WRIT PETITION (WP)

What is Writ?

Writs are a written order from Supreme Court or High Court that commands constitutional remedies for Indian Citizens against the violation of their fundamental rights. 

A writ petition can be filed in the High Court (Article 226) or the Supreme Court (Article 32) of India when any of your fundamental rights are violated. The jurisdiction with the High Courts (Article 226) with regards to a writ petition is wider and extends to constitutional rights too.

The writs- Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition

Types of Writs

Habeas Corpus (HCP)

• A petition for personal liberty or release from detention can be filed by an Individual through a petition of Habeas Corpus which means ‘to have control of body’. On receipt of the petition against the order of the lower court or the individual under which the person is or being detained, the court can issue a direction of release.
• For instance, a writ petition of Habeas Corpus for release of any person can be made if he is to be placed before the magistrate within 24 hours or if he is arrested for no reason or the reason for his arrest is unjustifiable.
• If a person has been illegally detained, he himself, a friend or even a relative can file a writ of Habeas Corpus.

• Habeas Corpus can not be issued in the following cases 
• 1. When detention is lawful
  2. When the proceeding is for contempt of a legislature or a court
  3. Detention is by a competent court
  4. Detention is outside the jurisdiction of the court

Mandamus

• Mandamus means we command.A writ of Mandamus is issued by a higher court to a lower court, tribunal or a public authority to perform an act which such a lower court is bound to perform. If a public official is not performing his duty, the court can order it or him/her to do that. 
• Unlike Habeas Corpus, Mandamus cannot be issued against a private individual

• Mandamus can not be issued in the following cases:
1. To enforce departmental instruction that does not possess statutory force
2. To order someone to work when the kind of work is discretionary and not mandatory
3. To enforce a contractual obligation
4. Mandamus can’t be issued against Indian President or State Governors
5. Against the chief justice of a high court acting in a judicial capacity

Prohibition

• The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court which is higher in position issues Prohibition writ against a court which is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.

• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
• It can’t be issued against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari

• The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is against issued by a court higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or to squash their order in a case.
• It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. 

• It not only prevents but also cures for the mistakes in the judiciary.
• It cannot be issued against legislative bodies and private individuals or bodies.

Quo-Warranto

• The writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’Court issue this writ to prevent illegal usurpation of a public office by a person. Through this writ, the court enquires into the legality of a claim of a person to a public office.

• Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved
• It can’t be issued against private or ministerial office

For more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia. dont forget to like our fb page too. Its just a click away - absolutely FREE

ADULTERY - SECTION 497

"Adultery law arbitrary," said the Chief Justice of India, Dipak Misra. 

Section 497 deprives women of dignity and that women are treated as property of her husband. The court said any provision treating women with inequality is not constitutional and it's time to say that husband is not the master of woman. Adultery will remain a ground for divorce, the bench added.

The supreme court of India has struck down 158 years law on Adultery in sec 497 of IPC.

what does  IPC sec 497 say?

497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Background for the judgement 

in October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. The CrPc Section 182(2) deals with prosecution for offences against marriages.

On 27.09.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.

Further the court also said that if a person commits suicide due to the adulterous relation of the partner, then it could amount to abetment to suicide if there is sufficient evidence.

Grounds for Divorce?

The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery

Each religion is governed by its own matrimonial law. Striking down of Section 497 would apply to a Hindu, Muslim, Christian and all other religions in India. However each religion would be governed separately by the respective matrimonial laws.

The Hindu law :  

• Under Section 13 (1) of the Hindu Marriage Act, adultery is described as, " Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."
• in order to prove adultery, two elements would be necessary-

1. the intention to be adulterous 
2. the opportunity to gratify such an intention. 

• the burden of proof in such cases would lie on the petitioner and it is their duty to show the court that the respondent is guilty.

The Muslim Law: 

• The Muslim Marriage Act does not have any specific provision for adultery. However Section 2 (viii) of the Muslim Marriages Act says that if a man associates himself with a woman of evil repute or leads an infamous life, it amounts to cruelty to the wife.

Kalim Uz Zafar case

the court had held that the term cruelty can be interpreted widely so as to include mental and physical cruelty. Under the concept of Lian in the Islamic laws, when a man accuses a woman of adultery, the wife can bring a claim for dissolution of marriage.

The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty. In another ruling the same HC had said that where a man himself committed adultery and then prosecuted his wife for the same, this was a sufficient cause to seek divorce on the grounds of cruelty.

The Christian Law: 

• Section 10(1)(i) of The Divorce Act of 1869 says, "Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery."
• Earlier only a Christian man could file for divorce on the grounds of adultery.
• For a Christian woman to file for divorce on this ground, it either had to be incestuous or coupled with other grounds like desertion or cruelty.

For more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia. dont forget to like our fb page too. Its just a click away - absolutely FREE

TRIPLE TALAQ

Triple talaq, also known as talaq-e-biddat, instant divorce was a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allowed any Muslim man to legally divorce his wife by uttering the word TALAQ (the Arabic word for "divorce") three times in oral, written or, more recently, electronic form.

The background of the Triple Talaq lays with the following case-

Shayara Bano v. Union of India

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through instantaneous triple talaq (talaq -e biddat). She filed a Writ Petition in the Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate Articles 14, 15, 21, 25 of the Constitution.

 Talaq-e- bidat is a practise which gives a man the right to divorce his wife by uttering ‘talaq’ three times in one sitting without his wife’s consent. Nikah Halala is a practise where a divorced woman who wants to remarry her husband would have to marry and obtain a divorce, from a second husband before she can go back to her first husband. And polygamy is a practice which allows Muslim men to have more than one wife.

Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code (Article 44) in India.

On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional.Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional. The remaining two declared the practice to be constitutional while simultaneously asking the government to ban the practice by enacting a law.

India's Muslim neighbours are among 23 countries that have banned triple talaq already.

The Quran established means to avoid hasty divorces.It prescribes two waiting periods of three months before the divorce is final in order to give the husband time to reconsider his decision. On 30 July 2019, Parliament of India declared the practice of Triple Talaq as illegal, unconstitutional and made it punishable act from 1 August 2019 which is deemed to be in effect from 19 September 2018.

In a major political win for the Modi government, the Rajya Sabha, or upper house of Parliament, where the ruling NDA did not have a majority, approved the bill (99–84) on 30 July 2019 after a lengthy debate.

The bill followed a 2017 Supreme Court ruling that the practice of instant triple talaq is unconstitutional and a divorce pronounced by uttering talaq three times in one sitting is void and illegal.

 

 

For more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia. dont forget to like our fb page too. Its just a click away - absolutely FREE

Difference between Plaintiff,Petitioner, Applicant and Appellant

Difference between Plaintiff,Petitioner, Applicant and Appellant

Plaintiff

Plaintiff means one who seeks remedy in a civil action.
In case of civil action for e.g. in law of torts or any violation of statute that leads to civil violation of rights, a suit is filed in court. These actions are such that they have a conflict between two parties that is plaintiff and defendent .

Petitioner

Petitioner is a person who files a petition in court. A petition is simply a plea filed in court to enforce a legal or constitutional or statutory right. Petitioner is one who invokes the help of a court to redress his grievances. For e.g. in case of public interest (PIL) we file a petition like -  M.C Mehta vs Union of India

Applicant 

Applicant is one who applies in a court. Until the court takes the cognizance of a matter a person remains an applicant. When it does take the cognizance the person becomes plaintiff or petitioner as the case may be.

Appellant

Appellant is one who appeals to a higher court than one which has already settled the dispute. When the party against whom a decision is pronounced , if it is not satisfied by the decision, can further file an appeal in higher court with a hope to get the decision of laws court reversed. 

For more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia.Its just a click away - absolutely FREE

Torts - Damnum Sine Injuria And Injuria Sine Damnum

Torts - Damnum Sine Injuria 

And

 Injuria Sine Damnum

The word tort has been derived from the Latin word “tortum”, which means ‘to twist’. Basically tort means a conduct which is not straight or lawful, but, on the other hand, twisted or unlawful. 

Law of torts is said to be a collection of circumstances in which remedy is given by the court by way of damages for the legal harm caused by one person to another.

Tort in Indian provision has been defined under Limitation Act, 1963 under Section 2 (m) as “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Salmond has define tort as “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of contract or breach of trust or other merely equitable obligation.”

Three elements which need to be proved before constituting tort are as follows:

1. There must be an act or omission on the part of defendant.
2. That act or omission should be in violation of legal right that is vested in the plaintiff.
3. Defendant should commit such wrongful act or omission that give rise to a legal remedy.

There are 2 legal maxims that fall under this category:

1. Damnum sine injuria
2. injuria sine damnum

• Damnum sine injuria

This legal maxim refers to as damages without injury or damages in which there is no infringement of legal right. 

Since there is no infringement of legal right so no cause of action arises in the cases of damnum sine injuria.

There is an implied principle in law that there are no remedies for any moral wrong unless and until there is any infringement of legal right. The court may not grant any sort of damages even if the act done by the wrong doer is intentional.

In a landmark case of Gloucester Grammar School (1410) 

a schoolmaster, set-up a rival school to that of the plaintiff and since because of the competition the plaintiff had to reduce their fees from 40 pence to 12 pence per quarter. Thus claimed for compensation from the defendants for the losses suffered. It was held that the plaintiff had no remedy for the losses suffered, since the act though morally wrong has not violated any legal right of the plaintiff.

• Injuria sine Damnum

This legal maxim refers to as the infringement of the legal right without causing any harm to the plaintiff. 

Every person has the right to his property, immunity of hid person and infringement of this right is actionable per se. The law provides liberty to every person whose legal right has been infringed to seek relief under the provisions of Specific Relief Act by way of injunction and declaration.

In the landmark case of Ashby Vs. White (1703) 

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

Another Indian case on the same ground is Bhim Singh v. State of Jammu & Kashmir

In this case plaintiff was an M.L.A of Jammu & Kashmir parliamentary assembly. When he was going to attend the assembly session, police arrested him wrongfully and was also taken to the Magistrate within 24 hours. Plaintiff was deprived of his legal right as well as a fundamental right under Article 21 of the Indian Constitution was violated. The defendant was held liable and had to pay compensation of Rupees 50,000. The court in the case provided exemplary damages for the same.

Damage received by the plaintiff is because of the loss suffered; therefore the amounts for damages are determined just to compensate the victim. The court is bound to award to the plaintiff at least nominal damages for the loss suffered by the plaintiff. It is to bring the plaintiff to a position at a place whereas if no wrong was committed, to bring back to original place.

Along with the this maxim another maxim is also related to it is “Ubi jus ibi remedium: ” which means that “Whenever there is a legal right there is a legal remedy.” sometimes it is expressed as there is no wrong without a remedy.

For more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia.Its just a click away - absolutely FREE

TORTS- Absolute Liability

Absolute Liability

Inception in India

The following modifications in the existing Doctrine of Rylands vs. Fletcher led to the following Doctrine of Absolute Liability that prevented the defendants from taking up any defence against payment of compensation.They will not be allowed any exceptions neither can they take up any defence like that of Act of God' or Act of Stranger'.

• If an industry or enterprise is involved in any inherently dangerous activity, then for any damage arising out of the conduction of that activity, the defendants (the owners of the industry) will have no access to any defence or exception and will be absolutely liable to pay compensation to the aggrieved parties.

• such industries provide safety equipments to its workers to prevent any mishap. Therefore, this will safeguard the interests of the workers and will give them a refined, safe working atmosphere.

• In absolute liability, compensation or damage to be paid is exemplary in nature. The amount decided upon should be more than the damage caused as industrial hazardous accidents generally causes mass death and destruction of property and environment.

M.C. Mehta vs. Union of India, A.I.R. 1987 ( also known as oleum gas tragedy case)

There was leakage of oleum gas on the 4th and 6th December,1985 from one of the units of Shriram Foods and Fertilizers Industries, Delhi,Resulting in the death of an advocate and several others.An action was brought against the industry through a writ petition under Article 32 of the Indian Constitution by way of a Public Interest Litigation (PIL). 

The S.C. of India was dealing with the cases, the judges in this case refused to follow the Strict Liability Principle set by the English Laws and came up with the Doctrine of Absolute Liability. The court then directed the organizations who had filed the petitions to file suits against the industry in appropriate courts within a span of 2 months to demand compensation on behalf of the aggrieved victims.

Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India, (1991) 

This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place between the intervening night of 2nd and 3rd December, 1984. Leakage of methyl-iso-cyanide(MIC) poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a major disaster and over three thousand people lost their lives. There was heavy loss to property, flora and fauna. The effects were so grave that children in those areas are born with deformities even today.

A case was filed in the American New York District Court as the Union Carbide Company in Bhopal was a branch of the U.S. based Union Carbide Company. The case was dismissed there owing to no jurisdiction. The Government of India enacted the Bhopal Gas Disaster (Processing of Claims) Act, 1985 and sued the company for damages on behalf of the victims. The Court applying the principle of ‘Absolute Liability’ held the company liable and ordered it to pay compensation to the victims.

Absolute Liability can also be upheld by the courts in case of a single death without any mass destruction of property or pollution of the environment.

Klaus Mittelbachert vs. East India Hotels Ltd.,

In this case, the plaintiff, a German co-pilot suffered grave injuries after diving into the swimming pool of the five-star restaurant. Upon investigation, it was seen that the pool was defectively designed and had insufficient amount of water as well for which no caution board was kept too . The pilot’s injuries left him completly paralyzed leading to death after 13 years of the accident. The court held that five-star hotels that charge hefty amounts owe a high degree of care to its guests. This was violated by Hotel Oberoi Inter-continental, New Delhi when the defectively designed swimming pool left a man dead. This made the hotel absolutely liable for payment of damages. The hefty amounts taken from the guests by the hotel owners guaranteed them to pay exemplary damages to the deceased or in any such further cases. It was decided that the plaintiff would receive Rs. 50 lakhs for the accident caused.

However, with the death of the plaintiff while the suit was still pending in the court, the cause of action also died and the aforesaid decision was reversed on appeal by the defendant party.

For more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia.Its just a click away - absolutely FREE

TORTS - strict liability

STRICT LIABILITY

Strict liability is a legal doctrine that holds a party responsible for their actions or products, without the plaintiff having to prove negligence or fault.

Definition:

 The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape - Blackburn, J.

Even if the defendant took necessary precautions and followed safety requirements, strict liability crimes are unique in that they would still hold the defendant responsible. Due to the nature of the activity, the defendant should be able to foresee that a person could be harmed by it.

The Strict Liability principle is also called as ‘No Fault Liability’. This is contradictory to the general principle of negligence in torts where a person can be held liable for commission of a tort only when the plaintiff can prove negligence on his part and the defendant himself is unable to disprove it

Strict liability emphasis on 3 major essentials

Dangerous Thing
 According to this rule, the liability of escape of a thing from a person’s land will arise only when the thing or substance collected is a dangerous thing i.e. a thing which is likely to cause mischief or damage to other people in person or their property on its escape. 

In various torts cases filed worldwide, the ones involving the doctrine of strict liability have held “large body of water, gas, electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious fumes, rusty wires, etc. as dangerous things.

Escape:

The thing that has caused damage or mischief must ‘escape’ from the area under the occupation and control of the defendant.

Non-natural use of land: 

Water collected on land for domestic purposes does not amount to non-natural use of land but storing it in huge quantity like that in a reservoir amounts to non-natural use of the land (Rylands vs. Fletcher). This distinction between natural and non-natural use of land can be made possible by its adjustment to existing social conditions. Growing of trees is held natural use of land but if the defendant is found to grow trees of poisonous nature on his land, then it is non-natural use of the land. If the land has been used naturally yet a conflict has risen between the defendant and the plaintiff, owing to natural use of land, the court will not hold the defendant liable.

Mischief: 

To make the defendant liable under the doctrine of strict liability, the plaintiff needs to prove that the defendant made non-natural use of his land and escape of the dangerous thing caused mischief/damage to him. The resultant damage needs to be shown by the plaintiff after successfully proving that unnatural use of the land was done by the defendant.

Rylands v. Fletcher (17 july 1868) Almost 152years passed by after its judgement and this case still hold a very significant part in Torts.

The defendant (Fletcher) an owner of a mill in Answorth with an aim to improve water supply for his mill employed independent and efficient engineers for the construction of a reservoir. During their excavation of the ground underneath, they came across some shafts and passages but chose not to block them. Post construction of the reservoir when they filled it with water, all the water flowed through the unblocked old shafts and passages to the plaintiff’s (Rylands) coal mines on the adjoining land and inundated them completely. 

The engineers kept the defendant in the dark about the occurrence of these incidents. On a suit filed before the court by the plaintiff against the defendant, the court though ruled out negligence on the defendant’s part but held him liable under the rule of Strict Liability.

Any amount of carefulness on his part is not going to save him where his liability falls under the scope of ‘No Fault Liability’.

Further exceptions/defences to the Doctrine of Strict Liability:

• Damage caused due to natural use of land
• Consent of the Plaintiff
• Plaintiff’s Own Default
• Act of Stranger
• Act of God
• Common Benefit of Plaintiff and the Defendant
• Statutory Authority

Damage caused due to natural use of land : the defendant is able to prove before the court that he made natural use of his land, he will be exempted from the rule of strict liability applying on him.

Consent of the Plaintiff : the plaintiff has either expressly or impliedly consented to the presence of a source of danger and also there has been no negligence on the defendant’s part, the defendant will not be held liable. 

It is basically the defence of ‘Volenti non fit injuria’ taken by the defendant in the court.

Plaintiff’s Own Default : When damage is caused to the plaintiff solely due to his own fault, he shall receive no remedy in such cases.

Act of Stranger: When damage is caused due to wrongful act committed by a third party or any stranger over whom the defendant had no control, the defendant will not be held liable under such circumstances.

Act of God: acts which are beyond human control and contemplation, caused due to superior natural forces, the principle of strict liability does not apply.

Common Benefit of Plaintiff and the Defendant: the act or escape of the dangerous thing was for the common benefit of the defendant and plaintiff, the defendant will not be held liable.

Statutory Authority :any act done under the authorization of the law/statute like the government of a country or a state government causes any damage to a person, it acts as a defence to an action for tort.

for more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia.Its just a click away - absolutely FREE

BILL TO AN ACT - Part 3

In this series of bill to an act, part 3 will be the conclusive session. Here we will be discussing on other types of bills, joint session and what happens if the bill lapses in the house?

Joint session of both Houses

In case of a deadlock between the two houses or in a case where more than six months lapse in the other house, the President may summon, though is not bound to, a joint session of the two houses which is presided over by the speaker of the Lok Sabha and the deadlock is resolved by simple majority. 

As said in previous chapters of the same topic " After President’s assent, the bill becomes the act and is published in the Indian Statute Book."

• Ordinary Bill (Article 107, Article 108)   -Concerned with any matter other than financial subjects
• Money Bill (Article 110) -  Concerned with financial matters like taxation, public expenditure, etc
• Financial Bill (Article 117 [1], Article 117[3]) - Concerned with financial matters (but are different from money bills)
• Constitutional Amendment Bill (Article 368) - Concerned with the amendment of the provisions of the Constitution.

Money Bill (Article 110)
 Concerned with financial matters like taxation, public expenditure, etc. The provisions of a money bill are-

Bill is not a money bill when- 

• Imposition of fines or other pecuniary penalties
• Demand or payment of fees for licenses or fees for services rendered
• Imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes

The process of a money bill can be studied using the following map of who introduces, what is the role etc

Constitutional Amendment Bill (Article 368)  

Concerned with the amendment of the provisions of the Constitution. It is the process of making changes to the nation's fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Article 368.

Recent Constitutional Amendment Bill:  Rajya Sabha has passed the Constitution (126th Amendment) Bill, 2019 which seeks to extend the reservation for SCs & STs in Lok Sabha and State Assemblies by another 10 years till January 25, 2030.

for more details and notes please visit, share, follow and subscribe to the blog and youtube channel adityapedia.