LLB LAW NOTES ON JURISPRUDENCE

INTRODUCTION
The term person and personality has been the object of legal and philosophical and moral
sense which means rational substratum or quality of a human being. It has also been used in
the anthropological or biological sense by which person means as one of the species. In the
legal sense the person has special meaning and importance. In law the word person is not
confined to any human being but is given an extended meaning which includes entities or
associations other than human beings. An attempt therefore is made to define the concept of
person which possesses judicial meaning.
Legal personality is an artificial creation of law. Entities recognized by law are capable of
being parties to a legal relationship. A natural person is a human being whereas legal persons
are artificial persons! such as a corporation! created by law and given certain legal rights and
dutiesof a human being" a being! real or imaginary! who for the purpose of legal reasoning is
treated more or less as a human being. All legal persons can sue or be sued.
A legal personality is what grants a person or organization rights and responsibilities under
the law. Since, legal systems are built for use by human beings! humans are usually
automatically assumed to have a legal personality. In the modern world! the concept of legal
personality is frequently a part of discussions about the rights or legal responsibility of
entities such as corporations that cannot be defined by a single person. The concept has also
been and continues to be an important part of the discussion on human rights.
LEGAL PERSON
The term Person is derived from the Latin word 'Persona' it means those who are recognized
by law as being capable of having legal rights and duties.
Definition:
1) Salmond - " A person is any being whom the law regards as capable of rights and bound
by legal duties.
2) Savigny defines the term person as the subject or bearer of a right.
3) According to Gray A person is an entity to which rights and duties may be attributed.
4) According to Austin the term 'person' includes physical or natural person including every
being which can be deemed human.
According to Section 11 of the Indian Penal code the word person includes any
company or association, or body of Persons, whether Incorporated or not.
THE COMMON LAW PERSPECTIVES
Generally, there are two types of person which the law recognized, namely the natural and
artificial person. The former is confined merely for human beings while the latter is

generally referred to any being other than human being which the law recognized as having
duties and rights. One of the most recognized artificial persons is the corporation.
Legal scholars, particularly the jurists, have always explored the issue on the recognition of
corporation as a legal person. In the study of jurisprudence, the separate legal personality of
corporation is based upon theories, which are concentrated upon the philosophical
explanation of the existence of personality in beings other than human individuals. W.
Friedman stated that:
“All law exists for the sake of liberty inherent in each individual; therefore, the original
concept of personality must coincide with the idea of man.”
Kinds of Persons: Persons are of two kinds namely, Natural Persons and Legal Persons.
There are three kinds of Legal persons i.e. Corporations, institutions and fund or estate.
Corporate personality is a fiction of law. It is an artificial personality given to corporation
whereby certain rights and duties are attributed to it. There are two kinds of persons are as
follows:
I) Natural persons
II) Legal persons (legal persons are also known as juristic, fictitious or artificial persons)
• Natural Person:
A natural person is a human being possessing natural personality. According to Holland, a
natural person is a human being as is regarded by the law as capable of rights and duties.
Requisite of normal human being is that he must be born alive moreover, he must possess
essentially human characteristics. Generally, a person/human being who has a capacity to sue
and be sued is person.
• Legal persons / Artificial persons:
A legal person has a real existence but it's personality is fictitious. A fictitious thing is that
which does not exist in fact but which is deemed to exist in the eye of law.
Example: Company or corporation, idol etc.
CORPORATION:
A corporation or Company is an artificial or fictitious Person created by the personification of
a group or a series of individuals. The individuals forming the corpus of the corporation is
called its members. there are two kinds of Corporation or a Company.
• Corporate sole and
• Corporate Aggregate.
Theories of Corporation
Even though there are many theories which attempted to explain the nature of corporate
personality, none of them is said to be dominant. It is claimed that while each theory contains

elements of truth, none can by itself sufficiently interpret the phenomenon of juristic person.
Nonetheless, there are five principal theories, which are used to explain corporate personality,
namely, the fiction theory, realist theory, the purpose theory, the bracket theory and the
concession theory.
There are many theories of Corporate Personality. Different Jurists propounded different
theories to explain the nature of Corporate personality, but the best-known theories of a
Corporate Personality are as follows:
1) FICTION THEORY:
The fiction theory of corporation is said to be promulgated by Pope Innocent IV (1243-
1254). This theory is supported by many famous jurists, particularly, Savigny and Salmond.
According to this theory, the legal personality of entities other than human beings is the result
of a fiction. Hence, not being a human being, corporation cannot be a real person and cannot
have any personality on its own. Originally, the outward form that corporate bodies are
fictitious personality was directed at ecclesiastic bodies. The doctrine was used to explain that
the ecclesiastic colleges or universities could not be excommunicated or be guilty of a delict
as they have neither a body nor a will. The famous case of Salomon v A Salomon Co Ltd is
a proof of the English court adoption of the fiction theory. In this case, Lord Halsbury stated
that the important question to decide was whether in truth an artificial creation of the
legislature had been validly constituted. It was held that as the company had fulfilled
requirements of the Companies Act, the company becomes a person at law, independent and
distinct from its members.
Salmond, made it clear that a human being is the only natural person while legal persons
govern any subject matter other than a human being to which the law attributes personality.
States, corporations and institutions cannot have rights of a person but they are treated as if
they are persons. Under this theory, rights and duties attached to corporation as artificial
person totally depend on how much the law imputes to it by fiction.
The personality the corporation enjoys is not inherent in it but as conceded by the state. Due
to the close connection made in this theory as regards to relation of legal personality and the
power of the state, fiction theory was claimed to be similar to the theory of sovereignty of
state which is also known as the concession theory.
2) REALIST THEORY:
The founder of this theory was a German jurist, Johannes Althusius while its most
prominent advocate is Otto von Gierke, who not only responsible for the scholarly wisdom
of his writings but also as the challenger to the entire basis of Roman jurisprudence.
According to this theory, a legal person is a real personality in an extra juridical and pre-
juridical sense of the word. It also assumes that the subjects of rights need not belong merely
to human beings but to every being which possesses a will and life of its own. As such, being
a juristic person and as ‘alive’ as the human being, a corporation is also subjected to rights.
Under the realist theory, a corporation exists as an objectively real entity and the law merely

recognizes and gives effect to its existence. The realist jurist also contended that the law has
no power to create an entity but merely having the right to recognize or not to recognize an
entity.
A corporation from the realist perspective is a social organism while a human is regarded as a
physical organism. The realists contended that action of the corporation is deem to be carried
out on its own, similar to the way of the normal person and not by its agents or
representatives like those of the incapable, such as the infant and insane. While human uses
his bodily organ to do an act, the corporation uses men for that purpose. Some of the realist
theory followers even claimed that similar to the human being, juristic person also has
organs.
This theory is found to be favored more by sociologists rather than by lawyers. While
discussing the realism of the corporate personality, most of the realist jurist claimed that the
fiction theory failed to identify the relation of law with the society in general. The main
defect of the fiction theory according to the realist jurist is the ignorance of sociological facts
that evolved around law making process. Hence, by ignoring the ‘real capacity and functions’
of corporation in the real world, the fiction jurists had failed to see the ‘live’ possessed by a
corporation. The realist contended that by rejecting the fiction theory, one would succeed to
reject an abstract conception and untrue account of the reality with which the practical lawyer
has to deal.
According to the realist jurist, lawyers have to acquire the habit to depart from the plain
meaning of law and go behind the scenes of the legal platform for the realization and justice
which law is supposed to introduce to life.
3) CONCESSION THEORY:
The concession theory is basically linked with the philosophy of the sovereign national state.
It is said to be essentially a product of the rise of the national state at a time when there were
rivals between religious congregations and organizations of feudal origin for the claim of
national state to complete sovereignty. Under the concession theory, the state is considered to
be in the same level as the human being and as such, it can confer on or withdraw legal
personality from other groups and associations within its jurisdictions as an attribute of its
sovereignty. Hence, a juristic person is merely a concession or creation of the state.
Concession theory is often regarded as the offspring of the fiction theory as it has similar
claim that the corporations within the state have no legal personality except as it is conceded
by the state. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are
found to support this theory. Nonetheless, it is that while the fiction theory is ultimately a
philosophical theory that a corporation is merely a name and a thing of the intellect, the
concession theory is indifferent as regards to the question of the reality of a corporation in
that it focuses on the sources of which the legal power is derived. Dicey took the view that
sovereignty is merely a legal conception which indicates the law-making power unrestricted
by any legal limits.

4) PURPOSE THEORY:
This theory is also known as the theory of Zweckvermogen. Similar to the fiction and
concession theories, it declares that only human beings can be a person and have rights.
Entities other human is regarded as an artificial person and merely function as a legal device
for protecting or giving effect to some real purpose. As corporations are not human, they can
merely be regarded as juristic or artificial person.
Under this theory, juristic person is no person at all but merely as a “subject less” property
destined for a particular purpose and that there is ownership but no owner. The juristic person
is not constructed round a group of persons but based on the object and purpose. The property
of the juristic person does not belong to anybody but it may be dedicated and legally bound
by certain objects. This theory rationalized the existence of many charitable corporations or
organizations, such as trade unions, which have been recognized as legal persons for certain
purposes and have continuing fund. It is also closely linked with the legal system which
regard the institution of public law (Anstalt) and the endowment of private law (Stiftung) as
legal personalities.
5) BRACKET THEORY:
This theory is also known as the “bracket” theory. It was set up by Ihering and later
developed particularly by Marquis de Vareilles-Sommiéres. Basically, this theory is similar
to the fiction theory in that it recognizes that only human beings have interests and rights of a
legal person. According to Ihering, the conception of corporate personality is essential and
merely an economic device by which simplify the task of coordinating legal relations. Hence,
when it is necessary, it is emphasized that the law should look behind the entity to discover
the real state of affairs. This is clearly in line with the principle of lifting of the corporate veil.
Under this theory, rights are not inherent attributes of the human will and that an individual is
not a subject of right by reason that he possesses a will. On the contrary, the will is at the
service of law and it is the interest of man which the law protects.
The symbolist theory is often acknowledged for its availability to justify corporate
personality from non-legal facts but it has been repeatedly rejected by the courts in common
law jurisdictions because it denies the law by deducing that the only legal relation which is
fixed and certain can be discovered by removing the ‘brackets’ of the corporation and
analyzing the relations of the human beings involved.
THE KELSEN’S THEORY:
Another important theory worth noting is Kelsen‟s Theory of corporate personality.
According to Kelsen, personality is “only a technical personification of a complex of
norms, a focal point of imputation which gives unity to certain complexes of rights and
duties”. Kelsen shows that there is no significant difference between the legal personality of

an individual and that of corporation, for in the case of both what is known as legal
personality is nothing but a complex of norms, that is to say, what is constituted by the
bundle of rights and duties and liabilities centering round, and the norms which rule the
behavior of individuals are also the norms that determine the rights and duties of
corporations. For organizing rights and duties, a convenient legal device is that of legal
personality.
The greatness of Kelsen‟s theory lies in the concept of personality as a complex of norms,
giving unity to certain complexes of rights and duties. The acceptance of Kelsen‟s theory as a
correct theory, like the acceptance of the QuasiRealist or Quasi-Fiction Theory of personality
of corporation, opens out a new avenue in favor of corporations being entitled to enjoy
fundamental rights under the constitution where such rights are guaranteed. If there be no
difference between the „personality‟ of a natural being and that of a non-natural being like
the corporation, why should fundamental rights be denied to the corporation and why should
it be said that corporations are not „persons‟? Why should Acts, like the Citizenship Act in
India, lay down that the term „person‟ does not include a corporation or anybody of persons
whether corporate or incorporate? Under the modern law, as it should be, relating to
corporations, Kelsen‟s theory should be a welcome theory, as it would enable the recognition
of the corporation as a person as much as a natural person, and would entitle it to greater
rights as also subject it to greater duties than at present.
CONCLUSION
From the discussion on jurisprudence theories of corporate personality, it is observed that
main arguments lie between the fiction and realist theories. The fiction theory claimed that
the entity of corporation as a legal person is merely fictitious and only exist with the
intendment of the law. On the other hand, from the realist point of view, the entity of the
corporation as a legal person is not artificial or fictitious but real and natural. The realist also
contended that the law merely has the power to recognize a legal entity or refuse to recognize
it but the law has no power to create an entity.
Referring to the English company law case law, it can be seen that in most cases, the court
adopted the fiction theory. Salomon v A Salomon Co Ltd is the most obvious example. It is
also observed that fiction theory provides the most acceptable reasoning in justifying the
circumstances whereby court lifted the corporate veil of corporation. If the entity of the
corporation is real, then the court would not have the right to decide the
Circumstances where there is separate legal entity of the corporation should be set aside. No
human being has the right to decide circumstances whereby the entity of another human
being should be set aside. Only law has such privilege.
Nonetheless, the realist contention that the corporation obtain its entity as a legal person not
because the law granted it to them but because it is generated through its day to day
transaction which are later accepted and recognized by law also seem acceptable.

From the foregoing analysis it may be concluded that incorporation has great importance
because it attributes legal personality to non-living entities such as companies, institutions
and group of individuals which helps in determining their rights and duties. Clothed with
legal personality these non-living entities can own, use, dispose of property and can sue and
be sued in their own names. Unincorporated institutions are denied this advantage because
their existence is not different from the members.
Thus, the existence of corporation requires a special legal framework and body of law that
specifically grants the corporation legal personality, and typically views a corporation as a
fictional person or a legal person. As such corporate statutes typically give corporations the
ability to own property, sign binding contracts, pay taxes in a capacity that is separate from
that of its shareholders.
Finally expressing these views about the two important theories of legal personality, it can be
observed that the existence of corporation is neither wholly fictitious nor wholly real, instead
it is partly fictitious and partly real. However, this assertion hardly serves any useful purpose
in the determination of rights and duties of corporate entities. On each theory the duties
imposed by the State are the same and the persons on whose actual wills those duties are
enforced are same, hence it would not be incorrect if contended that the difference between
the fiction theory and the realist theory is merely verbal.

LEGAL RIGHTS AND DUTIES
INTRODUCTION
MEANINGS OF "RIGHT"; LEGAL AND MORAL RIGHTS
"Right” in the ordinary sense of the terms means a number of things, but it is generally taken
to mean "the standard ofpermitted action within a certain sphere"1. As a legal term, it means
the "standard ofpermitted action by law". Such permitted action of a person is known as his
legal right. Here we are concerned with legal rights only.
A legal right must be distinguishing from a "moral or natural right". "A legal right is an
interest recognized and protected by a rule oflegaljustice - an interest the violation of which
would be a legal wrong, done to him whose interest it is, and respectfor which is a legal
duty". "Moral" or "natural right" means "an interest recognized andprotected by a rule of
natural justice - an interest the violation which would be a moral wrong, and respectfor which
is a moral duty"1.
The difference between the two lies in the sanction behind them. The violation of a legal right
is redressed by the state whereas behind the moral rights there are only moral and social
rebuke or disapprobation.
Prof. HOLLAND distinguished legal right from "might" and "moral right". About "might" he
says: "if a man by his own force, or persuasion can carry out his wishes, either by his own
acts, or by influencing the acts ofothers, he has the 'might', so to carry out his wishes, either
by his own acts,, or by influencing the acts of others, or by influencing the acts ofothers, he
has the 'might'so as to carry out his wishes".
About "moral rights" he says: "Ifthe public opinion would view with approval or at least with
acquiescence, a person carrying out his wishes, with disapproval any resistance made to his
doing it, then he has a 'moral right' so as to carry out his wishes". About legal rights he says:
"ifirrespective ofhis having or not having, either the might or moral right on his side, the
power ofthe state willprotect him in so carrying out his wishes, and will compel acts such acts
or forbearance on the part of other people, as may be necessary in order that his wishes may
be so carried out, then he has a legal right so to carry out his wishes. A man may have a legal
right to do some act which may be against morals. But it does not mean that the legal rights
are always opposed to morals".
The ethical or moral views of community influence the law in determining the conduct it will
protect and all the actions it will prohibit.
Principles of liability, in the last analysis, must be derived from the moral sense of the
community. Therefore, in most cases, moral rights and legal rights coincide and they clash
only in rare cases. Many jurist’s "positivists" are opposed to the idea of "natural rights" and
they do not regard it as more than a fiction or by a metaphor.

Briefly, the real credit of development of human civilization goes to law and its prohibitive
processes which apprised man of his rights and duties towards one another. These rights and
duties are regulated by the law prevalent in the society. It is well known that the main
purpose of law is to protect human interests by regulating the conduct of individuals in the
society. For the attainment ofthis object, it is necessary that state should make use of its
physical force for the enforcement of legal rights and punish those who violate these rights.
It therefore, follows that in all civilized societies law consists of those rules which regulate
human conduct and it is the state which enforce the rights and duties created such rules. The
conception ofright accordingly is offundamental significance in modern legal theory because
rights are indispensable for all civil societies and are recognized and enforced by the state.
While studying the conception oflaw, we noticed that SALMOND defined the term law as
consisting ofthe rules recognized and acted on by courts ofjustice. The object ofthe
administration ofjustice is the maintenance ofsafety and security ofthe people within the state
and the object is achieved by the cue of the physical force of the state in enforcing rights and
punishing their violation. The term "right" has, therefore, a fundamental legal conception and
requires a careful study.
SALMOND defines a right as an interest and protected by a rule of right. It is any interest,
respect for which is a duty, and this disregard ofwhich is a wrong.
KINDS OF LEGAL RIGHTS
The term 'Right' in ordinary sense, means, " the standard of permitted action within a certain
sphere. It means the standard of permitted actions by law; such permitted action of a person is
known as his legal right. Any action of a person permitted by law is called 'right' similarly,
the expression 'legal right' means " the standard of permitted action by law. A legal right may
be distinguished from a moral or natural right. Legal right is an interest recognized and
protected by law. In short legal rights are legally protected interest. If any person violates the
legal right it would be a legal wrong, and for such legal wrong there is legal remedy.
There can be on duty without a right and According to Hibbert “a right is one person’
capacity of obliging others to do or forbear by means not of his own strength but by the
strength of a third party. If such third parts is God, the right is Divine. If such third parts is
the public generally acting though opinion, the right is moral. If such third parts is the stale
acting directly or indirectly, the right is legal.”
Legal Rights may be classified under following heads:
1) Right in Rem and Right in Persona -
'Rem' means world and 'Persona' means persons. The Right in Rem is the right available
against the whole world while right in Persona is the right against a particular person. Right
in Persona generally arises out of contractual obligations for example - breach of contract.
Whereas right in rem is generally outcome of law.

For example - Tort, Crime.
Right in Persona is generally transitory in nature, which can be transferred in right in rem.
Right in rem is a final thing, whereas right in Persona is transitory in nature.
2) Personal and Proprietary Right -
Personal right is in respect of person of owner of right whereas Proprietary right is in respect
of property of which the person is an owner. Proprietary Rights are those, which constitute a
man's property or wealth. These are the rights, which possess some economic or monetary
value and constitute the estate of the Person. Right to land, debts and Goodwill or patent
rights are all Proprietary right.
Personal right includes right to safety, to repetition Personal rights are also important like
Proprietary right. For example - right to reputation. Personal Rights is having no economic
value. They relate to Person's well-being or status.
3) Positive and Negative Rights -
Positive rights have corresponding Positive duty. Positive right therefore the right when
some positive act is required to be done by the person who has the corresponding duty. Thus
the person on whom such duty lies must do some positive act.
While on the other hand negative rights are those rights when some negative act by way of
omission is required. Negative rights correspond to negative duty, and the person on whom
such negative duty lies shall omit (not to do) such act.
4) Principal and Accessory rights -
The principal right is a basic or main right vested in Persona under law. They are Vital and
important Rights. While accessory right is incidental or consequential right. They are not
essential but are apparent to the more basic general right.
5) Perfect and Imperfect Rights -
Perfect right corresponds with perfect duty. Perfect rights are recognized and also enforced
by law and an action can be taken against the wrongdoer by filing a suit in Court of Law for
the breach of it.
While Imperfect right corresponds with Imperfect duty, which are not recognized by law and
hence cannot be enforced by law.
For example 'A' advanced loan to 'B'. 'B' is bound to repay that Loan. 'A' has perfect
right to recover loan from 'B' and 'B' has perfect duty to pay the amount of loan to 'A'.
If 'B' failed, then 'A' can file Suit against him in court of law for recovery of loan. But if
it is time-barred loan, for example no suit filed within the limitation period (within 3
years) and 'A' was sleeping over his right for a pretty long time. 'A' can claim for the
same as it becomes imperfect right which cannot be enforced by law.

6) Right in Re-proporia and Right in Re-aliena -
Right in Re-proporia is a right in respect of one's own property. Right in Re-proporia
contemplates absolute ownership. Thus, it is the outcome of jurisprudence aspect of
ownership.
Whereas right in Re-aliena, is the right in respect of property of another person. Right in Re-
aliena is the outcome of jurisprudence aspect of dominant heritage and servient heritage. For
example - right of easement.
7) Vested and Contingent Right -
Vested and Contingent rights are depending on the relationship as to owner of right and right
itself. Vested right means which is already vested in person, the person already has such right
through it depends upon the happening of certain events, that event is going to happen. (See
also... Vested interest)
Whereas is in Contingent interest the right is dependent upon happening or non-happening of
certain events which may or may not happen.(See also.. Difference between vested interest
and contingent interest)
8) Legal and Equitable Right -
Legal rights are the rights given by common law Courts of England. Common law was based
on statute by way of custom, usage. Equitable rights are the outcome of law of equity given
by the court of chancellor, or equity Court based on principle of natural justice and
conscience of Lord Chancellor.
By Judicature Act 1873, 1875 both systems are unified, but as per J. Snell 'Both the systems
flow in one stream but their water does not mix.'
After the unification of the both these systems English law came into existence. But still there
are certain principles and rights, which are classified as equitable right and legal right.
9) Corporeal and Incorporeal Right -
Here a fine distinction is made of the subject matter of the right. Corporeal rights are having
physical existence. For example - I owned a book, the book has physical existence, so my
right in respect of the book, is Corporeal in nature.
Whereas incorporeal rights are those right in respect of such subject matter having no
physical existence. For example - copyright of the book or trademark. Both Corporeal
Incorporeal rights are legally protected rights.
10) Primary and Sanctioning Right -
Primary right is basic right. It is independent Right. These are the right ipso facto. for
example - right in rem; right to reputation, right to satisfy is the primary right. If right of
reputation is violated then there is legal remedy. in Tort or in Crime. There is force behind it.

Sanctioning rights are the consequential rights. They are not right ipso facto. They are right in
Persona, which originate from some wrong. For example - from violation of another right.
Thus, Sanctioning Right is supporting right to primary right.
11) Public and Private Rights -
Public Rights are those Vested in by state. For example - right to use High-way, right to vote
etc. A private Right is one which is exercised by an individual to protect his benefit.
RELATIONSHIP BETWEEN RIGHTS AND DUTIES
It is debatable question whether rights and duties are necessarily co relative. According to
one view, every right has a corresponding duty. Therefore, there can be no duty unless there
is someone to whom it is due. There can be no right without a corresponding duty or a duty
without a corresponding right, just as there cannot be parent without a child. Every duty is a
duty towards some person or persons in whom a corresponding right is vested. Likewise,
every right is right against some person or persons upon whom a co relative duty is imposed.
Every right or duty involves a vinculum juris or a of legal obligation by which two or more
persons are bound together. There can be no duty unless there is someone to whom it is due.
Likewise, there can be no right unless there is someone from whom it is claimed.
According to Holland, every right implies the active or passive forbearance by others of the
wishes of the party having the right. The forbearance on the part of others is called a duty. A
moral duty is that which is demanded by the public opinion of society and a legal duty is that
which is enforced by the power of the state.
The view of Salmond is that rights and duties are co relatives. If there are are duties towards
the public, there are rights as well. There can be no duty unless there is some person to whom
that duty is due. Every right or duty involves a bond of obligation.
Minerva mills ltd v. union of India
The Supreme Court observed that there may be a rule which imposes an obligation on an
individual or authority, and yet it may not be enforceable in court of law, and therefore not
give rise to a corresponding enforceable right in another person. But it would still be a legal
rule because it prescribes a norm of conduct to be followed by such individual or authority.
The law may provide a mechanism for enforcement of this obligation, but the existence of the
obligation does not depend upon the creation of such mechanism. The obligation exists prior
to and independent of, the mechanism of enforcement. A rule of law because there is no
regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist
despite any problem relating to its enforcement.2
Rights and duties are two phases of the same thing. Rights are considered to be essential for
the expansion of human personality. They offer to the individual a sufficient scope for free
action and thus prepare ground for self-development.

Although rights arc of great significance in a democratic stale yet they become meaningless
in the absence of duties. Rights involve obligations as well.
An individual has rights so that he may make his contribution to the social good. One has no
right to act unsocially, man’s rights imply his claims on society and duties indicate the claim
of society on the individual. This means that an individual owes to the society certain duties
as he obtains rights.
According to Prof. Laski there is a four-fold connection between rights and duties.
1. My Right implies Your Duty:
Every right of an individual involves a corresponding duty of others. For example, my right
to life implies that others should give protection and security to my life.
My right to move about freely implies a corresponding duty resting on others that they should
not interfere with my free movement.
2. My Rights imply My Duty to admit a similar Right of others:
The conditions of life which I need for myself arc also needed by others. This indicates that
every right is a duty in itself. If an individual exercise a right, he must bear in mind that the
same right belongs to others as well.
If I have the right to freedom of speech, it is my duty to see that I may not be a hindrance in
the free exercise of this right by others.
3.I should exercise My Right to promote Social Good:
A person He guarantees the rights to the majority in the society to remove the should not
abuse the right given to him by the State.
For example, if he uses the right to freedom of speech for spreading communal bitterness or
society cannot deprive man of these rights; these are inherent and to preach violence and
anarchy, it becomes an act counter to the social alienable rights, good. The state will then be
justified in depriving the person of his right if he has abused it.
4. Since the State guarantees and maintains My Rights, I have the Duty to support the State:
The state is the agency for social good and it is the duty of an individual to perform ones
duties honestly.
The above-mentioned relations between rights and duties, there for clearly prove that rights
and duties go hand in hand. A healthy civic is impossible without the co-existence of rights
and duties. Rights without duties have no meaning and duties without rights have no sense.
CONSTITUTIONAL PROVISIONS
The Indian Constitution is one of the largest written Constitutions, drafted after the path
breaking and epoch-making French Revolution, American Revolution and Russian

Revolution. It also came after Industrial revolution in Europe, the Liberal Thinkers and their
Ideas. And it had been framed long after the Unification of the German and Italian Nations by
Bismarck and Garibaldi. Therefore, every Progressive and Noble Thoughts of the World have
been adopted and built into Indian Constitution. And in the words of Baba Saheb, framer of
the Constitution – not to do so would have only been irrational. The Indian Constitution,
naturally had derived a lot from the unwritten British Constitution. It had adopted the British
Parliamentary System, British Legal System and Principles of Administration. And it had
also incorporated many main Provisions drawn from various Govt of India Acts made by the
Imperial British for India and Indian People, and to the British Colonial Govt in India for its
Governance. Those were only to be expected.
The Rights Freedoms and Duties of the Individuals, as Citizens of the Country, had been built
into the Constitution in various Parts Chapters and Articles. It will be a Study of the whole
Constitution, all the Parts, Articles and Schedules, if we are to talk of all the Rights and
Duties. For almost all the Articles and Provisions such as the Preamble and Schedule hold
many promises and hopes to the Citizens, and even to other Individuals. Some of the Rights
are specific and special for specified segments of the Society, otherwise marginalised
discriminated exploited and suppressed. These are specifically in addition, and apart from
those clearly laid out, as the Rights and Duties of all Citizens.
The Rights one can derive, depends upon the way the People or Individual agitate demand
legislate and govern themselves, before the authorities, the political parties, elected peoples
representatives, in the Legislatives and Parliament, before the political executives in the
Government, and ultimately before the Government and Courts. However, the significant and
apparently clear Rights and Duties are, specifically discussed below.
Fundamental rights
The Constitution has been made by Indians for Indians and their Government. Sovereignty of
the Nation lies with the People. In fact it is the People, who give the Rights to others, to all
Institutions public and private, every individual in the Country – Citizens or not, and to
themselves. The People also provide the Directions to the Government, the Political Parties
and their Members, who come forward to represent them, and help Govern the Nation.
The Rights start from the Right to –
1. Citizenship of the Country
2. The hopes and expectations that flow from Part IV DIRECTIVE PRINCIPLES OF
STATE POLICY
However, the Constitution Part IV on Directive Principles of State Policy, is only a Directive
and guideline for the State, Parliament and Legislatives, Political Executives, government,
the bureaucracy and planners, and to the people. The directive principles of state policy, do
not give any direct rights and powers to the individuals. People cannot, in the normal
circumstances go to courts to demand any of the directive principles of state policy, as their
Rights or Dues, or ask the Courts to enforce them.

Apart from these there are specific Fundamental Rights. They are large, specific, significant,
essential and important to any Citizen in any part of the Country. In fact, most of these are
needed by any Citizen of any Nation living in any part of the World.
The Fundamental Rights are contained in exclusive Part III of the Constitution. They are the
–
1. Right to Equality – Articles 14, 15, 16, 17 and 18
2. Right to Freedom – Articles 19 to 22
3. Right against Exploitation – Articles 23 and 24
4. Right to Freedom of Religion – Articles 25 to 28
5. Cultural and Educational Rights – Articles 29 and 30
6. Right to Constitutional Remedies – Articles 32 to 35
Right to Property and the concerned Article 31 relating to Compulsory acquisition of
property was omitted and repealed by the Constitution (Forty-fourth Amendment) Act 1978.
Saving of Certain Laws, with related Articles 31A to 31 D were added by various
Constitutional Amendments. However, Article 31 D Saving of Laws in respect of Anti-
National Activities was subsequently repealed by the Constitutional (Forty-third
Amendment) Act of 1977.
Rights have no meaning at all, unless one can force those others, or authorities or the
Government to give the Rights being denied, withheld or delayed, deliberately or otherwise,
to yield and give the rights. Or one should be able ask or force the Govt and other authorities
to intervene, and ensure or force those who are denying, withholding or standing in the way
of the Rights, discipline them, and get the Rights. Hence, the Constitution provides, vide
Article 32, remedies for enforcement of Rights conferred by this Part. This Article 32, in fact
is the most important provision of the Constitution, forming part of Part III on Fundamental
Rights. It provides every Citizen and every individual, the Right to move the Supreme Court
by appropriate proceedings for the enforcement of the Rights.
Others are –
1. under the Right to Equality,
a) Article 14 provides the Right of EQUALITY BEFORE LAW
b) Article 15 provides rights for prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
C) Article 16 gives the right to equality of opportunity in matters of public employment

D) Article 17 deals with rights associated with the abolition of untouchability, and
E) Article 18 deals with rights associated with the abolition of titles
2. under the Right to Freedom,
a) Article 19 on PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM OF
SPEECH etc, it is said that,
(1) All citizens shall have the right –
(a) To freedom of speech and expression
(b) To assemble peaceably and without arms
(c) To form association or unions
(d) To move freely throughout the territory of India
(e) To reside and settle in any part of the territory of,
(f) To practice any profession, or to carry on any occupation, trade or business
At the same-time vide part (2) of the same Article 19, the Constitution allows the Operation
of any existing law, permits the States to make any law to impose restrictions on the above
rights, that can be considered as reasonable.
b) Article 20 gives the Rights of PROTECTION IN RESPECT OF CONVICTION FOR
OFFENCES, in some unfair or unjust manner
c) Article 21 gives the Rights of PROTECTION OF LIFE AND PERSONAL LIBERTY
d) Article 22 gives the Rights for PROTECTION AGAINST ARREST AND DETENTION
IN CERTAIN CASES, in some unfair and unjust manner
3. under the Rights against Exploitation,
a) Article 23 deals with PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND
FORCED LABOUR
b) Article 24 deals with PROHIBITION OF EMPLOYMENT OF CHILDREN IN
FACTORIES, etc
4. Right to Freedom of Religion – Articles 25 to 28
5. Cultural and Educational Rights – Articles 29 and 30
6. Right to Constitutional Remedies – Articles 32 to 35
DUTIES OF INDIVIDUALS

The Duties of individual Citizens of India have been laid out in Article 51A, Part IVA of the
Constitution, as Fundamental Duties. These were not there in the Original version of the
Constitution framed and adopted by the Constituent Assembly. These were inserted by the
Constitution (Forty-second Amendment) Act passed by the Parliament in 1976. –
FUNDAMENTAL DUTIES
It shall be the duty of every citizen of India –
a) To abide by the Constitution and respect its ideals and institutions, the National Flag and
National Anthem;
b) To cherish and follow the noble ideals which inspired our National Struggle for Freedom;
c) To uphold and protect the sovereignty, unity and integrity of India;
d) To defend the Country and render National Service when called upon to do so;
e) to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
f) To value and preserve the rich heritage of our composite culture;
g) To protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;
h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
i) To safeguard public property and to abjure violence;
j) To strive towards excellence in all spheres of individual and collective activity so that the
Nation constantly rises to higher levels of endeavour and achievement.
All Rights and Duties always remain as silent Provisions interned in the Constitution. It is
unto the People to realise them. They have to make the Government to work, and ensure that
they do their Duties and they get their Rights. Where necessary they have to fight for them,
go to the Courts to agitate for them, and struggle in the Society to retain them. As Baba Saheb
said, in his last speech in the Constituent assembly on 25thNovember 1949, while moving the
Draft Constitution for adoption, the success or effectiveness of any Law and Constitution
depends upon those who work them.4
CONCLUSION
Thus, rights and duties are correlatives and there can be no right without a duty like there can
be no parent without a child. And in Indian constitution there are many provisions for rights
and duties of the individuals as fundamental rights and fundamental duties.

LEGALRIGHT-HOHFELDIANANALYSIS
LEGAL RIGHT IN A WIDER SENSE
Legal rights in wider sense not necessarily include the corresponding duty. The „right‟ in
wider sense has been identified with powers, privilege and immunities. Salmond says, In
generic sense, a legal right may be defined as any advantage or benefit conferred upon a
person by a rule of law.
As already intimated, the term "rights" tends to be used indiscriminately to cover what in a
given case may be a privilege, a power, or immunity, rather than a right in the strictest sense;
and this looseness of usage is occasionally recognized by the authorities.The analysis of
Salmond was carried further by Hohfeld. He analysed it with greater accuracy.
Hohfeld‟s description of relations between various forms of legal entitlements reflects truths
on features of legal rights. Countless references thereof prove Hohfeld‟s great influence on
analytical jurisprudence.
Hohfeld‟s contribution is mostly contained in two articles published in the Yale Law Journal
in 1913 and 1917 respectively.
The one published in 1913 and entitled ‟‟Some Fundamental Legal Conceptions as Applied
in Judicial Reasoning ’’is one of the most cited articles in law reviews in general.
It is important to point out that Hohfeld had not expected the article to be a revolutionary
theoretical contribution to the legal science. On the contrary, his motifs had been primarily
pedagogic, i.e. he had intended to show that developments in the field of jurisprudence and in
the field of legal pedagogy had to be connected.
Hohfeld‟s intention was to emphasize the educational effects of a clear analytical opinion on
legal issues.
He denied that the article, as may be suggested by its title, represented “a merely
philosophical inquiry as to the nature of law and legal relations”, but its main purpose was to
“emphasize certain oft neglected matters that may aid in the understanding and in the solution
of practical, everyday problems of law”.
Hohfeld did reveal that his articles “are intended more for the law school students than for
any other class of readers”.
Three types of relationships/juralrelations:-
• Jural correlatives/ correspondents (vertical arrows).
• Jural opposites/ negations ( cross arrows).
• Jural contradictories (horizontal arrows).
Jural Relations

The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea
that all the jural relations can be reduced to rights and duties. That was singled out as the
main obstacle to comprehension and successful resolution of legal issues. According to
Hohfeld, there are eight fundamental legal conceptions. Those fundamental legal conceptions
aresui generis,which means that all the attempts aimed at creating a formal definition are not
only dissatisfying but also useless.
The most satisfying approach is to lay down various jural relationsin a scheme of “opposites”
and “correlatives” and, then, to proceed with stating examples of their individual scope and
application in concrete cases. Hohfeld saw $every jural relation as a relation between two
persons.
Hohfeld based his analytical system on earlier Salmond‟s system. Salmond identified
threejural relations. According to Salmond, the notion of right was used in a wider sense in
order toindicate “any advantage or benefit which is in any manner conferred upon a person
by a rule of law”.
Those rights are divided into different categories:
• Rights in the strict sense, which are defined as interests protected by the law by
imposing its duties with respect to the rights upon other persons,
• Liberties defined as “interests of unrestrained activity” and
• Powers “when the law actively assists me in making my will effective”.
Salmond found no generic term which would be correlative to right in a wider sense, and
would include all the burdens imposed by the law. Nevertheless, he, correlative to those three
categories of advantages or benefits, singled out three types of legal burdens: duties,
disabilities and liabilities.
Salmond also made a table of “correlatives” but he did not pay much attention to the
“opposites”.
On the other hand, Hohfeld cleared out the relation between the eight fundamental legal
conceptions by inventing different terms for the correlatives of liberties and powers and by
designing the relations between the opposites.
Conduct is regulated by the imposition of duties. Claims may assist in achieving this end, but
if it can be otherwise achieved, there is no reason why the mere fact that Y is under a duty
with regard to X should confer upon X, or anyone else for that matter, a corresponding claim.
There is nothing to prevent it being the law that every breach of duty, of whatsoever sort,
shall be dealt with by the machinery of the state. Such a state of affairs, though possible,
would be inconvenient, for it would stretch state machinery to breaking point. Where duties
are of private concern, the remedies are best left to individuals to pursue in the event of their
breach. Above all, it is expedient to give aggrieved persons some satisfaction, usually by way
of compensation. Every system of law has to decide which breaches of duties shall be taken
up by the public authorities on their own motion, and which shall be left to private persons to
take up or not as they please. The distinction between 'public' and 'private' law is quite

arbitrary. It would seem, therefore, that there is no intrinsic reason why claims should be a
necessary concomitant of duties. Indeed, some modem writers, for different reasons, reject
the whole idea of claim as redundant. If non-correlative duties .are accepted, they do not fit
snugly into the Hohfeldian scheme.

Possession: Meaning, Definition and Kinds of possession
According to Salmond, in the whole range of legal theory, there is no conception more
difficult than that of Possession. Possession is the most basic relation between man and a
thing. Possession is an evidence of ownership.
Meaning:
"Possession" literary means physical control over a thing or an object. It expresses the
closest relation of fact that can exist between a thing and the person, who possess it. In law,
possession means it includes not only physical control over a thing but also an intention to
exercise that physical control. Example: A has an article in his hand. In other words, he is in
possession of that article. The person who is in possession is called a 'Possessor'. In human
life, consumption of material things is very essential and it would be Impossible without the
position of the material things. Therefore the concept of possession is of utmost practical
importance in human life.
Definition:
The concept of possession is though basic and essential in human life, it is a difficult to
define. There is no fixed or precise definition of possession because it is legal as well as
factual concept. Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil
Kumar, AIR 1980 SC 52, held that it is impossible to work out a completely logical and
precise definition of Possession uniformly applicable to all situation in the context of all the
statutes.
It is very difficult to define the term Possession. Some Jurists have given different definitions.
John Salmond:
Salmond defines Possession as, "possession is the continuing exercise of a claim to
the Exclusive use of an object."
Savigny:
Savigny defines Possession as, "intention coupled with physical power to exclude
others from the use of material object.
Salmond criticized Savingy's definition and ground that Savingy committed an
error by including the element of physical power in his definition.
O.W. Holmes:
Holmes defines Possession as, "To gain Possession a man must stand in a certain
physical relation to the object and to the rest of the world, and must have certain intent."
Maine:

Maine defines the possession as, "physical detention coupled with the intention to
hold the things detained as one's own.
Sir Frederick Pollock:
Sir Frederick Pollock defines Possession as, "In common speech a man is said to possess to
be in possession of anything of which he has the apparent control from the use of which he
has apparent power for excluding others."
Ihering:
The best among them is the definition given by Ihiring. According to him,
"whenever a person looked like an owner in relation to a thing, he had possession of it unless
Possession was denied to him by rules of law based on practical convenience."
Elements of Possession
From the above definition we could see in that possession has two essentials -
1) Actual power over the object possessed. i.e. corpus possessionis and
2) Intention of the possessor to exclude any interference from others. i.e. animus possidendi.
According to John Salmond, both corpus and animus must be present to constitute
Possession. Ownership is a legal concept whereas Possession is factual as well as legal
concept.
The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman
Law.
Categories of Possession: Possession is divided into two categories.
a) Possession in fact: The relation between a person and a thing which he possesses is called
possession infact or defacto possession. It indicates physical control of a person over a thing.
For instance, if a person has caged a parrot, he would be deemed to have possession of it so
long as the parrot is in the cage but as soon as the parrot escapes from the cage or set free, he
would lose possession over it. Certain points regarding ossessioninfact must be carefully
noted. They are:
(I) There are certain things over which a person cannot have physical control e.g. sun, moon,
stars etc.
(2) The physical control over the object need not be continuous. For instance, I possess my
coat when I am wearing it, I still have posses-sion of it when I take it off and hang it on a peg
when I go to sleep. The basic idea is that I should be in a position to resume control over it in
normal course whenever I so desire. In other words, physical control may continue even if a
person relinquishes actual control temporarily.

(3) In order to constitute possession infact, merely having physical control of a thing is not
enough but it must be accompanied by capacity to exclude others from the possession of it.
However, some jurists do not consider this element necessary for possession.
(4) In order to determine the question of acquisition, abandonment or termination of
possession, the distinctive feature is the desire of the person whether he desires to retain
possession or not.
b) Possession in law: Possession in Law is also termed as de jure possession. It has already
been stated that the law protects pos-session for two obvious reasons, namely:
(i) by conferring certain legal rights on the possessor;
(ii) by penalising the persons who interfere with the possession of aperson or by making him
pay damages to the possessor. Whenever a person brings a suit for possession the first thing
that the Court ascertains is whether the plaintiff was formerly in real possession of the thing
in dispute. It is true that in most of the cases actual or factual possession testifies legal
possession yet there are many situations when a person does not have possession in law
although he is in actual possession of the object.
In the legal sense, possession is used as a relative term. The law is generally not concerned
with the question as to who has the best title, but it is concerned as to which of the parties
before it has a better title.
Possession in fact is actual or physical possession. It is physical relation to a thing.
Possession in law means possession in the eye of law. It means a possession which is
recognized and protected by law. There is sometimes a discrepancy between possession in
fact and position in law, although usually possession exists both in fact and in law in the same
person. A person who is in de facto possession of a thing also comes to have de jure
possession.
Modes of acquiring possession:
There are two modes of acquiring possession i) Delivery and ii) Possession.
i) Delivery: Delivery completes voluntary act from one person to another. The transferor
gives actual position to the transferee. It is usually a lawful mode of possession. Delivery
may be actual of constructive. In actual delivery the thing is physically delivered.
ii) Taking: Taking implies an Act exclusively on the part of the person who physically takes
the Possession. It is acquisition of the Possession without the consent of previous Possessor.
It is the possession without the consent of the Possessor. Sometimes it is said to be unilateral
act. Transferee acquires the possession without the knowledge or consent of the former

Possessor of the thing. It is usually possessio-civilis. It may or may not be lawful. If it is
lawful then it is legal possession. i.e. possessio-juri.
Methods of Transfer of possession
Transfer or acquisition of possession can be done in three ways, Viz., by taking, by delivery
and by the operation of law.
1) As regards the acquisition or transfer of possession by taking, it is done without the
consent of the previous possessor. This also may be done in two ways. One is called the
rightful taking of possession and the other the wrongful taking of possession. A shopkeeper is
entitled to get some money from a customer. This is an example of the rightful taking of
possession. If a thief steals from an individual, his acquisition of possession is wrongful.
However, if a person captures a wild animal which does not belong to anybody, possession is
called original.
2) Another way of acquisition of possession is by delivery or traditio in such a case, a thing is
acquired with the contents and cooperation of the previous possessor, delivery is of two
kinds, Viz., Actual and constructive. In the case of actual delivery immediate possession is
given to the transferee. There are two categories of actual delivery. According to one
category, the holder retains mediate possession and according to the other the holder does not
retain mediate possession. If I lend sell the same, I do not retain any mediate possession.
Constructive delivery is that which is not direct or actual. There are certain things which
cannot actually be Transferred by the owner to the purchaser or by the transferor to the
transferee. In such Cases, constructive delivery alone is possible. There are three kinds of
constructive delivery and those are traditiobrevimanu, Constitution possessorium and
attornment in the case of oftraditiobrevimanu, possession is surrendered to one who has
already immediate possession. In such a case, it is only the Animus that is transferred as the
corpus of possession already with the transferee. I have already lent a book to somebody, if I
sell the same book to him, it is a case of traditiobrevimanu. In the case of Constitution
possessorium it is only the mediate possession that is transferred and the immediate
possession is retained by the transferor. I may sell my car to somebody but I may retain the
physical possession of the same for some time in spite of the payment of price to me . In such
a case, the Animus is lost and I keep the car on behalf of the purchaser. It is to be observed
that in all cases of constructive delivery, there is a change of Animus alone and corpus of
possession remains where it was before.
3) Transfer of possession can be made by the operation of law as well. This happens when, as
a result of law, possession changes hands. If a person dies, the possession of his property is
transferred to his successor and legal representatives.
Kinds of Possession
The institution of property has indispensable relationship with the mankind. There are two
important rights related to property namely i) ownership and ii) possession.

Possession is an evidence of ownership. It is very difficult conception of utmost practical
importance in legal theory.
Following are the important kinds of possession.
1) Corporeal Possession : Those things, which are having physical or material existence,
wherein direct relationship with the thing, are possible. for example, House has physical
existence which can be perceived by our senses. The possession in the house therefore is
Corporeal Possession. Therefore corporeal possession is the possession of material things,
movable as well as immovable such as the Car , book , pen, wristwatch, etc.
2) Incorporeal Possession : It means Possession of immaterial or intangible things. These are
the things, which do not have physical existence and therefore cannot be perceived by our
senses. Therefore possession in respect of this thing is known as incorporeal possession. for
example - Copyright, Trademark, Patent, Goodwill etc.
According to Salmond, corporeal possession is Possession of an object whereas incorporeal
possession is the possession of a right.
3) Mediate Possession : It is the Possession of a thing through another, either through his
friend, servant for agent. As the thing remains, in possession with another, the possessor has
lesser degree of physical control over such thing.
Illustration :
a) 'X' has a car, which he leaves with his driver. The possession of the driver will be
immediate whereas the Possession of 'X' will be mediate.
b) 'A' purchased a house through his agent and the agent got the possession. A's possession is
said to be the mediate possession.
4) Immediate Possession : It is also called as Direct Possession. Direct or primary possession
by a person over a particular object, which acquires or gets directly or personally. In
immediate possession, as the thing is in possession of the possessor directly, he has higher
degree of control over such thing. It means that there is no other person holding the thing.
Illustration :
a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.
b) 'A' purchased a house and takes Possession of the property it is called direct or immediate
Possession.
5) Constructive Possession : Constructive possession is not actual possession it is a
possession in law and not possession in fact. According to Pollock and Wright, it is a
possession which arises only by the construction of law. Example : The delivery of the keys
of a building.

6) Adverse Possession : It means holding the land on his own behalf of some other person. if
adverse possession continues peaceful and undisturbed for that number of years, he can claim
ownership and the true owner's right( ownership) gets extinguished.
7) De facto Possession :De facto Possession exists where the thing is in the immediate
occupancy of a party. The person in de facto possession has the physical control of the thing
to the exclusion of others and has Animus and Corpus over the material object. De facto
possession may be described as actual Possession.
8) De jure Possession : De jure possession can be described as posssession in law. De jure
possession exists when person claims a thing as his own in natural normal legal manner by
occupying a thing without any dispute as to his legal right to possess and enjoy the thing.
Legal possession may exist with or without property in possession. In case of De jure
possession it is just possible that a man I have ceased to live in a house but without intending
and to abandon it for good as the owner of the house.
Possessory Remedies:
Possessory Remedies are those which exists the protection of Possession even against
ownership. Proprietary remedies are those which are available for the protection of
ownership. In many legal systems, possession is provisional or temporary title even against
the true owner. Even a wrongful Possessor who is deprived of his possession can recover it
from any person whatsoever on the ground of his possession. Even the true owner, who
retakes his own, must first restore possession to the wrongdoer and then proceed to secure a
possession on the ground of his ownership.
Why law protects possession?
The possessor has better title against the whole world, except true owner. Even if the
possession is wrongful, the possessor if deprived of wrongfully, he is protected by law
providing for possessory remedy.
There are many reasons for the protection of possession
1) According to the philosophical School of jurists, possession is protected because a man by
taking possession of an object has brought it within the sphere of his will. The freedom of the
will is the essence of personality and has to be protected so long as it does not conflict with
the universal will which is the State. As possession involves an extension of personality over
the object, it is protected by law. As the reputation of a person he is protected against
defamatory attack, his possession is protected as he has projected his Personality over the
object possession.
2) Possession is an Evidence of ownership, Section 110 of Indian Evidence Act 1872-
Provides ' when any question is whether any person is owner of anything of which he is

shown to be in possession, the burden of proving that he is not owner is on the person who
affirm that he is not the owner.
3) The possession even if it is wrongful is a good title against the whole world except the true
owner. 4) Possession is protected for the preservation of peace: It is the natural human
Instinct that he does not easily part of with what he possesses. The interference with the
possession leads to violence. Thus the protection is given to the Possession to aid criminal
law and it prevents a breach of peace.
5) Section 145 of CrPC deals with the dispute of immovable property to provide speedy
remedy for the prevention of breaches of peace out of such dispute. The object of this section
is to enable an executive Magistrate to intervene and pass a temporary order in regard to the
possession of the property in dispute, till the competent civil court determines the right of the
parties. The executive Magistrate shall determine the possession of immovable property on a
particular date and issue an order declaring such party to be entitled to Possession, thus
restore to Possession to the party who was forcibly and wrongfully dispossessed of.
6) Possession is protected as a part of law of tort. Law protects possession not only from
disturbance by force but from disturbance by fraud. The protection thus afforded as a part of
the law of tort.
7) Section 53a Transfer of Property : Doctrine of part performance which provides, there is a
contract of sale in respect of immovable property where in transferor by writing, signed by
him agrees to transfer such immovable property and the transferee has taken the Possession
of the immovable property and continuous to be in possession of immovable property and the
transferee has done something in furtherance of such transfer and ready and willing to
perform transfers have done something his part under the contract of transfer, then even
though such contract is required to be registered by any law and not registered in fact then
also the transferor id debarred from claiming any right against such transferee.
8) Section 47 sale of Goods Act: right of the seller to lien. The seller if unpaid seller is and if
the Possession is still with the seller he can retain the goods.
9) Right of Bailee in contract of bailment: Indian Contract Act 1872, Section. 170, 171. The
Bailee too has a right to lien the goods bailed to unless he is paid remuneration by Bailor till
then he is entitled to keep the position of the goods.
10) In offence of theft in IPC Section 378: Possession is essential element. Even though the
possession was wrongful and the Possession of such thing is taken without the consent of the
possessor with dishonest intention.
Relevant case law:
a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Fact: In this case the plaintiff was the owner of the land. He gave his land to defendant
Company on lease for the purpose of excavation and erection of gas works thereon. During
the course of excavation one of the man of the defendants Company found a pre-historic boat
buried 6 feet below the surface.
Issue: Issue before the Court was whether the boat belonged to the landlord or lessee.
Held: J. Chitty observed that the landlord was entitled to the boat against the Company
though it was discovered by the Company. It was observed that it was immaterial that the
landlord was not aware of the existence of the boat. He was in possession of the ground not
merely of the surface. Hence everything that lay beneath the surface down to the center of the
earth consequently in possession of the boat. It did not matter that the plaintiff was not aware
of the existence of the boat.
b) South Staffordshire Waterworks Co. V. Sharman, 1896.
Fact:In the instant case Plaintiff Company appointed defendant servant to clean out a pond
upon their land and in doing so he found certain gold ring at the bottom of it. Dispute arose
between plaintiff Company and the defendant servant as to the possession of the gold ring.
Issue: To whom the Gold ring belong?
Held:The plaintiff Company was in first possession of the gold ring and is not the defendant,
who acquired no title to them. It was observed that the possession of land carries with it in
general possession of everything which is attached to or under the land.
Conclusion:
Possession is the most basic relation between man and a thing. Possession is prima facie a
proof or an evidence of ownership there is no fixed or precise definition of possession
because it is legal as well factual concept. The four essentials of possession are subject matter
of possession, physical control, intention and knowledge. Possession is nine points in law and
law provides remedies to person having possession.

OWNERSHIP
INTRODUCTION
The concept of ownership is one of the fundamental juristic concepts common to all systems
of law. This concept has been discussed by most of the writers before that of possession.
However, it is pointed out that it is not the right method. Historically, speaking the idea of
possession came first in the minds of people and it was later on that the idea of ownership
came into existence. The idea of ownership followed the idea of possession.
DEVELOPMENT OF THE IDEA OF OWNERSHIP
The idea of ownership developed by slow degrees with the growth of civilization. So long as
the people were wandering from place to place and had no settled place of residence, they
had no sense of ownership. The idea began to grow when they started planting trees,
cultivating lands and building their homes. The transition from a pastoral to an agricultural
economy helped the development of the idea of ownership. People began to think in terms of
mine and thine. To begin with, no distinction was made between ownership and possession.
However with the advancement of civilization, the distinction became clearer and clearer.
This distinction was made very clearly in Roman law. Two distinct terms were used to point
out the distinction and these were Dominium and possession. Dominium denoted the absolute
right to a thing. Possessio implied only physical control over a thing. The English notion of
ownership is similar to the conception of dominium in Roman law. According to Holdsworth,
the English law reached the concept of ownership as an absolute right through developments
in the law of possession.[i]
OWNERSHIP UNDER ANCIENT INDIAN LAW
The right to ownership was also recognized under the ancient Indian law. The great
commentators, notably, narada, Yajnavalkya ,vyas etc. emphasized the right of ownership of
property was to be used for noble cause and good motives. The ancient hindu law ordained
men to behave in a particular manner in relation to person or property of another. They were
warned that misuse of the right of ownership would entail them moral and public indignation
and they would be liable for punishment. The ancient laws of prescription, bailment, sale, etc.
were based on distinction between ownership and possession.
The ancient hindu jurists mentioned seven modes of acquisition of ownership of property,
namely,
• Inheritance
• Gain
• Purchase
• Conquest
• Investment of wealth
• Employment
• Acceptance of gifts

According to manu, only property of the king or state could be acquired by conquest but the
king had no right to interfere or acquire the private property of the subjects of the conquered
territory. As regards the property of no-one’s land (i.e. res nullius) Manu says that it belonged
to him who first reclaimed it under cultivation. Where a thing had no previous owner such as
bird or a fish, the rule of res nullius was to apply and the one who took it first was its owner.
In case of some treasure was discovered, the person who found it took the whole of it if it was
found on his land, and if it was found on some other’s land, he could acquire only half of it.
DEFINITION OF OWNERSHIP
Ownership, in its most comprehensive signification, denotes the relation between a person
and any right that is vested in him. That which a man owns is in all cases a right. When, as is
often the case, we speak of the ownership of a material object, this is merely a convenient
figure of speech. To own a piece of land means in truth to own a particular kind of right in
the land, namely, the fee simple of it.
Ownership, in this generic sense, extends to all classes of rights, whether proprietary or
personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a
mortgage, or a share in a company, or money in the public fund’s, or a copyright, or a lease,
or a right of way, or the fee simple of land. Every right is owned; and nothing can be owned
except a right. Every man is the owner of the rights which are his.
ACCORDING TO KEETON,“The right of ownership is a conception clearly easy to
understand but difficult to define with exactitude. There are two main theories with regard to
the idea of ownership. The great exponents of the two views are Austin and Salmond.
According to one view, ownership is a relation which subsists between a person and a thing
which is the object of ownership. According to the second to second view, ownership is a
relation between a person and a right that is vested in him.”
HOLLAND’S DEFINITION: Holland defines ownership as ‘a plenary control over an
object’. According to Holland, an owner has three rights on the object owned. They are (i)
Possession (ii) Enjoyment (iii) Disposition.
He says that the right of possession is ‘inherent of ownership’. However, it may be separated
as in case of mortgage or letting out. According to him, the right of enjoyment means the
“right of user and of acquiring the fruits, or in increase of the thing – The right is limited only
by the rights of the state or of other individuals.’’ The power of disposition means not only
the power of alienation but it includes the power of alteration and destruction of the property.
DUGUIT’S DEFINITION: According to Duguit ownership is a relation between a person
and a thing. On account of this relation the person has the power of disposal, use, and
employment of the thing according to a regle de droit.
AUSTIN DEFINITION: A widely accepted definition is that of Austin, who defined
ownership as a right indefinite in point of user, unrestricted in point of disposition , and
unlimited in point of duration over a determinate thing.

Indefinite in point of user
It is practically impossible to enumerate the wide variety of ways in which the things owned
may used by the owner. However, the Austin describes ownership as aindefinite in point of
user , it may not be taken to mean that the owner has an absolute right to use his property in
whatever way he likes. All legal system impose condition on the user of property .It is well
accepted that every owner must use the object of ownership so as not to injure the rights of
other persons. For instance, the owner cannot use his property in such a way as to cause
nuisance to his neighbours. Similarly, an owner cannot prevent the entry of officers of the
state into his property, when such entry is authorized by law as in case an officer of justice
entering the premises of anyone in pursuance of a warrant issued by a court. Ownership is
also subject to encumbrance in favour of others , in which case the power of user enjoyed by
the owner is curtailed by the rights of encumbrances.
Unrestricted in point of disposition
This denotes the absolute rights of alienation enjoyed by an owner as a necessary incidence
of ownership. However, here again limitations exist. The law governing transfer of property
may seriously interfere with the owner’s power of disposition. For instance, a transfer of
property made with an intent to defeat or delay creditors is not permissible under the law.
This rights of encumbrances also constitute a limitation on the power of disposition.
Unlimited in point of duration
When we describe ownership as unlimited in the point of duration, it means that a right is
capable of existing so long as a thing owned exists. The right is not extinguished even on the
death of the owner, because ownership devolves upon his heirs who are the persons of
appointed by law to succeed the property remaining undisposed at time of his death.
This quality of ownership also cannot be taken as absolute. There are situations, which limit
the duration of ownership. For instance, a testator may settle his property on his widow with a
condition that on her remarriage the property shall devolve upon his children. Here the
widow remains the vested owner of the property until her remarriage, but his ownership is
limited in point of duration. The rule against perpetuity is another limitation upon the
unlimited duration and power or disposition of the owner.
Finally, it is to be stated that although be speak a ownership as a right, it would be preferable
to speak of it as a collection of right, liberties,powers and immunities, following Hohfeld’s
analysis. We must also recognised that some of these rights, liberties, powers and immunities
are frequently found to decide either for a limited period, or perpetually in persons other than
a owner.
SALMOND DEFINITION:
According to the Salmond ownership vests in the a complex of rights which he exercises to
the exclusive of all others. For salmond what constitute ownership- a bundle of rights which
is here in an individual salmond’s definition thus point out two attributes of ownership-

• Ownership is a relation between a person and right that is vested in him
• Ownership is incorporeal body or form.
CHARACTERISTICS OF OWNERSHIP
There are certain characteristics as such:
• It is absolute or restricted. An owner of a property may be its absolute owner and
nobody else may have any interest in the same. It is also possible that there may be
certain restrictions on the right of ownership and those restrictions may be imposed by
law or by volunatary agreement. An owner may lease out his property. He may
mortgage the same. Thus, he comes to have a limited ownership. A compulsory
restriction may be imposed on ownership if another person comes to have an
easement on a particular property.
• It is also possible that certain restrictions may be imposed on the owners of property
in times of national emergency. The house of any owner may be requisitioned and any
compensation may be fixed by the prescribed authority. The Government may appoint
some authority to control the rents charged by the owners of property.
• The Government may demand certain taxes from the owners of property. If those
taxes are not paid, the Government may confiscate their property of that portion of
property which is necessary to realisethe money due to the Government.
• The ownership of a person does not diminish with his death. He is entitled to leave his
property to his property to his successors. The owner can distribute the property even
in his own lifetime.
• Certain disabilities have been imposed on infants and lunatics with regard to the
disposal of property. Obviously, they are not competent to enter into valid contracts.
They are not expected to understand and appreciate all the implications of their
actions.
MODES OF ACQUISITION OF OWNERSHIP
Broadly speaking there are two modes of acquiring ownership, namely, (1) Original, and (2)
Derivative.
1. Original Acquisition of ownership takes place when ownership is acquired by some
personal act on the part of the acquirer. It may by three ways:
• Absolute – When a thing is acquired res nullius, i.e. , which has no previous owner.
• This has been called Parigrah by Manu who stated that the first striker of an arrow to
a prey whether a bird or wild animal, becomes its owner.
• Original acquisition of ownership may also be by specification which means a person
by working up on material belonging to another makes a new thing. For example, if a
sculptor makes a statue from the clay belonging to the another, he becomes the
original owner of that statue.
• Extinctive Acquisition of ownership , that is when a person by some act on his part
extinguishes the ownership of the previous owner and acquires its ownership himself,
it is called extinctive acquisition. For example, acquisition of ownership by
prescription or adverse possession for a prescribed period which is 12 years in India.

• Accessio – This is called accessory acquisition that is, when the ownership of
property is acquired by way of accession to some existing property. Examples are
produce of lands or animals or fruits of trees. Manu has termed this mode of
acquisition as Prayog which means acquiring by accession.
2. Derivative acquisition – When ownership is derived from a previous owner, it is
called derivative acquisition of ownership. It takes place when ownership is acquired
by inheritance or gift or purchase, etc. In the Indian context, the law of succession ,
transfer of property, sales of goods, etc., regulate acquisition of ownership of the
property by derivative mode.
DISTINCTION BETWEEN CUSTODY, DETENTION, POSSESSION AND
OWNERSHIP
Custody is a relation of a person to an object in which he has no full control over the thing, in
the other words, he has no required animus to exclude others. For example, a customer
examining a piece of cloth in a shop before the shopkeeper who has custody of that cloth.
Detention is a relation where person has in fact possession over a thing but law due to certain
reasons does not recognize it as possession. For example, a servant has the detention over
things of his master with him.
Possession is a relation of a person to an object which law recognises as possession.
Possession is the external relisation of ownership; it is a valuable piece of evidence to show
the existence of ownership. Possession does not give the right to destroy, waste or even to
alienate the property except by way of a sub- lease.
Ownership is a relation of a person to an object which is exclusive or absolute and ultimate.
The person who stands in this relation is called the ‘owner’ and he has a right of complete
control and enjoyment of the object. Thus, a right of ownership is a right of dominium over
the property concerned, so as to include the available rights attached to ‘ownership’- the right
to possess the property in a de jure capacity, the right to use the property, as also the right to
alienate or even to destroy the property though all those rights may not be present at the same
time.
SIGNIFICANCE OF OWNERSHIP IN MODERN SOCIAL CONTEXT
Ownership is a socially significant concept because it is an index of wealth,and social
position. Ownership of land was means of controlling government. In a feudal system based
on land ownership, the feudal lords wielded tremendous influence,and even the qualification
to vote was based on ownership of land. The social aspect of ownership also highlights the
important principle that on owner shall enjoy his interest in a manner compatible with the
interest of others. As Lord Evershed said; ‘ Property like other interests has a social
obligation to perform’. The extent of this social obligation reflects the social policy of the
legal system.
It is important to remember that ownership is not merely a bundle of rights, liberties and
powers. It is also carries with it corresponding burdens in the nature of duties,liabilities and

disabilities which prescribe and regulates how an owner should utilise his property for the
benefit of other individuals or society. Property owned by person is liable to execution for the
debts incurred by him. The liability to pay property tax,wealthtax,etc, is also imposed in the
social interest. When control legislation imposes restriction on the way in which one may use
his property.
The typical individualist approach to ownership is reflected in the definition of Austin,which
we have analysed earlier. However,gradually the emphasis began to shift from the individual
to society-from ownership as a fundamental right of property to the wants of people and
one’s duty towards others. It came to be recognised that limitation are integral to the concept
of property,and not exception to an otherwise unlimited right.
The Marxist theory of ownership draws attention to the evil role it has played. It begins
with individual working with its own tools and raw materials. Later,the profit accumulated
through trading manufactured products elevates him to position to provide the tools and raw
materials, and get other people to provide the labour.The manufactured products, however
remain in his ownership,not in that of the labourer, and he continues to trade it as his own
property. It is the concept of ownership that enables the exploitation of workers. Ownership
of the means of production-tools and raw materials-became a source of power over persons
for private profit.
This promoted inequality, because using the power of dismissal and threat of unemployment
and consequent starvation,the employer was able to dictate unfair terms of service. The
owners of the means of production became industrial commanders wielding enormous
powers that strike at the fundamentals of society.
Karl Renner,following the Marxist analysis,expressed the view that law should take account
of the increasingly public character of ownership of property by investing it with the
characteristics of public law. Two concepts of ownership a public and a private,have to be
recognised. Ownership of the means of production should be public,that is nationalised,and
only ownership of consumer goods should be opened to private individuals. The distinction
lies not in the nature of ownership,but in the things capable of being owned.
Dr. Friedmann writes that the concept of ownership has exerted considerable influence as a
source of social power in various stages of the development of society.
Professor Renner has traced the gradual evolution of ownership in its social perspective. He
pointed out that in early stages of development of society the owners of industries had to
themselves collect tools, raw materials and labour resources to run the industry and they
earned huge profits by the sale of their products. When they amassed sufficient wealth, they
could afford to hire labour and run the industry by providing tools and raw material to them.
The industrialist was still the sole owner of the goods so produced and had complete
ownership of the profits earned by the industry. Thus the ownership of means of production
become the source and symbol of power and social status which the industrialists enjoyed on
the strength of the labour working under them. This eventually led to the development of
management – labour relationship in the field of industries. The power of the employers to

sack and change the service conditions of workers arbitrarily exhibited their influence in the
society as a dominant class. However, in course of time, the labour movement raised voice
against the exploitative tendencies of indutrialists and capitalists as a result of which public
ownership gained primacy over private ownership. The policy of nationalization of industries
adopted by progressive socialist countries is directed towards the fulfillment of this objective.
Dr. Friedmann attributes three main reasons for the declining influence of private ownership
in modern social order.
Firstly, the gap between employer and labour class is gradually narrowing down due to trade
union movement, nationalization of industries and national insurance schemes and now the
employers can exploit the workers by misusing their power. As a result of this the bargaining
power of both the entrepreneurs and the workers is more or less equal.
Secondly,The profiteering by industrialists has been considerably regulated through
legislative measures and effective tax laws.
The industrialists are now required to contribute a considerable part of their income and profit
to the public fund of the state. This has helped in equitable distribution of wealth.
Thirdly, the encouragement provided to the corporate sector in recent decades has helped in
separating the power element from ownership. During the capitalistic era, both ownership and
power are centralized in the industrialists which was detrimental for the labour class. But
today the real power vests in the management comprising experts in their respective fields
and the owners are divested of this power. Thus power has been separated from the
ownership. Furthur in order to ensure that the management does not misuse their power and
authority, comprehensive company legislation and labour and industrial laws have been
enacted by almost all countries.
Dias and Hughes have observed that in order to appreciate the role of ownership in the
present social order, its formal analysis shall not serve any useful purpose, instead there
should be greater emphasis on its functional analysis.
CONCLUSION
Ownership and possession are two words, which we commonly use in our daily life without
thinking about their legal incidents or consequences. However, even when we use these
words in our ordinary conversation, we generally associate certain rights and obligations with
these words .It is surprising that a child who has not learned these two words is capable of
understanding the meaning of these words, and also the difference between the concepts of
ownership and possession.
For instance, if you give a toy as a birthday gift to a child, he/she immediately understands
that the toy belongs to him/her. He/ she considers himself/herself as the owner of the toy,and
does not permit other to touch it.

If he / she permits another child to play with the toy, he/ she expects that it will be returned to
him/her after same time. In his/her mind there is a clear knowledge that he/she parting with
the possession of the toy , but has no intention of giving up ownership .
On the other hand, he/she may voluntarily give the toy as a gift to her dear friend. Now
he/she has no expectation of getting it back, and knows that he/she has relinquished not only
the possession of the toy, but also its ownership .
Law converts these simple ideas to legal concepts by defining their meaning with precision
and refinement. Ownership as a legal concepts denotes a legal relation between a person who
is called the owner of the right , and a things over which he can exercise certain rights. The
right of ownership is the most complete and supreme right that can be exercised over
anything.
It consist four rights, namely: 1.Using the things;2.excluding others from using it; 3.disposing
of things; and4.destroying it.
Ownership is a socially significant concept because it is an index of wealth, and social
position. Ownership of land was means of controlling government. In a feudal system based
on land ownership, the feudal lords wielded tremendous influence, and even the qualification
to vote was based on ownership of land. The social aspect of ownership also highlights the
important principle that on owner shall enjoy his interest in a manner compatible with the
interest of others.
As Lord Evershed said; ‘Property like other interests has a social obligation to perform’. The
extent of this social obligation reflects the social policy of the legal system.
It is important to remember that ownership is not merely a bundle of rights, liberties and
powers. It is also carries with it corresponding burdens in the nature of duties, liabilities and
disabilities which prescribe and regulates how an owner should utilise his property for the
benefit of other individuals or society. Property owned by person is liable to execution for the
debts incurred by him. The liability to pay property tax, wealth tax, etc, is also imposed in the
social interest. When control legislation imposes restriction on the way in which one may use
his property.
The typical individualist approach to ownership is reflected in the definition of Austin, which
we have analysed earlier. However, gradually the emphasis began to shift from the individual
to society-from ownership as a fundamental right of property to the wants of people and
one’s duty towards others. It came to be recognised that limitation are integral to the concept
of property, and not exception to an otherwise unlimited right.

LIABILITY
Meaning and definition of `liability’—According to Austin, liability consists of those things which a
wrongdoer must do or suffer. It is the ultimatum of law and has its source in the supreme will of the
state. Liability arises from a breach of duty which may be in the form of an act or omission. Liability
has occupied a place of pride in the hierarchy of legal concepts. It has been used to include three
things:
• To express the position of a person who undertakes to do some-thing.
• To express the condition of a person who has failed in the performance of duty; and
• To express the condition of a person who has not failed to perform his contract but has
caused damage to the other person.
“Liability or responsibility, says Salmond: “is the bond of necessity that exists between the wrong-
doer and the remedy of the wrong.”
Markby says: “The word liability is used to describe the conditions of a person who has a duty to
perform.” Thus, liability is the plight, condition, or the state of the person who has acted, for borne or
omitted contrary to law. It may also be described as the state of the person who has violated a right or
acted contrary to a duty.
Kinds of liability—Liability is either “civil” or “criminal”, either “remedial” or “penal”. Whilst
criminal liability is always penal, civil liability may be either remedial or penal.
THEORY OF REMEDIAL AND PENAL LIABILITY
Civil and criminal liability cannot be treated as identical with that between remedial and
penal. For the distinction has been made on the notion of the legal consequences of the action
against the wrong. Thus where after a successful proceeding the defendant is ordered to pay
compensation for damages, or to pay a debt or to make a specific performance of a contract,
the liability"may be known a remedial, but where it after a successful proceeding the
wrongdoer is awarded punishment, which may be the fine, imprisonment etc. it may be called
penal liability. Though civil liability may generally be remedial and the criminal penal, the
argument is not always true, because in some cases liability may be both remedial and penal.
So also is true of criminal liability, though in exceptional cases.
Remedial Liability
In so far as remedial liability.is concerned it is founded on the well-known maxim - “ubi jus
ubi remedium” which means, where there is right, there is remedy. Thus where the law
creates or imposes duty, it also enforces its specific performance. For every breach of duty,
there is a remedy in the law. But there are certain exceptions where the duty is not
specifically enforced.
• DUTIES OF IMPERFECT OBLIGATION
In the first place, there are duties of imperfect obligation. A time-barred debt is an example of
it. Thought eh debt exists in law, it is not enforceable.
• DUTIES WHICH BYNATUREAREINCAPABLE OFSPECIFIC PERFORMANCE

Another exception of the rule are duties of such a nature, which once broken cannot be
specifically enforced, for example, in an act done the defendant cannot be made to refrain
from it. Everyone has a right to reputation, and therefore, there is a corresponding duty
imposed on others not to violate such right. But if at a libel, is committed the specific
enforcement of corresponding duty of defendant “i.e. the person who has committed libel’’ is
not possible. In other words, once a mischief has been done, it cannot be undone. In such case
damages are perhaps the only adequate remedy.
• WHERESPECIFIC PERFORMANCE IS INEXPEDIENT OR INADVISABLE
In the third place, there are cases where thought eh specific performance of duty is plausible,
the tew does not enforce its specific performance but rather awards damages to the plaintiff.
For example, law does not enforce the specific performance of a promise of marriage or
painting to picture but normally award damages in such cases.
In other words, “ubijus ibi" remedium - which means where there is right there must be a
remedy. When law creates a duty it ensures its fulfillment also. For the breach of duty there is
some remedy prescribed by law, and it is enforced by law.
Thus, the purpose of remedial liability is to ensure the specific enforcement of plaintiffs
rather than punishing the wrongdoer. According to the theory of remedial liability whenever
law creates a duty it should enforce the fulfillment ofsuch duty. The law imposes remedial
liability on one who fails to perform such duty.
Briefly ordinarily a duty is enforced by law except in the following cases where law will not
enforce the same:
• Duties of imperfect application, e.g. time-barred debt
• Incapable of specific performance due to its intrinsic nature — here only compensation will
come into play e.g. tarring one’s reputation.
• Specific performance inexpedient- promise of marriage. Court would not insists on
enforcing a marriage. -In all above cases duty is there but it cannot be enforced. Remedy is
lost.
Penal Liability
As stated earlier, the main purpose of penal liability is either directly or indirectly, to punish a
wrong-doer.
The basic principle underlying penal liability is contained in the maxim - "actus non facit
reum, nisi mens sit rea ” which means that act alone does not amount to crime, unless it is
accompanied by guilty mind. Therefore, two elements i.e. act and guilty mind are essential to
constitute a crime. No person can be punished merely because his act resulted into some
crime unless it was accompanied by “Mens Rea” or guilty mind. Conversely, mere presence
of “mens rea" shall not constitute a crime unless it is accompanied by some act. Thus "act ” is
he physical element of the crime and “mens rea ” is the mental element.

Generally a man is hold criminally liable only for those wrongful acts which he does either
willfully or negligently. There are, however, some exceptional cases when law imposes strict
liability as in case of offences under the lincensing acts or offences against public health. In
such cases, the act itself becomes punishable even without the presence of guilty mind or
negligence. That apart, the criminal law exempts certain categories of cases from penal
liability. These are commonly known as defences or general exceptions and include mistake
of act, accidents, infancy, minority, necessity, self-defence, voluntary intoxication, etc. If the
offender succeeds in establishing any ofthese defences, he is not punished though his offence
may satisfy the two conditions of “actus ” and “mens rea".
The maxim “actus non facit reum nisi mens sit rea” stated long before by St.AUGUSTINE1,
became, with slight change the best known maxim of the English criminal law though the
words ultimately used by COKE. As late as in 1798, KENYON, C.J. had stated that “the
intent and act must both concur to constitute the crime”. Since that time the English reports
do not show any case in which the authority ofLord KENYON has been denied by the
English courts.
The maxi thus, which has been accepted by the English courts as a cardinal doctrine of
English law for centuries, recognizes that there are two constituent elements in crime,
i) A physical element, and
ii) ii) A mental element, and
It makes plain that at common law no man may be found guilty of crime and therefore legally
punishable unless in addition to having brought about a harm which the law forbids, he had at
the time a legally reprehensible state of mind. It is, therefore, necessary to reach an
understanding ofthese two constituent parts of criminal responsibility.
According to AUSTIN intention and negligence are the alternative forms in which ‘‘mens
rea” can exhibit itself. It is a condition precedent for the existence of guilt. In other words, a
person is liable to be punished if he does a wrongful act intentionally or negligently.
SALMND calls it the physical or material condition of liability. Ifthere is no act, there can be
no punishment.
To quote Justice BRYAN : “the thought ofman cannot be tried, for the devil itself knoweth
not the thought ofman
KENNY gives the following example : “a man takes an umbrellafrom a stand at his club with
intent to steal it, but finds it his own”. He has committed no offence. The second condition 6f
penal liability is “mens rea" or guilty mind. An act is punishable only if it is done
intentionally or negligently. Intention and negligence are the alternative forms in which
“mens rea ” can exhibit itself.
The conditions of penal liability, the act does not constitute a guilt unless it is done with a
guilty intention. Two things are required to be considered in this connection and those are the
act and the “mens rea” or the guilty mind ofthe doer of the act. "Mens rea ” requires the

consideration of intention and negligence. The act is called the material condition of penal
liability and the "mens rea” is called the formal condition ofpenal liability.
STRICT AND VICARIOUS LIABILITY
Generally, a man is liable for his own wrongful acts. He is not liable for the wrongful acts done by
others. But under certain circumstances, i.e., tortious acts, a man may be held liable for the wrongful
acts of others.
This is popularly known as “Vicarious Liability”. In the Law of Torts, the master is liable for the acts
done by his servant under this principle, because of his superiority in money, position, influence, etc.
Examples:
1. Liability of the principal for the tort of his agent.
2. Liability of the partners for each other’s tort.
3. Liability of the master for the tort of his servant.
This principle applies in tortious acts, because of the maxim “Respondent Superior”, who has
economical stability to meet and pay the damages for the consequences of such acts. But as a general
rule, in criminal law, this principle does not apply.
“Vicarious Liability is unknown to Criminal Law”: It is the concept of the punishment and criminal
law. It is in the law. It is in the interest of public safety. The object of punishment is twofold:
i) Prevention of offences; and ii) Protection of the society.
The person, who does a criminal act, must be punished accordingly. It is in the interest of the State.
The persons, who help an accused in doing that wrong, are also punishable under the law of abetment
and criminal conspiracy. Basically, the vicarious liability is not recognised by the penal law. Section
149 IPC is an exception to this basic principle.
While disposing Munivel vs. State of T.N. (AIR 2006 SC 1761), the Supreme Court held: “Section
149 of the Penal Code provides for vicarious liability, if an offence is committed by any member of an
unlawful assembly in prosecution of a common object thereof or such as the members of that
assembly knew that the offence to be likely to be committed in prosecution of that object, every
person who at the time of committing that offence was member would be guilty of the offence
committed.
The common object may be commission of one offence while there may be likelihood of commission
of yet another offence, the knowledge whereof is capable of being safely attributable to the members
of the unlawful assembly.
Whether a member of such unlawful assembly was aware as regards likelihood of commission of
another offence or not would depend upon the facts and circumstances of each case.
It is also well settled that if death had been caused in prosecution of the common object of an
unlawful assembly, it would not be necessary to record a definite or specific finding as to which
particular accused out of the members of the unlawful assembly caused the fatal injury.”

Vicarious Liability in statutory offences:
At the time of the framing certain statutes, the Legislature imposes the strict liability upon the
employer. For example, the Prevention of Food Adulteration Act, Sale of Liquor, Drugs, etc., impose
such liability upon the principal.
It is the liability of the merchant to supply the unadulterated food. If the Food Inspector conducts
sudden checking and finds the food articles are adulterated, the owner of the shop cannot escape from
the charges by simply saying that his servant might have adulterated the food.
If he wants to show that the food is adulterated without his knowledge by his employee, the burden of
proof lies upon him.
Hari Prasad Rao vs. the State (AIR 1951 SC 204)
Brief Facts:
The appellant was the licensee of two petrol bunks at Guntur. He employed two persons Ch.
Venkatrayudu and Dadda Pichayya to look after them. The appellant was the resident of Chirala, and
was also working as a Presidency First Class Magistrate at Chirala.
The then British Government enacted “The Motor Spirit Rationing Order, 1941”. According to it, the
motor vehicle owners should obtain valid coupons for petrol from the authorities.
The Dealer of the Petrol Bunk should supply the petrol on receipt of such coupons issued by the
authorised Government officials, and maintain the accounts for such coupons in a register, and
endorse on the back of the coupons, and then supply the petrol.
Two cases were prosecuted against Hariprasad Rao and his employees by the State, alleging two
charges in the first case that they supplied the petrol without coupons and in the second case, the third
charge was that they received the coupons, but did not supply the petrol to the concerned. The charges
and cases were framed under the Motor Spirit Rationing Order, 41.
The Sub-Divisional Magistrate, Guntur found the appellant and his employees in each case guilty of
the charges and convicted the appellant to a fine of Rs. 30/- on the first count and Rs. 20/- on the
second count and a fine of Rs. 20/- on each of the three counts, and if the appellant failed to pay the
penalty and fine, one week imprisonment.
The appellant appealed to High Court, Madras. He argued that he was working as a Magistrate and
entrusted the business to his employees and he was not present at the time of the offences, and sought
the defence of mens rea and exemption from vicarious liability. He pleaded that in criminal cases, the
accused should not be punished unless his mens rea was proved.
He also pleaded that the criminal law did not recognise the vicarious liability. The Madras High Court
held that the questions of mens rea and exemption from vicarious liability were not relevant in the
present case as the charges were statutory offences.
It held the appellant were liable for the offences. It also held that the question of mens rea will affect
the measure of punishment but it cannot affect the conviction.
The appellant appealed to the Supreme Court. The State argued that though ordinarily a person should
not be held liable for the criminal acts of another and no person can be charged with the commission

of an offence unless a particular intent or knowledge is found to be present, mens rea is not of the
essence of the offence with which statutory provisions impose restrictions and conditions.
Judgment:
The Supreme Court held that unless a statute either clearly or by necessary implication rules out mens
rea as a constituent part of a crime, the defendant should not be held guilty of an offence under the
criminal law, unless he has a guilty mind.
Relying upon this rule, the Supreme Court held that where a servant sold petrol to a bogus customer in
the absence of coupons in contravention of the Rationing Order and the master was not present at the
time nor had he any knowledge of the supply of petrol by the servants to the bogus customer, the
master cannot be held to be vicariously liable for the act of the servant.
Hence the conviction and the sentence imposed on the appellant on the 1st charge in both the cases
were quashed. The Supreme Court upheld conviction and sentence on the third charge of the second
case.
Principle:
The Supreme Court observed: “Prima facie, the master is not to be made criminally responsible for
the acts of his servant to which the master is not a party.
But it may be the intention of the Legislature, in order to guard against the happening of the forbidden
thing, to impose a liability upon a principal even though he does not know of it, and is not a party to
the forbidden act done by his servant.
Many statutes are passed with this object. Acts had done by the servant of the licensed holder of
licensed premises render the licensed holder in some instances liable, even though the act was done by
his servant without the knowledge of the master.
Under the Food and Drugs Acts, there are again instances well known in the circumstances, where the
masteries made responsible, even though he knows nothing of the act done by his servant, he may be
fined or rendered amenable to the penalty enjoined by the law. In those cases the Legislature
absolutely forbids the acts and makes the principal liable without a mens rea.”
Exemption under vicarious Liability in criminal law:
As a general rule of criminal law, the master is not held liable for the criminal acts done by his agent
or servant. However, he will be held responsible, if he is the abettor or conspirator or active partner of
the offence.
He may be treated as having joint liability and common intention (Sec. 34) or as having constructive
liability and common object (Sec. 149).
Examples:
a) A – a master instructs B-a servant to murder C. B murders. Here vicarious liability does not apply.
Joint Liability should apply to both A& B, and both of them must be punished accordingly. B cannot
plead exemption under vicarious liability.

b) A – a master instructs B-a driver to drive his vehicle. B drives with rash and negligent manner, and
causes accident and death to C. Under the Law of Torts, A and B both of them are liable to pay the
damages caused to the family of the deceased, and more particularly A is held more liable, being
respondent superior.
Under the Criminal Law, A is not held responsible, but B is held liable, as he drove the car
negligently. B shall have to face the prosecution for the “Rash & Negligence” under Section 304-A of
I.P.C., for which A shall not be liable. Here the act committed by B comes under S. 304-A of Indian
Penal Code, which excludes the principal from the vicarious liability.
Exceptions:
“Vicarious liability is unknown to Criminal law,” But this legal principle has the following
exceptions:
1. Statutory Liability:
Sometimes, the statute provides strict rules to the principal, who must obey the rules very carefully.
Examples:
(a) Erecting pandals on the roads in twin cities is prohibited, and violation of such rules attracts penal
provisions, by Hyderabad City Police Act. A-a house owner instructs B-servant to erect the Pandal on
the road. Here A is liable for the contravention of the provisions of the Hyderabad City Police Act.
(b) Heaping Kankar, bricks, sand, etc., on public roads is an offence punishable with one month
imprisonment or with fine upto Rs. 1,000/- or with both as per Hyderabad Municipal Corporation C
finance, 1999. If a servant makes a heap of sand on a public road, the principal/house- owner is liable
(c) The Environmental (Protection) Act, 1986, the Water (Prevention & Control of Pollution) Act,
1974, the Air Prevention & Control of Pollution) Act, 1981, etc., impose the strict liability upon the
occupiers/prospect is not to pollute the atmosphere.
If an occupier instructs his employees to discharge unearned effluents into the surrounding canal, land
and atmosphere, the polluter/ occupier is hearable.
3. Neglect of Duty:
The Factories Act, 1948 and its rules provide that the Owner of the Factory must entrust the duties on
dangerous machines to a well-qualified and experienced candidate, and also he should take all
reasonable precautionary steps to prevent accidents and dangers.
If A-an owner of a factory, entrusts the management of a dangerous machine to an unqualified or
unauthorized person, and if such unauthorized person commits any accident causing death to person
or persons A is held liable. A, being the owner, is guilty of entrusting the handling of the machine to
an ignorant, unauthorized person. It is neglect of duty.
MENS REA AND NEGLIGENCE
MENS REA

It may be reiterated that a man is held criminal liable not for his act alone but ifit is also
accompanied with “mens rea”or guilty mind with which he does it.
Thus, “mens rea’’ refers to the mental element necessary for the particular crime and the
mental element may either be intention to do the act or recklessness “or negligence ” as to
consequences of that act. Generally, the knowledge of the consequences is considered as part
of mens rea because mental condition of a man can be judge by his conduct and it is rather
difficult to peep whether he did the act intentionally or recklessly with the knowledge ofthe
consequence.
Guilty mind "mens rea” may assume two forms, i.e. 1) Wrongful intention; or 2) Culpable
negligence
A person shall be punished if he intentionally and willfully does an act which is prohibited by
the criminal law of the land. He shall also be criminally liable if he does a forbidden act
negligently or carelessly without bothering about the consequences following there from.
There are, however, some exceptional cases when a person is held liable irrespective of his
wrongful intention or culpable negligence. Such cases are covered under what is known as
the “strict liability’’ cases. Thus, wrongs incurring penal liability are ofthree kinds considered
from the point of view ofmens rea.
• International or willful wrongs;
• Wrongs of negligence;
• Wrongs ofstrict liability which are independent ofmens rea
The doctrine of mens rea has been well explained in the famous English case of
R.V.TOLSON. In this case a woman whose husband had deserted her married another man
before the expiry of seven years which was against English law relation to marriages. The
jury, however, found the woman "not guilty” of bigamy as the bonafide believed that her
husband had died. The court acquitted her ofthe charge of bigamy as mens rea was not
proved in this case.
Thus, a mere act does not constitute an offence unless it is coupled with mens rea.
In other words, mens rea is an essential ingredient for a crime. Sir J.STEPHENS, however,
thinks that the doctrine mens rea is misleading. In his view, the doctrine originated when
offences were not defined unless the criminal law. Some persons found that the crime
consisted not merely in doing a particular act such as killing, stealing, etc. but doing it with a
particular knowledge or purpose. The mental condition came to be called as mens rea. But
now at the present stage when every offence is well defined, the doctrine ofmens rea has
become unnecessary if not obsolete.
EXCEPTIONS TO THE DOCTRINE OF MENS REA
Besides the fact that the importance of doctrine ofmens rea has receded in modern times,
there are certain special circumstances which the law imposes strict liability. They are
exceptions to the doctrine ofmens rea. These exceptions are:

a) Where the law imposes strict liability the requirement of mens rea is dispensed with. For
instance, the statues relating to matters concerning public health, food, drugs, public safety
and social welfare measures impose strict liability and the presence or absence of mens red
is irrelevant in such cases. Likewise, the motor vehicle act, licensing legislations, etc. are
covered under absolute liability rule and presence of guilty mind is not a relevant factor to
decide the guilty ofthe accused in these cases. The Privy council, however, observed that tire
offences in which liability could be imposed without guilty mind must be comparatively far
and few.
b) In cases where it is difficult to prove mens rea and the penalties are petty fines, the
expediency demands that dispensation ofthe requirement of mens rea would facilitate
speedy disposal of trials. The accused can be fined even without the proof ofmens rea.
c) It is not necessary to take mens rea into consideration in deciding cases relating to public
nuisance. It is so in the interests of public safety.
d) Mens rea is unnecessary in those cases which are criminal in form but in fact they are only
summary mode of enforcing a civil right.
e) Mens rea is not relevant in cases in which the plea ofignorance oflaw is raised in v defence.
In such cases the fact that the offender was not aware ofthe rule of law and that he did not
intend to violate it, is no defence and he shall be liable as if he knew the law.
NEGLIGENCE
Jurists have defined “negligence” in different ways. SALMOND observed that negligence is
capable carelessness. To quote him: "negligence is the state of mind of undue indifference
towards one's conduct and its consequences". It is carelessness in the matter in which
carefulness is obligatory under the law. Carelessness excludes wrongful intention.
POLOCK observes that negligence is the opposite of the diligence and since no one refers to
the diligence as a state ofmind, he considers that negligence is also not a state of mind. But it
is submitted that the opposite of diligence is idleness while negligence is more appropriately
the opposite of intention and since intention is admittedly a state of mind, negligence is also
as such.
Negligence - Intentional act is one that was foreseen and desired by the doer. Forbearance is
an intentional negative act. An unintentional negative act is referred to as an omission. An
omission is the non-doing a given act without adverting to the act not done.
AUSTIN said, “an omission is not the consequence ofan act of the will but ofthat state ofthe
mind which is styled negligence and implies the absence ofwill and intention.
According to HOLLAND, negligence includes all those shades of inadvertence which result
in injury to others but there is total absence of consciousness on the part of the doer.
WILLES J. holds that "negligence is the absence ofsuch case as it was the duty ofthe
defendant to use ”.
According to SALMOND negligence is “the state ofmind ofundue indifference towards one’s
conduct and its consequences”.

Negligence can consist either "in faciendo" or “in non faciendo", being either
nonperformance or inadequate performance of a legal duty.
According to CLARKE, “Negligence is the omission to take such care as under the
circumstances it is the legal duty ofa person to take. It is in no sense a positive idea and has
nothing to do with a state ofmind”
The term “negligence” has been defined by BARON ALDESON as the “omission” to do
something which a responsible man, guided upon those considerations which ordinary
regulate the conduct of a human affairs, would do, or doing something which a prudent and
reasonable man would not do1. Thus, negligence may exist in non-feasance or misfeasance.
According to WINFIELD, “negligence defined as the breach of a legal duty to take care
which results in damage2 is in contrast to that wrongful intent".
According to another writer, “negligence is the absence of care according to circumstances”.
It has been held in a case that “negligence is the case omitting to do something that a
reasonable man would do or the doing something which a reasonable man would not do.
Negligence essentially consists in the mental attitude of undue indifference with respect to
one’s conduct and its consequences.
Negligence is nothing short of extreme carelessness. Carelessness excludes wrongful
intention. A thing which is intended cannot be attributed as carelessness. Carelessness or
negligence does not necessarily consist in thoughtlessness or inadvertence. It is true that it is
the commonest form of negligence but it is not the only form. There can be a form
ofnegligence in which there is no thoughtlessness or inadvertence.
The essential of negligence is not inadvertence but indifference. A careless person is a person
who does not care. To quote SALMOND, “this term has two usesfor,
i) itsignifies sometimes a particular state ofmind, and ii) at other times conduct resulting
therefrom.
The former is the subjective and latter objective sense. In the former sense, negligence is
opposed to wrongful intention, in the latter, it is opposed not to wrongful intention but to
intentional wrong-doing.
Negligence as a tort is the breach of a legal duty to make care which results in damage,
undesired by the defendant, to the plaintiff. Thus, its ingredients are:
a) A the legal duty on the part of A towards B to exercise in such as conduct of A falls within
the scope ofthe duty.
b) Breach ofthat duty
c) Consequential damages to B.

The duty must be one recognized by the law, a merely moral or religious duty will not
suffice. Duty means a restriction of the defendant’s freedom of conduct, and the particular
restriction here is that of behaving as a reasonable careful man would behave in the like
circumstances.
Negligence and wrongful intent are two contrasted and mutually inconsistent mental attitudes
of a person towards his act and its consequences. A person who causes a consequence
intentionally cannot be said to have caused it negligently also, and vice versa. Though at
times, it may be difficult to make a distinction between them, they are two separate and
distinct attitudes ofmind.
Negligence is oftwo kinds: a) Advertent negligence, and b) Inadvertent negligence.
Advertent negligence
It is called willful negligence or recklessness also. In this negligence the harm done is
foreseen as possible or probable, but it is not willed. For example, a person who drives
furiously in a crowded street and causes injury or harm to persons commits it by adverent
negligence. For legal purposes such negligence is classed with intention.
InadvertentNegligence or SimpleNegligence
The negligence which is a result of ignorance, thoughlessness or forgetfulness is inadvertent
negligence. In such negligence the harm caused is neither foreseen nor willful. For example,
a doctor who treats a patient in property though negligence, as forgetfulness is guilty
ofinadvertent negligence.
NO DUTY NO NEGLIGENCE, CRIMINAL AND CIVIL LAW
As the "negligence "is the omission to take such as under the circumstances it is the legal
duty of a person to take1. Where there is no such duty there can be no negligence. In different
legal systems different duties have been imposed upon individuals.
In the criminal law negligence is a condition of liability only in exceptional cases. Generally,
crimes are willful or intentional wrongs, therefore, the question of negligence rarely arises.
However, there are cases where negligence is a condition of criminal liability.
For example negligent homicide is a criminal offence. In civil wrongs now distinction is
drawn between the forms of "means rea” that is, the intention and negligence, and with very
few exceptions when an act would be a civil wrong if done intentionally, it a person is civilly
responsible for doing harm willfully, but is not bound to take any care not to do it.
"he must not for example, deceive afiother by any willful or reckless falsehood, but unless
there is some special ground of obligation in the case he is not answerable for false
statements which he honestly believes to be true, however negligent he may be in making
them”.

THEORIES OF NEGLIGENCE
There are two theories of negligence. One theory was propounded by SALMOND. One
theory was propounded by SALMOND. According to this theory, negligence is a state of
mind - mental attitude. This theory is called the subjective theory of negligence.
The other theory has been given by Sir FREDERICK POLLOCK. According to him
negligence is a type of conduct. This is called the objective theory of negligence. These
theories shall be discussed separately.
Subjective Theory of negligence
The exponents of the subjective theory maintain that negligence is a state of mind. According
to them, negligence consists in the mental attitude of undue indifference with respect to one’s
conduct and its consequence.
The subjective theory is given by SALMOND. His view is that negligence is culpable
carelessness. Although negligence is not the same as thoughtlessness or inadvertence, it is
nevertheless essentially an attitude of indifference. Therefore, according to this view,
negligence essentially “consists in the mental attitude of undue indifference with respect to
one’s conduct and its consequences ”.
A person is made liable on the ground of negligence because he does not sufficiently desire to
avoid a particular consequence- a harm. He is careless about the consequence and does the
act notwithstanding the risk that may ensure.
WINFIELD is also the supporter of this theory. He says that “as a mental element is tortuous
liability, negligence usually signifies total or partial inadvertence ofthe defendant to his
conduct andfor its consequence”.
According to AUSTIN, “want of advertence which one’s duty would naturally suggest, is
thefundamental idea in the conception ofnegligence In this opinion, a negligent wrongdoer is
one who does not know that his act is wrongful but would have known it had it not been
because of his indolence and inadvertence. Thoughtless is thus the essence of negligence for
AUSTIN.
AUSTIN goes a step further elaborating his subjective theory and distinguishes negligence
from heedlessness, rashness and recklessness. For him, negligence is the state of mind of the
person who inadvertently omits an act and breaks a positive duty. In heedlessness he does not
think of probable mischief and does not bother to avert the possible consequences3.
In rashness, he does foresee the consequences but foolishly thinks that they “would
notfollow” as a result ofhis act.
Objective Theory ofNegligence

According to this theory negligence is not a condition of mind but a particular kind of
conduct which is to be judged objectively. This theory is supported by FREDREIC
POLLOCK. It is the breach of duty to take care which a reasonable person under those
circumstances would take. The tort of negligence is based on objective approach to the
conduct and its consequences.
According to Sir FREDERICK POLLOCK, “negligence is the contrary of diligence and no
one describes it as the state ofmind"1. This theory postulates that negligence is an objective
fact. It is not an attitude of mind or a form of “mens rea ’’ at all, but to particular standard of
conduct. It is a breach of duty of not taking care and to take care means to take precautions
against the harmful results of one’s action and refrain from unreasonably dangerous kinds of
act.
For example, to drive at night without lights is negligence because having lights is the
conduct of precaution adopted by all prudent men. He who drives without lights in the night
has failed in that conduct. So, to determine whether a man is negligent or not, one need not to
go into the state of min but to the standard of his conduct Negligence thus is a type of
conduct and not a state ofmind. The view appears to be correct chiefly in the law of tort
where negligence is nothing more than a failure to achieve the objective standard of a prudent
man, and where a person has failed to achieve that standard of a prudent man, any defence on
the ground ofmental state that he took the utmost care shall be of no use at all to him. Similar
is the position in criminal law as well.
Dr.WINFIELD defined negligence as a tort is "the breach ofa legal duty to take care which
results in damage, undesired by the defendant to the plaintiff’. Thus, the three essential
ingredients of negligence as a tort are
i) Existence of a legal duty ii) Breach ofit and iii) Consequential damages All these are to be
judged objectively on the basis as to how a reasonable man would have acted in those
circumstances1.
SALMOND criticizes objective theory of negligence on the ground that it loses sight of the
essential distinction between intention and negligence. For him, negligence is purely mental
and nothing more than carelessness.
KINDS OF NEGLIGENCE
Negligence is oftwo kinds. 1) Advertent negligence 2) Inadvertent negligence
“Advertent negligence” is generally called as willful negligence. In this kind of negligence,
the harm done is foreseen as probable but it is not intended or willed.
In “inadvertent negligence” the harm is neither foreseen nor willed.
However, in both these cases, carelessness or indifference as to consequences is present.
The distinction between advertent and inadvertent negligence can be understood by an
illustration.

An operating surgeon may be folly aware ofthe serious risk involved in carrying out the
surgical operation ofthe patient but if he still performs the operation as a result of which the
condition of his patient deteriorates, it would be a case of advertent negligence. If the
surgeon wrongly operates the patient due to ignorance or a mistake, his negligence would be
inadvertent.

Law and justice
Introduction -
State maintain law and order and establish peace and social security. Administration of
Justice is one of the primary functions of the State. The main function of the administration
of justice is the protection of individuals' rights, enforcement of laws and punishment of
wrongdoer. In determining a nation's rank in a political organization, no test is considered
more decisive than its administration of justice, for it has been conceived as one of the
firmest peelers of any government.
2) What is Administration of Justice
In simple words administration of Justice means justice according to law. Justice generally
means the quality of being just. for example the awarding of what is due. justice consists of
impartiality, integrity or rightness etc Administration of justice is generally divided into two
parts- viz Administration of Civil Justice and Administration of Criminal Justice.
A State may not be called a State if it has failed to discharge its functions concerning the
administration of justice. Life may not be lived in a society in which there is no preservation
of the rights of man and no prevention of injustice.
3) Origin and Growth of Administration of Justice -
The origin and growth of administration of Justice is identical with the origin and
growth of man. In modern civilized societies, it has evolved through stages.
First Stage -
In early stage when society was primitive and private vengeance and self-help were the
only remedies available to the wronged person against the wrongdoer. He could get his
wrong addressed with the help of his friends or relatives.
Second Stage -
The second stage of development of the society was characterized by the state coming
into existence in its rudimentary form when its functions where only persuasive in nature. It
did not have enforcing power by which it could punish the wrongdoer.
Third Stage -
In the third Stage of development of society, wrongs could be redressed by payment of
compensation by the wrongdoer to the wronged(victim) who was affected by the wrongful
act.
Thus up to this time, the justice remained private in nature without the compulsive force of
the State.

4) Advantages of Administration of Justice -
Advantages of Administration of Justice are as follows -
Uniformity and certainty - Legal Justice ensures uniformity and certainty. Everybody
knows what the law is and there is no scope for arbitrary action. Even Judges have to give
decisions according to the declared law of the Country. As the law is certain, citizens can
shape their conduct accordingly.
Impartiality - Another Advantage of Administration of Justice, there is impartiality in
the administration of justice. Judges are required to give their decisions according to the pre-
determined legal principles and the cannot go beyond them.
5) Disadvantages of Justice -
Despite the aforesaid advantages there are certain disadvantages of Legal Justice which
are as follows -
Rigidity - One Disadvantage of Legal Justice is that it is Rigid. Law has already been laid
down in precedents. It is not always possible to adjust it to the changing needs of society.
Society may change more rapidly than legal justice and may result in hardship and injustice
in certain cases. Judges act upon the principle that "hard cases should not make bad law".
Technicalities - Another disadvantage of legal justice is its technicalities (formalism).
Judges attach more importance to legal technicalities than they deserve. They give
importance to form than to substance.
Complexity - Modern society is becoming more and more complicated and if made from
time to time to codify or simplify the legal system but very soon law becomes complicated
Theories of punishments:
Introduction:
A Punishment is a consequence of an offense. Punishments are imposed on the wrong doers
with the object to deter them to repeat the same wrong doing and reform them into law-
abiding citizens. The kind of punishment to be imposed on the criminal depends or is
influenced by the kind of society one lives in. The aim of the different theories of
punishments is to transform the law-breakers into law-abiders.
The different theories of Punishment are as follows –
• Deterrent Theory
• Retributive Theory

• Preventive Theory
• Reformative Theory
• Expiatory Theory
A) DETERRENT THEORY-
The term “Deter” means to abstain from doing an act. The main purpose of this theory is to
deter (prevent) the criminals from doing the crime or repeating the same crime in future.
Under this theory, severe punishments are inflicted upon the offender so that he abstains from
committing a crime in future and it would also be a lesson to the other members of the
society, as to what can be the consequences of committing a crime. This theory has proved
effective, even though it has certain defects.
B) RETRIBUTIVE THEORY-
This theory of punishment is based on the principle- “An eye for an eye, a tooth for a tooth”.
Retribute means to give in turn. The object of this theory is to make the criminal realize the
suffering of the pain by subjecting him to the same kind of pain as he had inflicted on the
victim. This theory aims at taking a revenge rather than social welfare and transformation.
This theory has not been supported by the Criminologists, Penologists and Sociologists as
they feel that this theory is brutal and babric.
C) PREVENTIVE THEORY –
This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea
is to keep the offender away from the society. This criminal under this theory is punished
with death, life imprisonment etc. This theory has been criticized by some jurists.
D) REFORMATIVE THEORY –
This theory is the most humane of all the theories which aims to reform the legal offenders by
individual treatment. The idea behind this theory is that no one is a born Criminal and
criminals are also humans. Under this theory, it is believed that if the criminals are trained
and educated, they can be transformed into law abiding citizens. This theory has been proved
to be successful and accepted by many jurists.
E) EXPIATORY THEORY –
Under this theory, it is believed that if the offender expiates or repents and realizes his
mistake, he must be forgiven.

Concept of state and sovereignty:
INTRODUCTION:
A State and the doctrine of sovereignty are inseparable parts of the same machine. Therefore,
it is impossible to discuss one, without understanding what the other entails. In the simplest
terms, the doctrine of sovereignty refers to the quality of enjoying a superseding authority
over a geographical area or a populace. However, before going further into understanding
what sovereignty is, it is important to first understand what a State is.
The origin of the State itself is shrouded in mystery. It is difficult to suggest whether the State
has a singular origin or it has evolved as a continuous process. However, what can be
suggested is the fact that the State evolved from a simple to a more complex form as a result
of the rising extension of man’s activities and interactions.
The expression “State” itself is derived from the Latin term “status”, which means ‘standing.’
It is however to give a precise, exact definition of the State partly because its definitions, as
given by political thinkers and jurists have been constantly changing owing to the dynamic
evolution of the concept of a State.
Woodrow Wilson, one of the presidents of the United States, defined State as a people
organized for law within a definite territory. However, on the other hand, Grotius defines
State as the complete union of freemen who join themselves together for the purpose of
enjoying law and for the sake of public welfare.[i]
Oppenheim stated that a State is in
existence when a people are settled in a country under its own sovereign government.
The evolution of State itself has been hotly debated and questioned. In a nutshell, the
following are the theories of evolution of State,
• Divine theory: According to this theory, the State is the creation of God and is
therefore, through the arm of the king, a representative of God on earth. It is a
superseding authority over all beings on earth.
• Natural theory: This theory suggests that man is a social being and the instinct of
sociability has given rise to the origin of the State. Aristotle, a staunch proponent
suggested that the interests of the individual and the State were identical and men
could not live outside the State. The purpose therefore, was to promote general
welfare of the people.
• Social Contract Theory: Pre-supposes that the State is a creation of agreement by
the people. The people pay obedience to the State because they have, by a mutual
agreement agreed to do so.
STATE:

the State is essentially a politically organized society coordinating the activities of its
members and protecting their interests by the maintenance of people and administration of
justice. The following can be said to be the essential elements of the State,
• Population, which implies a considerable group of human beings living together in a
community.
• Territory, which is a defined portion of the earth’s surface upon which a population
permanently resides. As pointed out by Harold Laski, “the territories of a State are the
regions over which it can exercise its sovereignty.”
• Government, which is any organization which holds the authority and power, to be
exercised over its people by way of laws and other legislations. The government
essentially, is the agent of the State.
• Sovereignty, which shall be glossed over and discussed in this particular project.
• And the another meaning of state signifies by the article 12 of Indian constitution.
Meaning of Sovereignty
The word “sovereignty” is derived from the Latin word “superannus” meaning supreme. It
means the supreme power of the state over all individuals and associations within its own
territorial limits. This is internal sovereignty of the state whereby the state is the final
authority to make laws, issue commands and take political decisions which are binding upon
all individuals and associations within its jurisdiction. It has the power to command
obedience to its laws and commands and to punish the offenders who violate the same.
At the same time, sovereignty also involves the idea of freedom from foreign control, i.e., the
independence of the state from the control or interference of any other state in the conduct of
its international relations. This is what is called external sovereignty whereby a state has the
power to independently determine its own foreign policy and has the right to declare war and
make peace. At the same time, external sovereignty implies that each state, big or small, by
virtue of its sovereign status is equal to every other state. It can command no other state and it
cannot itself be commanded by any other state.
Accordingly, sovereignty of the state has two aspects, namely, internal and external
sovereignty.
Sovereignty is an essential element of the state and with every change in the conception of
the state, the concept of sovereignty has also varied from age to age. The Greek philosopher
Aristotle spoke of the “supreme power” of the state. The Roman jurists were also familiar
with the notion. During the Middle Ages, the idea of sovereignty was associated either with
the authority of the king or with the Pope.
Characteristics of Sovereignty
There are many characteristics or attributes of sovereignty. These are discussed below:
• Absoluteness: Sovereignty is regarded as absolute. This means that neither within the
state nor outside it , is there any power which is superior to the sovereign. The will of

the sovereign reigns supreme in the state. His obedience to customs of the state or
international law is based on his own free will.
• Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as an
independent state lasts. The death of a king or president or the overthrow of the
government does not mean the destruction of sovereignty as the ruler exercises
sovereign power on behalf of the state and therefore, sovereignty lasts as long as the
state lasts.
• Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality in
the sense that it extends to all individuals, groups, areas and things within the state.
No person or body of persons can claim exemption from it as matter of right. The
immunity granted to diplomats from other countries is only a matter of international
courtesy and not of compulsion.
• Inalienability: Sovereignty is inalienable. It means that the state cannot part with its
sovereignty. The state as a sovereign institution ceases to exist, if it transfers its
sovereignty to any other state.
• Indivisibility: As sovereignty is an absolute power, it cannot be divided between
different sets of individuals or groups. In every state, sovereignty must be vested in a
single legally competent body, to issue the final commands. Division of sovereignty is
bound to give rise to conflicting and ambiguous commands.
• Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost if
it has not been exercised for a long period. A people may not have exercised
sovereignty for some time due to control by a foreign power. But non-exercise of
sovereign power does not put an end to sovereignty itself. It can only shift to a new
bearer.[ii]
• Originality: The most important characteristic of sovereignty is its original character.
Sovereignty cannot be manufactured. Dependence on another for supreme power
cannot make a state a sovereign one.
Different kinds of sovereignty exist in the world. These are discussed below:
Titular and Real Sovereignty
A titular sovereign is one who is sovereign only in name and not in reality. Although
outwardly, the power is vested in one person, the real power is enjoyed by another. Such a
situation prevails in parliamentary democracies. The King or Queen in England is the Titular
head and he/she does not enjoy any real power. Actual powers are enjoyed by ‘King/Queen-
in-Parliament’ which constitutes the real sovereign. In case of India, the President of India is
the titular sovereign and the real power lies in the hands of the Council of Ministers headed
by the Prime Minister which constitutes the real sovereign.
De facto and de jure Sovereign
Sometimes, the existing regime in a state is overthrown through unconstitutional means, as in
the case of a military takeover. In such a situation, until the new sovereign is legally
established and recognized, there may exist two sovereigns-one in the legal sense, who has
lost his real powers; the other in the practical sense who has not yet been legally established.
The de-facto sovereign may not have any legal claim to obedience, but he is a practical
sovereign whose authority is based on physical force or moral persuasion and the people are
compelled to obey him. Under such circumstances, the legal or formal sovereign retains de-
jure sovereignty while the actual sovereign is said to be the de-facto sovereign. In the present-
day world there have been several instances where military generals have overthrown

constitutionally elected governments, thereby usurping all powers of the state. Such a
takeover makes the military general the de-facto or actual sovereign possessing real powers,
while the dethroned regime, which still is the legal or formal sovereign, retains de-jure
sovereignty. In course of time, the de-facto sovereign, by securing the consent of the people
through elections or otherwise, may become a de-jure sovereign. The best example of de-
facto sovereignty, in modern times, is furnished by the case of Spain under General Franco
who captured the authority of the State by defeating the Republican Government of Spain.
Though he began to rule by force, gradually he was trying to be a de-jure sovereign by
winning the consent of the people. Historically too, there have been several examples of the
emergence of de facto sovereignty. Some of these are: the authority exercised by Cromwell in
England, by Napoleon in France and the Bolshevist group in Russia after 1917.[iii]
Legal and Political Sovereignty
The legal sovereign is the supreme law making body. In every independent state, there are
some laws which must be obeyed by the people and there must be a power to issue and
enforce these laws. The power which has the legal authority to issue and enforce these laws
and final commands is the legal sovereign. It may vest in one person or a body of persons. It
alone declares, in legal terms, the will of the state. Law is a command of the sovereign and he
who violates it is liable to be punished. The King/Queen-in-Parliament is the legal sovereign
in the UK.
Political sovereignty is vested in the electorate, public opinion and all other influences of the
state which mould or shape public opinion. The political sovereign is represented by the
electorate or the body of voters in the state. The electorate, that is, the political sovereign,
elects the legal sovereign in the form of the members of the parliament. Accordingly, the
political sovereign controls the legal sovereign. It lies behind the legal sovereign. According
to A.C.Dicey, “Behind the sovereign whom the lawyer recognizes there is another sovereign
to whom the legal sovereign must bow.”
Popular Sovereignty
The concept of popular sovereignty regards people as the source of all authority in the state.
All organs of the government, whether it is the executive, the legislature or the judiciary,
derive their power and authority from the will of the people taken as a whole. Accordingly,
the idea of popular sovereignty implies that the supreme power in the state rests with the
people. The Preamble to the Constitution of India contains the idea of popular sovereignty. It
begins with the phrase, “WE, THE PEOPLE OF INDIA …” and ends with the phrase,
“…HEREBY ADOPT, ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.”
In modern times, the development of sovereignty as a theory coincided roughly with the
growth of the state in terms of power, functions and prestige. In the nineteenth century, the
theory of sovereignty as a legal concept (i.e. sovereignty expressed in terms of law) was
perfected by John Austin, an English jurist. He is regarded as the greatest exponent of the
“Monistic theory of sovereignty.” It is called the Monistic Theory of Sovereignty because it
envisages a single sovereign in the state. The sovereign may be a person or a body of persons.
Furthermore, as sovereignty is considered to be a legal concept, the theory is called the
Legal-Monistic theory of Sovereignty. John Austin, in his famous book, Province of
Jurisprudence Determined (1832), stated his views on sovereignty in the following words: “If

a determinate human superior not in the habit of obedience to a like superior receives habitual
obedience from the bulk of a given society, that determinate superior is sovereign in that
society and that society (including the superior) is a society political and independent.”
On an analysis of the above definition, we could find the following implications:
Firstly, sovereignty must reside in a “determinate person” or in a “determinate body” which
acts as the ultimate source of power in the state.
Secondly, the power of the determinate superior is unlimited and absolute. He can exact
obedience from others but he never renders obedience to any other authority.
Thirdly, the obedience rendered by a people to an authority occasionally will not turn the
authority into sovereign power.
Fourthly, obedience rendered to sovereign authority must be voluntary and as such
undisturbed and uninterrupted. Austin also points out that it is not necessary that all the
inhabitants should render obedience to the superior. It is enough if the “bulk”, i.e., the
majority of a society renders habitual obedience to the determinate superior.
Fifthly, the sovereign is the supreme law maker. Laws are the commands of the sovereign
which are binding upon all within the territorial jurisdiction of the state. Breach or violation
of these commands leads to punishment from the sovereign.
Sixthly, sovereignty is one indivisible whole and as such incapable of division between two
or more parties. There can be only one sovereign authority in a state.

Law and morality:
Relation between law and morals:
Law:
1. Law regulates and controls the external human conduct. It is not concerned with inner
motives. A person may be having an evil intention in his or her mind but law does not care
for it.
Law will move into action only when this evil intention is translated into action and some
harm is actually done to another person.
2. Law is universal in a particular society. All the individuals are equally subjected to it. It
does not change from man to man.
3. Political laws are precise and definite as there is a regular organ in every state for the
formulation of laws.
4. Law is framed and enforced by a determinate political authority. It enjoys the sanction of
the state. Disobedience of law is generally followed by physical punishment.
The fear of punishment acts as a deterrent to the breach of political law.
5. Law falls within the purview of a subject known as Jurisprudence.
Morality:
1. Morality regulates and controls both the inner motives and the external actions. It is
concerned with the whole life of man.
The province of law is thus limited as compared with that of morality because law is simply
concerned with external actions and docs not take into its fold the inner motives.
Morality condemns a person if he or she has some evil intentions but laws are not applicable
unless these intentions are manifested externally.
2. Morality is variable. It changes from man to man and from age to age. Every man has his
own moral principles.
3. Moral laws lack precision and definiteness as there is no authority to make and enforce
them.
4. Morality is neither framed nor enforced by any political authority. It does not enjoy the
support of the state. Breach of moral principles is not accompanied by any physical
punishment.
The only check against the breach of morality is social condemnation or individual
conscience. 'Moral actions are a matter of choice of inner conscience of the individual, laws
are a matter of compulsion'.
5. Morality is studied under a separate branch of knowledge known as Ethics.
We may conclude the discussion in the words of Gilchrist, "The individual moral life
manifests itself in manifold ways. The state is the supreme condition of the individual moral
life, for without the state no moral life is possible.
The state, therefore, regulates other organizations in the common interest. The state, however,
has a direct function in relation to morality."
Points to Remember

Laws may be defined as external rules of human conduct backed by the sovereign political
authority. Law and morality are intimately related to each other.
Laws are generally based on the moral principles of a particular society. Some points of
distinction may be brought out as follows:
(a) Laws regulate external human conduct whereas morality mainly regulates internal
conduct.
(b) Laws are universal; morality is variable.
(c) Laws are definite and precise while morality is variable.
(d) Laws are upheld by the coercive power of the state; morality simply enjoys the support of
public opinion or individual conscience.
(e) Laws are studied under Jurisprudence but morality is studied under Ethics.
Legal enforcement of morality:
In modern Western political and legal thought, the subject of legal enforcement of morality is
narrower than the literal coverage of those terms. That is because much legal enforcement of
morality is uncontroversial and rarely discussed. Disagreement arises only when the law
enforces aspects of morality that do not involve protecting others from fairly direct harms.
More precisely, people raise questions about legal requirements (1) to perform acts that
benefit others, (2) to refrain from acts that cause indirect harms to others, (3) to refrain from
acts that cause harm to themselves, (4) to refrain from acts that offend others, and (5) to
refrain from acts that others believe are immoral. Answers to some of these questions may be
affected by whether the relevant moral judgments are essentially religious. Subsidiary
questions concern the appropriateness of taxes adopted to discourage behavior the
government should not forbid outright and the appropriateness of prohibitions on others
profiting from such behavior (as when someone lives off the earnings of prostitutes). Since it
is rare that one argument for restricting behavior will stand by itself, with no other arguments
supporting restriction, a conclusion about a single theoretical issue will not usually yield a
decisive answer as to whether any particular behavior should remain free. However, a
conclusion that some argument for restraint is unwarranted can significantly affect the overall
power of the totality of arguments. For example, if someone concludes that the claimed
immorality of homosexual behavior is not a proper basis on which to forbid it, this will
substantially affect the overall strength of reasons in favor of prohibition. A final subtlety
concerns two perspectives from which to consider the subject of the legal enforcement of
morality. One perspective is that of legislative philosophy: "Should the legislature enforce
morality by law?" The second perspective is that of a court in a constitutional regime:
"Should enforcement of morality count as a legitimate basis for legislation that is challenged
as invalid?" One might think that legislatures should not rely upon certain reasons, but that
courts should accept them as adequate if legislatures do rely upon them. In addition, a reason
might be acceptable for most legislation, but not, say, for legislation that infringes on liberty
of expression. Finally, a reason might be acceptable as a matter of general philosophy of
government, but not in a constitutional regime that mandates the separation of church and
state. This Article explains these major questions in turn, but first addresses the self-evident
point that legal enforcement of morality is usually appropriate.

Sources of law:
Analytical Positivist School of Thought- Austin said that the term ‘source of law’has three
different meanings:
1. This term refers to immediate or direct author of the law which means the sovereign in the
country.
2. This term refers to the historical document from which the body of law can be known.
3. This term refers to the causes that have brought into existence the rules that later on
acquire the force of law. E.g. customs, judicial decision, equity etc.
Historical Jurists- Von Savigny, Henrye Maine, Puchta etc. – This group of scholars
believed that law is not made but is formed. According to them, the foundation of law lies
in the common consciousness of the people that manifests itself in the practices, usages and
customs followed by the people. Therefore, for them, customs and usages are the sources of
law.
Sociological Jurists- This group of scholars protest against the orthodox conception of law
according to which, law emanates from a single authority in the state. They believe that
law is taken from many sources and not just one.
Ehlrich said that at any given point of time, the centre of gravity of legal development lies not
in legislation, not in science nor in judicial decisions but in the society itself.
Duguit believed that law is not derived from any single source as the basis of law is public
service. There need not be any specific authority in a society that has the sole authority to
make laws.
Salmond on Sources of Law- Salmond has done his own classification of sources of law:
1. Formal Sources- A Formal Source is as that from which rule of law derives its force
and validity. The formal source of law is the will of the state as manifested in statutes or
decisions of the court and the authority of law proceeds from that.
2. Material Sources- Material Sources are those from which is derived the matter though not
the validity of law and the matter of law may be drawn from all kind of material sources.
a. Historical Sources- Historical Sources are rules that are subsequently turned into legal
principles. Such source are first found in an Unauthoritative form. Usually, such principles
are not allowed by the courts as a matter of right. They operate indirectly and in a mediatory
manner. Some of the historical sources of law are:
i. Unauthoritative Writings
ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules
are created for e.g. legislation and custom. They are authoritative in nature and are followed
by the courts. They are the gates through which new principles find admittance into the
realm of law. Some of the Legal Sources are:
a. Legislations

b. Precedent
c. Customary Law
d. Conventional Law- Treatises etc.
Precedent as a Source of Law
In India, the judgment rendered by Supreme Court is binding on all the subordinate courts,
High Courts and the tribunals within the territory of the country.
In case of a judgment rendered by the High Court, it is binding in nature to the subordinate
courts and the tribunals within its jurisdiction.
In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time
Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching
authority, then the weight should be given on the basis of rational and logical reasoning and
we should not bind ourselves to the mere fortuitous circumstances of time and death”.
Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is
an inconsistency in decision between the benches of the same court, the decision of the larger
bench should be followed.
What is the meaning of Precedent as a source of law?
Till the 19th
Century, Reported Court Precedents were probably followed by the courts.
However, after 19th
century, courts started to believe that precedence not only has great
authority but must be followed in certain circumstances. William Searle Holdsworth
supported the pre-19th
century meaning of the precedence. However, Goodheart supported the
post-19th
century meaning.
Declaratory Theory of Precedence- This theory holds that judges do not create or change
the law, but they ‘declare’ what the law has always been. This theory believes that the
Principles of Equity have their origin in either customs or legislation. However, critics of this
theory say that most of the Principles of Equity have been made by the judges and hence,
declaratory theory fails to take this factor into regard.
Types of Precedents
1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or
not. They are classified as Legal Sources.
2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to
them. They are classified as Historical Sources.
Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent.
There are circumstances that destroy the binding force of the precedent:
1. Abrogated Decision- A decision when abrogated by a statutory law.
2. Affirmation or reversal by a different ground- The judgment rendered by a lower court
loses its relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.
4. Inconsistency with earlier decisions of High Court
5. Precedent that is sub-silentio or not fully argued.
6. Decision of equally divided courts- Where there is neither a majority nor a minority
judgment.
7. Erroneous Decision
Custom as a Source of Law
Salmond said that ‘Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility’.
Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by
the courts and applied as a source of law because they are generally followed by the political
society as a whole or by some part of it”.
However, Austin said that Custom is not a source of law.
Roscoe Pound said that Customary Law comprises of:
1. Law formulated through Custom of popular action.
2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of legal principles.
Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law
which got its content from habits of popular action recognized by courts, or from habits
of judicial decision, or from traditional modes of juristic thinking, was merely an
expression of the jural ideas of the people, of a people’s conviction of right – of its ideas of
right and of rightful social control.
However, it is the Greek historical School that is considered as the innovator of custom as
source of law.
Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human
association becomes a real and living entity animated by its own individual soul”.
Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”
Ingredients of Custom
1. Antiquity
2. Continuous in nature.
3. Peaceful Enjoyment
4. Obligatory Force
5. Certainty
6. Consistency

7. Reasonableness
SOURCES OF LAW- LEGISLATION
A Legal Right means a fact that is legally constitutive of a right. A Right is the de facto
antecedent of a legal right in the same way as a source of law is de facto antecedent of a legal
principle.
Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how
various jurists have defined legislation.
1. Salmond- Legislation is that source of law which consists in the declaration of legal rules
by a competent authority.
2. Horace Gray- Legislation means the forma utterance of the legislative organs of the
society.
3. John Austin- There can be no law without a legislative act.
Analytical Positivist School of Thought- This school believes that typical law is a statute and
legislation is the normal source of law making. The majority of exponents of this school do
not approve that the courts also can formulate law. They do not admit the claim of customs
and traditions as a source of law. Thus, they regard only legislation as the source of law.
Historical School of Thought- This group of gentlemen believe that Legislation is the least
creative of the sources of law. Legislative purpose of any legislation is to give better form
and effectuate the customs and traditions that are spontaneously developed by the people.
Thus, they do not regard legislation as source of law.
Types of Legislation
1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from
the sovereign power of the state. It cannot be repealed, annulled or controlled by any other
legislative authority.
2. Subordinate Legislation- It is that which proceeds from any authority other than the
sovereign power and is dependant for its continual existence and validity on some superior
authority.
Delegated Legislation- This is a type of subordinate legislation. It is well-known that the
main function of the executive is to enforce the law. In case of Delegated Legislation,
executive frames the provisions of law. This is also known as executive legislation. The
executive makes laws in the form of orders, by laws etc.
Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the
power to make subordinate legislation is usually derived from existing enabling acts. It is

fundamental that the delegate on whom such power is conferred has to act within the limits of
the enabling act.
The main purpose of such a legislation is to supplant and not to supplement the law. Its main
justification is that sometimes legislature does not foresee the difficulties that might come
after enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen
while formulation of the enabling act. Delegated Legislation gives flexibility to law and there
is ample scope for adjustment in the light of experiences gained during the working of
legislation.
Controls over Delegated Legislation
Direct Forms of Control
1. Parliamentary Control
2. Parliamentary Supervision
Indirect Forms of Control
1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable in special circumstances. By doing so, the
rules framed do not get repealed or abrogated but they surely become dead letter as they
become ultra vires and no responsible authority attempts to implement it.
2. Trustworthy Body of Persons- Some form of indirect control can be exercised by
entrusting power to a trustworthy body of persons.
3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It can
be complemented by antecedent publicity of the Delegated Laws.
It is advisable that in matters of technical nature, opinion of experts must be taken. It will
definitely minimize the dangers of enacting a vague legislation.
Salient Features of Legislation over Court Precedents
1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate
any legislative measure or provision that has become meaningless or ineffective in the
changed circumstances. Legislature can repeal a law with ease. However, this is not the
situation with courts because the process of litigation is a necessary as well as a time-
consuming process.
2. Division of function- Legislation is advantageous because of division of functions.
Legislature can make a law by gathering all the relevant material and linking it with the
legislative measures that are needed. In such a process, legislature takes help of the public
and opinion of the experts. Thus, public opinion also gets represented in the legislature. This
cannot be done by the judiciary since Judiciary does not have the resources and the expertise
to gather all the relevant material regarding enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is
because legislations are made applicable to only those that come into existence once the said
legislation has been enacted. Thus, once a legislation gets enacted, the public can shape its
conduct accordingly. However, Judgments are mostly retrospective. The legality of any
action can be pronounced by the court only when that action has taken place. Bentham once
said that “Do you know how they make it; just as man makes for his dog. When your dog
does something, you want to break him off, you wait till he does it and beat him and this is
how the judge makes law for men”.
4. Nature of assignment- The nature of job and assignment of a legislator is such that he/she
is in constant interaction with all sections of the society. Thereby, opportunities are available
to him correct the failed necessities of time. Also, the decisions taken by the legislators in the
Legislature are collective in nature. This is not so in the case of Judiciary. Sometimes,
judgments are based on bias and prejudices of the judge who is passing the judgment thereby
making it uncertain.
5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and
explanations whereas Judicial Pronouncements are usually circumscribed by the facts of a
particular case for which the judgment has been passed. Critics say that when a Judge gives
Judgment, he makes elephantiasis of law.
Difference between Legislation and Customary Law
1. Legislation has its source in theory whereas customary law grows out of practice.
2. The existence of Legislation is essentially de Jure whereas existence of customary law is
essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas customary law
is the oldest form of law.
4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal system.
5. Legislation expresses relationship between man and state whereas customary law expresses
relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary law is the outcome
of necessity, utility and imitation.
Advantage of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the politicians”. A
judge is impartial. Therefore, he performs his work in an unbiased manner.
2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory law
suffers from the defect of rigidity. Courts are bound by the letter of law and are not allowed
to ignore the law.”
Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an
instrument of reform is necessary but it cannot be denied that precedent has its own
importance as a constitutive element in the making of law although it cannot abrogate the
law.
3. Horace Gray said that “Case law is not only superior to statutory law but all law is judge
made law. In truth all the law is judge made law, the shape in which a statute is imposed on
the community as a guide for conduct is the statute as interpreted by the courts. The courts
put life into the dead words of the statute”.
4. Sir Edward Coke said that “the function of a court is to interpret the statute that is a
document having a form according to the intent of them that made it”.
5. Salmond said that “the expression will of the legislature represents short hand reference to
the meaning of the words used in the legislature objectively determined with the guidance
furnished by the accepted principles of interpretation”..

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