In this, you will learn about the competition act, its feature and some cases on competition act,2002.
I hope, this presentation will help you in your work or helps you to enhance your knowledge.
This is and Corporate Law topic which I have covered.
In this, you will learn about the competition act, its feature and some cases on competition act,2002.
I hope, this presentation will help you in your work or helps you to enhance your knowledge.
This is and Corporate Law topic which I have covered.
LLB LAW NOTES ON PROPERTY LAW
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HIRE LAWYER ONLINE
LAW FIRMS IN DELHI
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Private International Law and Crucial Role of Personal Connecting FactorsFadzliRohami1
Private International Law encompasses both conflicts of law and the unification of substantive law. The issues addressed cover a broad variety of legal concerns. They cover a wide range of subjects, such as child abduction, wills and trusts, sales contracts, negotiable instruments, the enforcement of foreign judgments and the taking of evidence abduction
CONTEMPORNEA EXPOSITIO EXTERNAL AID TO INTERPRETATIONShreya Chaurasia
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.
It is the process of ascertaining the true meaning of the words used in a statute.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
Contempornea Expositio means that the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority.
Contemporanea expositio est optima means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.
External Aid includes Historical Background,The original bill drafted and introduced,Legal Dictionaries,Debates in the Legislature,Judicial Construction etc.
LLB LAW NOTES ON PROPERTY LAW
FREE AFFIDAVITS AND NOTICES FORMATS
FREE AGREEMENTS AND CONTRACTS FORMATS
FREE LLB LAW NOTES
FREE CA ICWA NOTES
FREE LLB LAW FIRST SEM NOTES
FREE LLB LAW SECOND SEM NOTES
FREE LLB LAW THIRD SEM NOTES
FREE LLB LAW FOURTH SEM NOTES
FREE LLB LAW FIFTH SEM NOTES
FREE LLB LAW SIXTH SEM NOTES
FREE CA ICWA FOUNDATION NOTES
FREE CA ICWA INTERMEDIATE NOTES
FREE CA ICWA FINAL NOTES
KANOON KE RAKHWALE INDIA
HIRE LAWYER ONLINE
LAW FIRMS IN DELHI
CA FIRM DELHI
VISIT : https://www.kanoonkerakhwale.com/
VISIT : https://hirelawyeronline.com/
Private International Law and Crucial Role of Personal Connecting FactorsFadzliRohami1
Private International Law encompasses both conflicts of law and the unification of substantive law. The issues addressed cover a broad variety of legal concerns. They cover a wide range of subjects, such as child abduction, wills and trusts, sales contracts, negotiable instruments, the enforcement of foreign judgments and the taking of evidence abduction
CONTEMPORNEA EXPOSITIO EXTERNAL AID TO INTERPRETATIONShreya Chaurasia
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.
It is the process of ascertaining the true meaning of the words used in a statute.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
Contempornea Expositio means that the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority.
Contemporanea expositio est optima means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.
External Aid includes Historical Background,The original bill drafted and introduced,Legal Dictionaries,Debates in the Legislature,Judicial Construction etc.
Chapter 1 – Business and Its Legal Environment1. Schools of Ju.docxcravennichole326
Chapter 1 – Business and Its Legal Environment
1. Schools of Jurisprudential Thought
A. The judge function is not to make the laws but to interpret and apply them. The court plays a significant role in defining what the law is. Judges have some flexibility in interpreting and applying the law, in which each judge’s unique personality, legal philosophy, set of values, and intellectual attributes necessarily frame the judicial decision-making process to some extent.B. The Natural Law School is the oldest and one of the most significant schools of legal though. It is a system of moral and ethical principles that are inherent in human nature and that people can discover through the use of their natural intelligence, or reason. According to Aristotle, natural law applies universally to all humankind.
C. The Positivist School is a school of thought that can be no higher law than a nation’s positive law or national law, the written law of a given society at a particular point in time. In contrast to natural law, positive law does not believe in “natural rights”, but rather human rights exist solely because of laws.
D. The Historical School emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should beE. Legal Realism is popular in the 1920s and 1930s that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning. Legal realists generally advocated a less abstract and more realistic approach to the law, and the circumstances in which transactions take place.
2. Business Activities and the Legal Environment A. Laws and government regulations affect virtually all business activities and basic knowledge of the laws and regulations governing these activities is beneficial – if not essential. Therefore, a study of business law necessarily involves an ethical dimension.
B. There are many areas of the law that may affect a single business decision making. Compartmentalizing a law promotes conceptual clarity, but it does not indicate the extent to which a number of different laws may apply to just one transaction. If any dispute cannot be resolved amicably, then the laws and the rules concerning courts and court procedures can spell out the steps of the lawsuit.
C. Ethics and business decision making is an important part of business decision because ethics constitutes right or wrong behavior. Business decision makers need to consider not just whether decision is profitable and legal but also whether it is ethical.3. Sources of American LawA. There are two main sources of American Law -- primary sources that establish the law and the secondary sources that summarize and clarify the primary sources of law. Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law.
B. Constitutional Law is a law that is expressed in the U.S. Constitution a ...
1Chapter 2 LEGAL RIGHTS AND RESPONSIBILITIES(Laws Governi.docxhyacinthshackley2629
1
Chapter 2: LEGAL RIGHTS AND RESPONSIBILITIES
(Laws Governing the Workplace)
2
Paradoxes about working for the public sector and legal rights
· How and when do we give up personal rights in public employment?
· Must balance three elements
· Employee rights
· Employer needs
· Policy dictates (governmental needs)
In this chapter on Legal Rights and Responsibilities, we are essentially covering laws governing the workplace, of course focusing on the public sector arena. The introduction points out the particularly important paradoxes of living in a democracy in which we value our personal rights, and yet we must yield up or narrow many of those rights in employment situations. This paradox is founded on the underlying principle that public law is trying to balance three elements: the needs of employers, the needs of employees, and the interests of government in pursuing public policy. The entire chapter looks at how these three elements—employees, employers, and policy dictates—are balanced in a wide variety of areas. On one hand, the balancing that is achieved is a magnificent monument to rationality at its best, because the legal system does an extraordinary job of ensuring fairness for employees, employers, and the implementation of policy. It also allows for varying the balance to suit different issues, to evolve over time, and to consider fact-specific situations. Yet on the other hand, public law can be frustrating too, because the balancing act does vary from area to area, does vary constantly over time, and predictability in fact-specific situations is sometimes in doubt until situations are legally challenged and litigated. Thus, public law can be very challenging and frustrating for public managers. As the book points out, managers must embrace the law to avoid the law. This chapter is the primary means that the MPA program uses to ensure that managers are both informed and relatively comfortable dealing with this challenging aspect of management.
3
Not all employment requirements stem directly from laws…
Many issues are not covered by laws, but rather by collective bargaining rules and agency guidelines which are nearly as firm
An interesting note is that much of what constrains employers is not in the law itself, but in civil service rules and tenure systems. Such rules are considered to be freely adopted by governments or individual agencies, and in most cases either have the weight of law, or at least a very strong legal weight in litigation and provide a weapon that can be used when individuals and unions seek protection of employee rights. Thus many of the generalizations in the chapter are based on common practices articulated in rules, rather than specific laws themselves. A prime example of this is in discipline, where civil service systems constrain agencies to act through specific procedures which must be followed scrupulously. Governments set up the legal framework, it is further articulated in collective barg.
Business Law I Introduction to LawHello class and welcome to t.docxRAHUL126667
Business Law I
Introduction to Law
Hello class and welcome to the week one lecture for Business Law I. We will begin with an introduction to the law and the American Legal system. Law is a grouping of rules governing relationships among individuals and between individuals and their society. The function of the law is to maintain stability while allowing for change when necessary. As we will discuss, this law originates from many sources.
To start, America has a rich common law tradition. Common law dates back to the English Court system. This common law developed through the slow accumulation of decisions over many hundreds of years. At bottom, judges generally apply the principle of Stare Decisis or the application of principles applied in earlier cases with similar facts. These earlier cases are known as precedent. This principle is important because it allows for a modicum of stability in the law as the idea is that similar cases will be decided in similar ways. However, this system allows gives the common law some flexibility. Judges may decide that old precedent is no longer applicable, for example, due to changes in society’s attitudes or in technology. When this situation occurs, the judge can create a new precedent.
The constitution provides another source of law. The federal constitution creates the rules for governing the country. It specifies which powers each branch of government may wield, and any state or federal law found to be in conflict with the constitution by the courts will be found to be invalid. A third source of law is statutory law. This source of law includes the statutes and ordinances of Congress and state legislatures. This is a very important source of law, and much of the work of the courts is consumed by interpreting these statutes.
The final source of law to discuss is the administrative law. The development of this law has become increasingly important. As the economy began to grow more complex, Congress devolved some of its powers to administrative agencies (generally under the supervision of the executive branch) to regulate the economy. For example, the Clean Air Act requires the Environmental Protection Agency (EPA) to keep the air safe. This mandate empowers the EPA to pass and enforce regulation protecting society from airborne pollutants. Although this area of law gets less coverage from the press, it can be critically important as these regulations have a monumental impact on the economy. Judges are frequently called upon to determine if the agencies have exceeded the scope of their mandate.
Another important distinction involves the relationship between the federal and state courts. Each state and the federal government has its own court system. And each of these entities will often have different statues, common law, administrative law, and constitutions. States are generally required to follow the decisions of other court’s due to the full faith and credit clause ...
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The Supreme Court
The Supreme Court
The purpose of the Supreme Court is to review or address cases that involve issues on a federal level or of constitutional law, just as appellate courts hear cases on a state level. Their responsibilities include deciding how to apply the principles of constitutional law to new matters and issues that arise in today s day to day legal process; they also play the role of the parent to lower federal appellate courts when their decisions on legal issues are contradicting to one another, overlap, goes against constitutional rights, or allows room for confusion as to whose decision takes precedent. Bottom line the purpose of the Supreme Court is to provide the rules and statues for state level courts to abide by when they...show more content...In my opinion this rule is of fairness because without drawing the line and having a court to reach a final decision and establish authority legal matters could stay in appeal courts for years, constantly being argued and picked apart. The part to the Supreme Courts process I will disagree with is being able to decide what cases to hear and the justices serving for life terms. In my opinion both of these factors allow room for bias and prejudice which should always be one of our constitutional rights that are highly upheld, giving the supreme Courts random cases to address during their term, increasing the length of their term allowing for more cases to be reviewed, and decreasing the term of each judges years of service by switching justices after a given period of time will allow for justice to be bigger than the messenger.
Reference
The Judicial System. (1996). In Merriam Webster s Dictionary of Law. Retr
15INTRODUCTION TO AMERICAN LEGAL SYSTEMINTRODUCTION.docxdrennanmicah
15
INTRODUCTION TO AMERICAN LEGAL
SYSTEM
INTRODUCTION
You likely have a basic understanding of how our legal system works from
current events reported in the news, and perhaps even from a civics course you
took in high school or college. At the risk of revisiting material with which
you are already familiar, this chapter begins by summarizing some core points
about our legal system that will serve as a foundation for your work as a lawyer.
The importance of this background information will become clearer to you as
the chapter and exercises unfold, when you will be asked to apply your knowl-
edge of our legal system to better understand its specifi c relevance to you as a
lawyer.
A. Two Basic Court Systems
Before you begin reading about the sources of law in our court system, you
might fi nd it helpful to have some context that directly applies to your life as a
law student. Consider for a moment your decision to attend orientation classes
at your new law school. The fi rst decision you had to make when you arrived
for orientation (assuming this was your fi rst visit to your new law school)
was to make sure you found the right building in your university. Knowing
that you were to appear for an orientation meeting in Room 201, for example,
wouldn’t help you at all if you ended up in the school of arts and sciences
instead of the law school building. The law school and school of arts and sci-
ences are two very different schools in two very different buildings — while
classes are taught in each building and some of the room numbers might be
the same, the classes themselves are different and are centered around two
different disciplines.
I
2
16 Legal Reasoning, Writing, and Other Lawyering Skills Ch. 2
Similarly, as a law student and ultimately as a lawyer, you will likewise need
to identify “where you are” in terms of the legal issues you will be researching
and evaluating. There are two basic court systems in our country — federal and
state. The federal court system has its own set of laws and courts, and each state
also has its own unique set of laws and courts. Like your law school and the
school of arts and sciences, both federal and state legal systems operate simul-
taneously and pretty much independently.
When a client asks you for legal advice, one of the fi rst things you will need
to do is fi gure out which court system and set of laws controls your client’s
actions. Some conduct is governed solely by the state court legal system, while
other conduct is governed solely by the federal court legal system. And there are
also some instances in which both federal and state laws apply. So, for example,
if your client lived in Chicago, Illinois and had a legal issue that arose there, you
would fi rst need to consider whether federal laws or Illinois state laws governed
the client’s conduct — or both. Assuming the legal matter happened to involve
litigation, that information would also denote the typ.
World Legal System and their Salient FeaturesSagar Bansal
TOPICS - COMMON LAW, CIVIL LAW, RELIGION - STATE RELATION, INDIAN LEGAL SYSTEM.
Legal system refers to a procedure or process for interpreting and enforcing the law. It elaborates the rights and responsibilities in a variety of ways. Three major legal systems of the world consist of civil law, common law and religious law.
Similar to common law system - Author :SOWMIYA.R (20)
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
Abdul Hakim Shabazz Deposition Hearing in Federal Court
common law system - Author :SOWMIYA.R
1. Introduction
Common law, also known as case
law, is a body of unwritten laws based
on legal precedents established by the
courts.
Common law draws from
institutionalized opinions and
interpretations from judicial
authorities and public juries.
Common laws sometimes prove the
inspiration for new legislation to be
enacted .
What Is Common Law?
Common law is a body of unwritten laws
based on legal precedents established by
the courts. Common law influences the
2. decision-making process in unusual cases
where the outcome cannot be determined
based on existing statutes or written
rules of law. The U.S. common-law
system evolved from a British tradition
that spread to North America during the
17th- and 18th-century colonial period.
Common law is also practiced in
Australia, Canada, Hong Kong, India,
New Zealand, and the United Kingdom.
Understanding Common Law
A precedent, known as stare decisis, is a
history of judicial decisions which form
the basis of evaluation for future cases.
Common law, also known as case law,
relies on detailed records of similar
situations and statutes because there is no
3. official legal code that can apply to
a case at hand.
The judge presiding over a case
determines which precedents apply to
that particular case. The example set by
higher courts is binding on cases tried in
lower courts. This system promotes
stability and consistency in the U.S. legal
justice system. However, lower courts
can choose to modify or deviate from
precedents if they are outdated or if the
current case is substantially different
from the precedent case. Lower courts
can also choose to overturn the
precedent, but this rarely occurs.
Stare Decisis definition
Stare decisis is a legal doctrine that
obligates courts to follow historical cases
4. when making a ruling on a similar case.
Stare decisis ensures that cases with
similar scenarios and facts are
approached in the same way. Simply put,
it binds courts to follow legal precedents
set by previous decisions.
Stare decisis is a Latin term meaning "to
stand by that which is decided."
The U.S. common law structure has a
unified system of deciding legal matters
with the principle of stare decisis at its
core, making the concept of legal
precedent extremely important. A prior
ruling or judgment on any case is known
as a precedent. Stare decisis dictates that
courts look to precedents when
overseeing an on-going case with similar
circumstances.
5. Stare decisis is a legal doctrine that
obligates courts to follow historical cases
when making a ruling on a similar case.
Stare decisis requires that cases follow
the precedents of other similar cases in
similar jurisdictions.
The U.S. Supreme Court is the nation’s
highest court; therefore, all states rely on
Supreme Court.
• Stare decisis is a legal doctrine
obligates courts to follow historical
cases when making a ruling on a
similar case.
• Stare decisis requires that cases
follow the precedents of other similar
cases in similar jurisdictions.
6. • The U.S. Supreme Court is the
nation’s highest court; therefore, all
states rely on Supreme Court.
• The doctrine of precedent works
effectively for the most part
because it provides stability and
consistency in the legal system.
Parties involved in trials and
hearings can understand that
decisions made are based on
precedent, rather than personal
views or arbitrary judgement.
Precedents tend to be developed by
senior judges in higher courts,
which lends them authority and
experience.
7.
8. Advantages and disadvantage of
common law system:
Common law describes laws
made by judges rather than a
parliament. As judges consider
both criminal and civil matters,
they make decisions, deliver
rulings and develop precedents.
Taken together, these things
constitute common law. A good
deal of our civil law, such as
torts and negligence, began life
as common law. Like most
aspects of law, common law
has advantages and
disadvantages. Common law
takes some law-making
pressure off parliament and
9. allows for laws to respond to
real-life situations. But
common law is also slow,
reactive rather than proactive
and made by individuals who
are not elected or representative
of the people. This page
summarize some of the some
advantages of common law.
Advantages of common law :
Specificity :
Common law expands on,
clarifies and implements legislation. The
wording of acts of parliament is often
broad and generic, providing general
instruction on the law but not how it
should work in certain situations. The
role of judges and common law is to
10. examine specific facts for each case,
interpret relevant legislation and
administer the law in line with these
findings. As one jurist put it, “common
law puts meat on legislative bones”.
Unforeseen cases. Similar to the point
above about specifics, common law can
also respond to cases, situations and facts
that were not foreseen or anticipated by
legislators. It is impossible for parliament
to legislate for every possible problem,
action or condition that might arise in
society. Common law can examine and
develop responses to real-life situations.
Consistency. The doctrine of precedent
works effectively for the most part
because it provides stability and
consistency in the legal system. Parties
11. involved in trials and hearings can
understand that decisions made are based
on precedent, rather than personal views
or arbitrary judgement. Precedents tend
to be developed by senior judges in
higher courts, which lends them authority
and experience.
Flexibility. Common law provides us
with consistency but it also allows for
flexibility and change in law-making.
Precedents can be challenged, set aside
and replaced by new precedents. The
courts provide ample opportunity for
common law reform.
Speed and efficiency. Common law is
faster, more flexible and responsive than
parliamentary law. Common law often
reacts and responds more quickly to
changing social values, community
12. expectation and so on. Institutional law
reform bodies or the parliament years to
decide on the need for change; judges
and courts can do it while reviewing one
case. The courts can also achieve law
reform faster because they are not bound
by the political and procedural
constraints of the legislative process.
Political independence. Unlike their
law-making counterparts in the
parliaments, judges and courts are not
dominated or controlled by party politics
or ideology. Because of this, the courts
can implement law reforms that might be
controversial or unpopular – reforms that
might affect or even sabotage the
government’s chances for election if they
were initiated in the parliament.
13. Abortion, for example, has been
permitted under common law in three
States – but the parliaments in those
States have refused to legislate on the
matters.
Disadvantage of common law :
Reactive, not proactive :Unlike
the parliament, the courts can only
change common law ex post
facto (‘after the fact’). They cannot
change the law of their own
accord. Courts can only deal with
cases which are brought before
them. Laws and precedents may be
obviously outdated and in need of
reform – but until relevant criminal
charges are laid or relevant civil
14. action is initiated, there is not an
opportunity for these laws and
precedents to be changed.
Secondary function: creating
legislation is the main function of
parliament, however, forming
common law is not the main function
of the courts. The courts exist
primarily to administer justice and
developing common law is a
secondary outcome.
Undemocratic law:
Parliamentarians are elected by and
responsible to the people – but judges
are appointed by the court system.
This fact leads to criticism of judges
as being unaccountable to the people.
Some believe judges make decisions
that are inconsistent with community
standards and values; they believe
that common law is itself
15. undemocratic. This point of view is
often expressed in the media,
particularly during debates about
sentencing.
Lack of review: Courts lack the
personnel, time, resources and
opportunity to fully consider the
changes they make to common law.
In the parliament, draft legislation
will go through numerous stages of
review, including inquiries,
investigations, parliamentary
committees, law reform bodies and
consultation, before it is drafted and
introduced. In contrast, a judge or
panel of judges has minimal time and
resources at their disposal when
forming common law decisions.
Easily overridden: Common law
can be overridden at any time by
legislation. The parliament is the
16. supreme law-making body and
common law is considered inferior to
legislation made by the parliament.
This may be a disadvantage of
common law but it is also a response
to the argument that common law is
undemocratic. If the parliament
considers that common law is
problematic or does not reflect the
views of the people, it can legislate to
abolish or change it.
Common Law Examples
On July 27, 1934, Harry Tompkins was
walking on a narrow footpath by the Erie
Railroad tracks in Hughestown,
Pennsylvania. As a train approached,
something protruding from one of the
railcars struck Tompkins and knocked him
down, causing his arm to be crushed beneath
a train wheel. The train was operated by
a corporation registered in New York, so
17. Tompkins filed his civil lawsuit in federal
district court.
The district court judge who heard the case
followed current federal law of the time, in
applying federal common law to the case,
rather than common law of either the state of
Pennsylvania or New York. Federal
common law applied a standard of “ordinary
negligence” when determining what level of
care the railroad owed to individuals who
are not employed by the railroad. Common
law in the state of Pennsylvania, where the
accident occurred, specifies that the railroad
owes a “wanton negligence” duty of care to
trespassers, which requires proof of a greater
level of negligence. The court found in
Tompkins’ favor, and awarded him
damages.
Prior to the case of Tompkins v. Erie
Railroad, it had already been determined
that, when a case is heard in federal court
18. in diversity, meaning that the case is filed in
federal court because it crosses state
jurisdictions, the state’s statutory law must
be applied. It had also been ruled, however,
that a federal court hearing a case in
diversity was not required to apply the
state’s common law, or precedent, to the
case.
The railroad appealed the matter to the
appellate court, then to the U.S. Supreme
Court. After reviewing the case, the
Supreme Court ruled that the federal district
court did not have the authority to create
federal common law when reviewing state
law claims in diversity, but must apply state
common law.
This topic was quite important, as it was an
effort by the Supreme Court to address the
issue of “forum shopping,” where plaintiffs
in cases that cross jurisdictions take their
case to the state or jurisdiction whose laws
19. would give them the greatest advantage.
With this decision, the Court overturned
federal civil procedures, creating a mandate
that federal common law should be applied
only to strictly federal cases, and not to
diversity cases.
A famous case of M C Mehta v Union of
India, it was witnessed how a common law
principle was changed. Strict liability was
abolished and principle of absolute liability
was set as new law in similar circumstances.
Now as per the present scenario in Indian
Legal System, one can easily figure it out
that statutory laws are now made for almost
all areas of crimes and wrongs. There are
few areas even now where the law has not
been codified completely and its example is
tort law. Many of the cases in India follows
or have followed precedents of common
20. law. One of the precedents set up in Ryland
v Flethcher which dealt with principle of
strict liability was considered in India but
few parts of the judgments were overruled.
So, as of the present state of Indian Legal
System we can easily analyze from the
research that Statutory Law is prevailing
over the case law as far as India is
concerned
There are many academic traditions of
interdisciplinary enquiry and critique that
can be employed to interpret the Indian
Supreme Court's record in 2018, it is
however possible to identify some trends.
Today’s is the second of two posts
profiling ten cases of the Indian Supreme
Court that captured public imagination
deeply and shaped political-constitutional
21. discourse in substantive ways in 2018. The
discussion of the ten cases is divided into
themes and split across two posts. This
week’s post deals with themes of civil
liberty, federalism, privacy and biometrics,
and religion and gender equality – with last
week’s post, dealing with substantive
equality, reservation policies and counter-
majoritarianism.
Protector of Civil and Personal Liberty?
The menace of lynching, with
disproportionate targeting of Muslims and
Dalits, is a grim reminder of the fair
distance that Indian democracy still has to
traverse to realize the promise of
‘constitutional citizenship’ – in which one's
identity is irrelevant to the realization of
rights and equal protection of the law.
Apart from the majoritarian backlash,
another index for testing the equal
22. citizenship claim is the state of civil and
personal liberties in the nation, in particular
the freedom to dissent.
This claim was tested when the State
arrested five human rights activists and
critics of the State – calling them ‘Urban
Naxals'. These human rights activists had
substantial experience working with
marginalized and disadvantaged
communities. Further, they had often been
critical of the government in the past.
This sudden arrest by the Pune Police was
seen as an attempt to freeze dissent by the
heavy hand of state machinery. In response,
five eminent citizens filed a Public Interest
Litigation (PIL) case in the Supreme Court,
challenging the arrests and seeking a court-
monitored probe into the investigation.
23. The Court in a 2:1 judgment in Romila
Thapar v. UOI rejected the plea for a
Special Investigation Team (SIT) to probe
into the investigation, on the ground that
the State had adduced sufficient evidence
for the possibility that they are members of
a banned terrorist organization, CPI (M).
Note that the petitioners were not allowed
to scrutinize this evidence, as it was
submitted in sealed covers – only the
judges viewed it. The lone dissenting
judge, DY Chandrachud, called for a court-
monitored probe as he recounted various
procedural lapses in the arrest process,
signalling States’ selective targeting of
critics.
This case forces one to re-examine the
fragile nature of speech protection when it
collides with state power. The standards of
proof, required for successful conviction,
need not be met to justify a call for a probe
24. at initial stages. A prima facie case is
sufficient to merit investigation. Further,
should the power asymmetry between
citizens and the State not be factored in,
when such brazenness is shown in arresting
dissenters and critics? Rather than
legitimizing sealed cover jurisprudence,
shouldn’t the Court critically assess the
government's account of the facts?
In defence of Federalism
With the incumbent Union Government
having heavy numbers in the Parliament,
there seems to be a shift in the delicate
federal balance between the Centre and the
States. There’s a growing concern that the
Centre is pushing hard to control the
opposition-ruled States through the
institution of the ‘Lieutenant Governor’.
The Centre appoints a Lieutenant
Governor, or LG, as the constitutional head
25. of a State (or Union Territory), that wields
discretionary powers. The exercise of
discretionary power, exercised at the behest
of the Union Government, has the potential
to disrupt the federal balance.
The case that brought the institution of the
LG into controversy was the Government
of NCT of Delhi v UOI case. Holding
representative democracy to be an essential
feature of the office of the executive, the
Court held that the LG is not the executive
head of Delhi. Rather, it held that the Chief
Minister and the Council of Ministers lead
the executive. It clarified that the LG, who
is an administrator appointed by the Union,
is bound by the advice of the Chief
Minister, and secondly, that the LG has no
independent power under the Constitution.
The Court further observed that where two
interpretations are possible on textual
provision, primacy should be given to an
26. interpretation, which furthers representative
democracy, a basic feature of the
Constitution.
Even though the principled issue of who
the executive head of the Delhi
Government is, is now settled, the further
questions of who heads the Services and
the Anti-Corruption Bureau, and who has
the power to set up enquiries over public
functionaries are yet to be comprehensively
settled. This is because the 5-judge bench
in this case dealt with the constitutional
question of who heads the Delhi
Government and specific disputes were
referred to the smaller benches.
Nevertheless, the Court in 2018 played an
active role in strengthening the principle of
co-operative federalism by limiting the
scope of the Centre's interference and by
checking the discretionary powers of the
LG.
27. Aadhaar Challenge
In 2018, the Court faced a significant test
in its assessment regarding whether the
Government's expansive and controversial
identity program, called Aadhaar, ran afoul
of privacy. Note that in 2017, a nine-judge
bench of the Supreme Court had recognized
the right to privacy as a fundamental right
guaranteed by the Constitution.
In a 4:1 split verdict in K.S. Puttaswamy v.
UOI, the Court upheld the constitutionality
of the Aadhaar Act, but curtailed its wide
ambit by striking down provisions which
had allowed non-state parties to make
Aadhaar mandatory. However, the Court
did not strike down Section 7, which makes
Aadhaar mandatory for qualification for
State subsidies and benefits.
28. Justice AK Sikri writing the majority
opinion, spoke of balancing two notions of
the right to dignity – individual dignity,
predicated on freedom of choice, and a
communitarian approach to dignity, which
accounts for the "community good." By
upholding Section 7, Justice Sikri signalled
that the citizens dependent upon State
subsidies and benefits may have to place
limits on their right to self-identify, a part
of the right to individual dignity.
Besides bringing civil society together to
challenge the world's largest biometric
identification project, with the enrolment of
1.2 billion citizens, the case is significant
also for seeing the most extended oral
arguments in the 21st century. Oral
arguments lasted for 38 days. The longest
hearing ever, occurred in 1973 in
Kesavanand Bharti v. State of Kerala,
where arguments lasted for 68 days.
29. Reconciling Religion with Gender
Equality
In testing a religious custom, spanning
centuries, against the tenets of gender
equality, the Supreme Court in Indian
Young Lawyers Association v. State of
Kerala by a 4:1 decision, held that the
Sabarimala religious custom, which
prohibits women in their 'menstruating
years' from entering the Temple, violates
fundamental rights guaranteed to women
under the Constitution. Justice Indu
Malhotra's dissent has raised questions
about the extent to which established
religious practices can be challenged on
notions of equality.
The dispute is still unfolding as over 50
review petitions are yet to be decided. Even
four months after the judgment, there is
almost nil enforceability of the judgment
30. with only two women managing to get
entry into a temple. This chips away from
the authority of the highest Court, if it is
helpless in the face of political protests in
getting its judgment enforced. Clearly, it’s
the troika of reasoning, outcome, and
enforceability together that give legitimacy
to the Supreme Court as the final arbiter of
law.
With the analysis in these two posts we
present to the readers a 10-case series by
the Supreme Court Observer where we
have detailed the journey and the reception
of these cases. It is written with a common,
non-technical reader, who has an interest in
public affairs, in mind. However, the
detailed references and hyperlinks allow
the more informed reader to look into the
journey of these cases more intensively.
Below, find links to the #10 Cases that
Shaped India in 2018:
31. 1. Constitutionality of Aadhaar Act (K.S.
Puttaswamy v. Union of lndia)
2. Sabarimala Temple Entry (Indian
Young Lawyers Association v. State of
Kerala)
3. Constitutionality of Section 377 (Navtej
Johar v. Union of India)
4. Arrested Activists (Romila Thapar v.
Union of India)
5. Decriminalisation of Adultery (Joseph
Shine v. Union of India)
6. Reservation in Promotion (Jarnail
Singh v. Lacchmi Narain Gupta)
7. Electoral Disqualification (Public
Interest Foundation v. Union of India)
8. Hadiya Marriage (Shafin Jahan v. KM
Ashokan)
9. Cow Vigilantism (Tehseen Poonawalla
v. Union of India)
32. 10. Special Status of Delhi (Government of
NCT of Delhi v. Union of India)
Conclusion :
the common law system , the judge can
produce law and also to declare it by means
of interpretation of previous judgements or
a written law. While the English law is
being increased by written statutes and EU
regulations the role of the judge will be
limited to the new legislation.