIR 1954 SC 496, is a good example of both.

Facts. Tolaram Relumal v. State of Bombay, AIR 1954 SC 496. Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 made it an offence for a landlord, himself or through any person acting or purporting to act on his behalf, to receive any fine, premium or other like sum or deposit or any consideration other than the standard rent in respect of the grant, renewal or continuance of a lease. The appellants had received money under an executory contract to grant a lease of premises in a building that had not yet been built, and they were convicted.

Held. The conviction was set aside. The words "grant, renewal or continuance of a lease" suggest that there must be a renewal or continuance of a subsisting lease, and, giving the words "in respect of" their widest meaning, that relationship must be predicated of the grant, renewal or continuance of a lease, so that unless a lease comes into existence simultaneously or near about the time the money is received, the receipt is not in respect of one. The Court then stated the rule that governs a penal provision: if two possible and reasonable constructions can be put upon it, the court must lean towards the construction which exempts the subject from penalty rather than the one which imposes it, and it is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature.

Why it matters here. The last sentence is the literal rule in its purest form, stated in the context where it matters most: the court accepted that the legislature may well have intended to catch what the appellants did, and refused to stretch the words to catch it.

When the literal rule stops

The rule governs where the words are clear. It stops in three situations, and naming them is what turns a bare statement of the rule into an answer.

Ambiguity. Where the words are capable of two meanings, the literal rule cannot choose between them, because both are literal. The court then goes to the other rules and to the aids.

Absurdity, repugnance or inconsistency. Where the ordinary meaning produces a result that is manifestly absurd, or is repugnant to the rest of the Act, the golden rule allows the meaning to be modified. That is [The Golden Rule].

A meaning that defeats the object. Where the ordinary meaning would leave the mischief the Act was passed to remedy untouched, the mischief rule allows the court to prefer the construction that suppresses the mischief and advances the remedy. That is [The Mischief Rule, or the Rule in Heydon's Case].

Notice that all three are exceptions to the literal rule and presuppose it. A student who presents the three rules as three alternatives, to be chosen according to taste, has misunderstood the structure. The literal rule is the rule; the other two are what a court does when it fails.

A worked example

A fictitious Municipal Act provides:

21. No person shall keep any dog in any tenement without a licence issued under this Act, and the licence fee shall be one hundred rupees per dog per year.

Case one. Shanti keeps two dogs without a licence. The words are plain, they cover her, and the literal rule applies them. Whether one hundred rupees is too much is not the court's business.

Case two. Sunil keeps a wolf. The literal rule asks what "dog" ordinarily means, and a wolf is not ordinarily called a dog. There is a casus omissus: the legislature has not provided for wolves. A court applying the literal rule does not extend "dog" to cover it, however sensible that would be. The remedy is an amendment.

Case three. Meera keeps one dog and applies for a licence, and the clerk demands two hundred rupees on the ground that the dog is very large. Section 13 of the General Clauses Act does not help him, and neither does anything else: the fee is one hundred rupees per dog per year, and the words admit of nothing else.

Case four. Fatima keeps a dog in a shop, not a tenement. If "tenement" is defined in the Act, that definition governs. If it is not, its ordinary meaning is a dwelling or a holding, and whether a shop falls within it may genuinely be doubtful, in which case the literal rule has run out and the court moves on.

Case five. The section, read literally, would prohibit a blind person from keeping a guide dog without a licence. That is not absurd, merely strict, so the golden rule does not open. Had the section read "no person shall keep any dog", and had another section of the same Act required every police station to keep a dog, the two would be repugnant and the golden rule would.

Distinctions table

What the rule does NOT mean

It does not mean reading one sentence in isolation. The ordinary meaning is the ordinary meaning in context, and the context is the whole Act.

It does not mean ignoring definitions. A defined word bears its defined meaning even where that is far from ordinary usage.

It does not mean the dictionary decides. A dictionary gives the range; the context selects. And in a commercial or fiscal statute the trade meaning governs, as [External Aids to the Interpretation of a Statute] shows.

It does not mean a court must produce an absurd result. That is what the golden rule is for. What a court may not do is depart from clear words merely because it thinks the result unwise.

It is not "strict construction". Strict construction is a rule about which of two available meanings to prefer in a penal or taxing provision, and it presupposes that there are two.

Limits and criticism

It can defeat the legislature's evident purpose. A drafting slip is applied as written, and the court says that the remedy is an amendment. That is a real cost, and it is defended on the ground that the alternative, letting judges repair statutes, costs more.

"Ordinary meaning" is not always ordinary. Words shift over time and differ between communities, which is why the period of the Act and the trade usage both matter.

It hides choices. A court that says the words are plain has already decided that they are, and where two constructions are genuinely available the assertion of plainness can conceal a preference. The honest test is whether an intelligent reader could take the words the other way.

Quick revision

Statement: give the words their ordinary, plain, natural and grammatical meaning; where they are clear, apply them, whatever the consequences; the intention of the legislature is to be gathered from the words used.

Steps: read the whole Act; check the definitions clause, then the General Clauses Act, then ordinary usage; respect grammar; apply s.13 of the General Clauses Act, masculine includes feminine and singular includes plural unless repugnant, and s.9 on "from" and "to"; and stop when the meaning is clear.

Maxims: casus omissus, a case omitted cannot be supplied by the court; expressum facit cessare tacitum, what is expressed ends what is implied.

Authority: Tolaram Relumal v. State of Bombay, it is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out its intention.

Stops at: ambiguity, absurdity or repugnance, and a meaning that defeats the object. The other two rules are exceptions to this one, not alternatives to it.

Test yourself

1. State the literal rule and the reasons for its primacy.

The words of a statute are to be given their ordinary, plain, natural and grammatical meaning, and where the language is clear and unambiguous the court must give effect to it whatever the consequences. It is primary for three reasons: the text is the only thing the legislature actually enacted, so departing from it means applying something nobody voted on; the separation of powers reserves law-making to the legislature; and certainty requires that people be able to order their affairs by reading the statute.

2. What is a casus omissus, and what does a court do about it?

A casus omissus is a case that the statute has failed to provide for. The rule is that a casus omissus cannot be supplied by the court: if the legislature has not covered a situation, the court does not write the provision in, however obvious the omission or however sensible the extension would be. The remedy lies with the legislature by amendment. The rule is the strictest expression of the literal rule and it is where that rule is hardest to accept.

3. How does Tolaram Relumal illustrate the literal rule?

Section 18(1) of the Bombay Rents Act made it an offence for a landlord to receive a premium in respect of the grant, renewal or continuance of a lease, and the appellants had received money under an executory agreement to grant a lease of premises not yet built. The Court held that the words presuppose a lease that exists or comes into existence at about the same time, and set the conviction aside, saying that where two reasonable constructions of a penal provision are possible the court leans towards the one that exempts the subject, and that it is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out its intention.

4. In what three situations does the literal rule stop?

Where the words are ambiguous, because both meanings are literal and the rule cannot choose between them. Where the ordinary meaning produces a result that is manifestly absurd, or repugnant to or inconsistent with the rest of the Act, in which case the golden rule permits the meaning to be modified. And where the ordinary meaning would leave untouched the mischief the Act was passed to remedy, in which case the mischief rule permits the construction that suppresses the mischief and advances the remedy.

5. Is the literal rule the same as strict construction?

No. The literal rule is the general rule for reading any statute: give the words their ordinary meaning and apply them if they are clear. Strict construction is a rule about choosing between two meanings that are both available, and it applies to particular classes of statute: in a penal provision the court leans towards the construction that exempts the subject from penalty, and in a taxing provision the subject is not to be taxed unless the charge is clear. Strict construction therefore presupposes an ambiguity that the literal rule by itself cannot resolve.

6. What is the strongest criticism of the literal rule, and what is the answer to it?

That it can defeat the evident purpose of the legislature: a drafting slip is applied as written, and a person escapes a provision plainly meant to catch them, or is caught by one plainly not meant for them. The answer is threefold. The alternative, allowing courts to repair statutes, is a greater intrusion on the legislature and a greater loss of certainty. The golden rule already relieves against absurdity and repugnance. And the mischief rule already permits a purposive reading where the words are doubtful, so the literal rule does its damage only where the words are clear and the result is merely unwelcome.

The Indian statement

Tirath Singh v. Bachittar Singh, AIR 1955 SC 830, is the Indian authority and it applies the rule in an unusually clean way, because the Court accepted that the literal reading was available and departed from it anyway.

Facts. Tirath Singh v. Bachittar Singh, AIR 1955 SC 830. An election petition alleged corrupt practices. Section 99(1)(a) of the Representation of the People Act 1951 required the tribunal to record the names of all persons proved to have been guilty of a corrupt or illegal practice. The proviso said that no person shall be named in the order unless (a) he has been given notice to appear before the tribunal and to show cause why he should not be so named, and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness already examined against him, of calling evidence in his defence, and of being heard. The appellant, who was already a party to the petition and had contested it throughout, argued that on the literal words he too was entitled to a fresh notice before being named.

Held. The appellant's construction was rejected. The Court accepted that if the language of the enactment is interpreted in its literal and grammatical sense there could be no escape from the conclusion that parties to the petition are also entitled to notice under the proviso, and then applied the rule of interpretation that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Reading the proviso with clause (b), which speaks of cross-examining witnesses already examined and of calling evidence, the Court held that, notwithstanding the wideness of the language, the proviso contemplates notice only to persons who are not parties to the petition, because the object of the notice is to give a person an opportunity of being heard before a finding is recorded against him, and a party has already had exactly that.

Why it matters. It is the golden rule applied by name, in substance if not by label, and it shows both halves: the literal reading is acknowledged, and the departure is justified by an absurdity, namely giving a fresh hearing to a person who has been heard throughout.

When the golden rule is used

Two situations are traditionally distinguished, and using the labels is worth marks.

The narrow use. The words are capable of more than one meaning, and the court chooses the meaning that avoids the absurdity. Here the golden rule is really a rule for selecting between available meanings, and it hardly departs from the text at all.

The wide use. The words have only one meaning, and that meaning is so absurd, or so repugnant to the rest of the Act, that the court modifies them. This is the controversial use, and Tirath Singh is close to it: the Court read a general word as though it carried an unexpressed qualification.

Even in the wide use the limit holds. A court may modify the meaning, and even the structure of the sentence, so far as is necessary to remove the absurdity, and no further.

What counts as an absurdity

This is the question on which the whole rule turns, and the honest answer is that no exhaustive test exists. What the cases show is that the following will do.

A result that contradicts the apparent purpose of the enactment, which is the formulation in Tirath Singh.

A result that is self-defeating, so that the provision would achieve the opposite of what it plainly sets out to achieve.

A repugnance between two provisions of the same Act, where reading one literally makes the other impossible to operate.

A result so unreasonable that the legislature cannot be supposed to have intended it, which is the presumption against absurdity worked in [Presumptions in Statutory Interpretation].

What will not do: that the result is harsh; that it is inconvenient to administer; that a different rule would be better policy; or that the court would have drafted it otherwise.

A worked example

A fictitious Public Examinations Act provides:

12. Any candidate found in possession of a mobile telephone in an examination hall shall be debarred for three years, and the invigilator shall report every such candidate to the Board.

13. Every invigilator shall deposit his own mobile telephone with the superintendent before entering the examination hall, and shall carry it into the hall only for the purpose of photographing an answer book that is to be seized.

Ravi, a candidate, is found with a mobile telephone. Nisha, an invigilator, carries hers into the hall to photograph a seized answer book, as section 13 requires.

Ravi. The literal rule disposes of it. The words are plain and cover him, and whether three years is severe is not the court's business.

Nisha. On the literal words of section 12, "any candidate" does not cover her, so there is no difficulty. Now change the section to read "any person found in possession of a mobile telephone in an examination hall". Section 12 would then debar an invigilator for doing exactly what section 13 obliges her to do. That is not harshness, it is repugnance between two provisions of the same Act, and the golden rule applies: "any person" is read as not extending to an invigilator acting under section 13.

And the limit. Having made that modification, the court stops. It does not go on to read "any person" as confined to candidates generally, because that goes further than is necessary to remove the repugnance, and a superintendent smuggling a telephone into the hall would still be caught.

A second variation. Suppose section 12 said "shall be debarred for three years" and another section said "shall be debarred for five years" for the same conduct. That is an inconsistency within the Act, and the golden rule permits the court to reconcile them, ordinarily by treating the specific provision as controlling the general one.

Distinctions table

What the rule does NOT mean

It is not a licence to improve a statute. Harshness, inconvenience and bad policy are not absurdities.

It does not let a court begin with the purpose. The starting point is always the ordinary meaning, and the purpose comes in only to show that the ordinary meaning contradicts it.

It does not permit an unlimited modification. "But no farther" is part of the rule, not a gloss on it.

It is not the mischief rule. The mischief rule asks what defect in the earlier law the Act was passed to cure, and it can be used where the words are merely ambiguous. The golden rule asks whether the ordinary meaning produces an absurdity, and it operates on the words the court already has.

It is not confined to statutes. Grey v. Pearson was a case on a will, and the formula speaks of "the instrument".

Limits and criticism

"Absurdity" is undefined and is in the eye of the court. That is the standing objection, and it has force: two judges can differ on whether a result is absurd or merely severe, and the rule then decides nothing until one of them has decided it.

It can become the wide use by stealth. A court that finds an absurdity may modify the words far enough to reach the result it prefers, and the "but no farther" limit is easier to state than to police.

It works better on repugnance than on absurdity. Where two provisions of the same Act cannot both operate, the difficulty is objective and the modification is disciplined by the need to make both work. Where the complaint is that the result is absurd, there is no such discipline.

Quick revision

Statement: the grammatical and ordinary sense of the words is to be adhered to unless it leads to some absurdity, repugnance or inconsistency with the rest of the instrument, in which case that sense may be modified so as to avoid the absurdity and inconsistency, but no farther. Grey v. Pearson, 1857.

Indian form: where the language, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Tirath Singh v. Bachittar Singh, AIR 1955 SC 830.

Tirath Singh: an election petition; the proviso to s.99(1)(a) required notice before naming a person for a corrupt practice; the literal reading would have given a fresh notice to a party who had contested throughout; the Court read the proviso as contemplating notice only to persons who are not parties.

Two uses: narrow, choosing between available meanings; wide, modifying the only available meaning.

Triggers: absurdity, repugnance, inconsistency. Not harshness, inconvenience or bad policy.

Test yourself

1. State the golden rule in its classic form.

That the grammatical and ordinary sense of the words is to be adhered to unless it would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no farther. The formula is Lord Wensleydale's in Grey v. Pearson, decided in 1857, and its three limbs are the ordinary meaning as the starting point, three defined triggers, and a strict limit on how far the modification may go.

2. How did the Supreme Court state and apply the rule in Tirath Singh?

It stated it in the form that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. It applied it by holding that the proviso to section 99(1)(a) of the Representation of the People Act 1951 contemplated notice only to persons who were not parties to the election petition, notwithstanding the wideness of its language, since a party had already had the very opportunity the notice was designed to give.

3. What is the difference between the narrow and the wide use of the rule?

In the narrow use the words are capable of more than one meaning and the court selects the one that avoids the absurdity, so it is really a rule for choosing between available constructions and departs from the text hardly at all. In the wide use the words bear only one meaning, and that meaning is so absurd or so repugnant to the rest of the Act that the court modifies it, and even the structure of the sentence. The wide use is the controversial one, because the court is departing from the only construction the words will bear.

4. What counts as an absurdity, and what does not?