Legal Language Notes

- Asst. Prof. Maitreyee Raut

Class: F.Y. LL.B.
Academic Year: 2024 - 2025

INDEX
Sr. No. Topic Pg. No.
LEGAL CONCEPTS
1 Concept of Law 2
2 Sources of Law 5
a. Custom
b. Legislation 7
c. Precedent 10

3 Concept of Right 13
4 Concept of Duty 15
5 Concept of Wrong 17
6 Concept of Remedy 18
7 Concept of Person 21
8 Concept of Jurisdiction 25
9 Concept of Fact 26

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 1. CONCEPT OF LAW

Jurisprudentially, Law consists of rules prescribed by Society for the governance of

human conduct.
- Sir William Blackstone (English Jurist)

❖ Different approaches of Law:

i. General sense: a body of rules to guide human behaviour.

ii. Wider sense: The law means the order by which all the things in the universe
and nature functions.
iii. Narrower sense: the Laws are the rules enacted by the State, to direct humans
what to do and what not to do, backed by provisions of punishment for its
disobedience.

❖ Origin of Law: came through the concept of ‘Social Contract’: People give up
their absolute freedom to the head of Society in exchange for the security and
protection of their lives and property. The head has the power to define rules and
regulations to regulate Society which is nothing but the ‘Laws’ whereas in case of
failure to follow these rules were termed as ‘Wrongs’. The head had the power to
sanction/ punish the wrongs.

Different Connotations of Law:

i. From the point of view of society: Society is not aware of existence of Law
unless they are affected by any wrong around them. For them, Law means
justice, morality, reason, order, righteousness, etc.
ii. From the point of view of legislature: Law means statutes, Acts, rules,
regulations, orders, ordinances etc.
{Ordinance is a temporary law passed by the President due to the absence of a
Parliamentary Session.}
iii. From the point of view of Judges (Judiciary): Law means rules made by the
Court, in the form of decrees, judgments, orders, injunctions etc.
iv. From the point of view of Decree Holder: Law means rights and remedies.
v. From the point of view of Judgement Debtor: Law means duties, liabilities,
obligations etc.

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Definition of Law:

⮚ Article 13 of the Constitution of India defines what Law includes. Law includes
any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of Law (the power of Law to control/
influence human behaviour e.g. the driver stops the car when he sees the traffic
signal turn red).
Order: An administrative decision
Bye-Law: Rules made by Society/ Organisation to control its working and
members.
Notification: A notice issued by Government to make public aware of the Legal
provisions or changes in Law.
Usage: habitual or customary ‘practice’ that is recognised.

⮚ Savigny: Law is the rule whereby the invisible borderline is fixed within which the
being and the activity of each individual obtains a secure and free space.

⮚ Austin: Law is the command of the sovereign backed by a sanction.

Types of Law:

1. Substantive Law: This law defines the rights, privileges, duties of the people,
describes sanction for disobedience of duties, nature and extent of legal liabilities.
E.g. Bharatiya Nyaya Sanhita (it is criminal Substantive Law – that defines
Offences and Punishment), Law of Torts, Law of Contracts.

2. Procedural Law: This law elaborates the process to be followed by the Courts,
and other Law Enforcement Authorities while enforcing these rights, liabilities of
the people. E.g. Criminal procedure Code – Bharatiya Nagarik Suraksha Sanhita
(it is a Criminal Procedural Law), Civil Procedure Code.

3. Written Law: Law that is embodied in a document e.g. the Constitution of India,
Statutory Laws/ Legislative Enactments.

4. Unwritten Law: Law that is not reduced in written form, e.g. the Common Law. It
is observed by the Courts, includes Judgments, Precedents, customs (orally
transmitted from one generation to another), and usage.

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5. Civil Law: The word ‘civil’ relates to the ordinary citizens and their private
concerns/ issues/ affairs. It deals with the private relations between members of
the State. E.g. Family Law, Property Law, Contract Law (the law that governs
parties who enter into contract).

6. Criminal Law: The law that deals with offences, prevention of crimes, punishment
and Treatment of Prisoners. It also lays the Procedures to be followed by Criminal
Courts, Police and Prison Administration.

7. Public Law: The Law in which the State has an interest e.g. Constitutional Law
(the law of land – Lex Loci, each organ of State derives its powers and functions
from the Constitution), Criminal Law, Administrative Law.

8. Private Law: The law, which deals with matters in which the State has no direct
interest. It defines rights and duties of the private persons, deals with day-to-day
transactions of the legal relationship between individuals.

Purpose of Law:

● Justice: The ultimate purpose of law is justice. Salmond says that law is "the body
of principles recognised and applied by the State in administration of justice”.
Justice means to give a man his due (what he deserves).

● Peaceful change: Society is dynamic, not static. Law must be flexible enough to
adjust with the changing needs of the Society. ‘Law’ is the only powerful means
through which peaceful change can be brought in the Society.

● Stability in the Society: To bring stability in the Society, there must be a balance
between different interests of people. The Law must aim to maximize the fulfilment
of interests.

*****

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 2. SOURCES OF LAW

A. Custom
Custom is one of the oldest source of Law. In Ancient times, there were no legislation
or codified (consolidated)/ written Laws, therefore people relied on customs.

❖ How a custom is born?

People find ‘an act’ to be good, agreeable. They start following it. Due to frequent
observance, it becomes a ‘Practice’. It is approved by people, accepted and passed
on to the generations.

❖ Reasons why people follow a custom:

i. Conscious choice of Individuals
ii. Custom is guided by religion, superstition, or belief.
iii. Supported by the opinion of public.
iv. National conscience or common conscience of nation, e.g. standing up in
respect when the national anthem is played.
v. Social Pressure: fear of sanction, social outcast/ boycott, social ostracization in
case of failure to follow a custom.
vi. Imitation: One generation follows what their ancestor practiced.

❖ Meaning: ‘Custom is a habitual course of conduct, observed uniformly and

voluntarily by people.’

❖ Definitions:
1. Law Lexicon: Custom is a law, not written, it is established by long usage and the
consent of our ancestors.
2. Austin: Custom is a rule of conduct, which the governed observed spontaneously,
and not in a pursuance of law set by a political superior.
3. Harprasad v. Shivdayal (1876) The Privy Council observed, ‘Custom is a rule
which in a particular family or in a particular district or in a particular sect, class or
a tribe, has from long usage obtained the force of a law.’

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KINDS OF CUSTOM: There are two main types of Customs, ‘with sanction’ and
‘without sanction’.
Custom with sanction: Customs that are recognised and can be enforced by Law.

a. Legal Custom: Customs that are legally binding on the people following it.
They have a force of law. They are backed by consequences in case a person
does not follow. Here, agreement of people to follow the custom is not
necessary, everyone is bound by it. E.g. Saptapadi in Hindu Marriage, Mehr
concept.
i. General Custom: followed by all the members of Society. E.g. Marriage
Institution, Patriarchal Society.
ii. Local Custom: followed by a particular community or locality, not by the
whole Society. E.g. Nayars Community follows Matriarchal Society.

b. Conventional Custom: Convention means agreement. Some customs are

binding on the parties due to the fact of agreement between them to follow this
custom.
- They can be called as ‘Usage’
- E.g. usages in Trade, agreement between tenant and landlord.

Custom without sanction: Customs that are non-obligatory in nature, followed due
to public pressure. According to Law, there is no duty to follow such custom, it is not
recognised by the Law. e.g. Religious customs like Vrat (fasting).

ESSENTIALS OF A VALID CUSTOM

1. Immemorial Antiquity: The custom in question has been followed since a very
long time, whose origin beyond human memory. E.g. Marriage, Pilgrimage.

2. Continuity: It must be followed without any interruption. Any interruptions in

practice may raise doubt on its validity.

3. Reasonableness: The practice must be rational and not unreasonable/ against

reason. It should conform to the norms of justice, fairness and equity. It must be of
public utility and not cause any inconvenience or mischief.

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4. Conform to the Statute: It cannot be in conflict with the Statute. In case of conflict,
The Statute shall prevail over the custom. E.g. Sati Practice, Child Marriage.
Unless the statute recognises the custom e.g. Prohibited degrees of Marriage in
Hindu Law does not allow people to marry within their relatives – however if a
particular community has such custom, they will come under exception – Hindu
Law allows them to do so; Right of religious denominations to manage their own
affairs – rules for clothing of devotees.

5. Must not be immoral or opposed public policy: Meaning of ‘Opposed to Public

Policy’. Courts as well as Laws have declared such practices as invalid and
punishable e.g. Devdasi system.

6. The Custom must be certain and specific, it cannot be unclear and ambiguous.

B. Legislation: (2nd Source of Law)

⮚ Legislation means “the laws or rules enacted by the Legislative Body (Legislature)
of the Government”. It is one of the most important sources of Law. It is superior
than other sources of law such as Customs and Precedent.

⮚ The word Legislation is derived from ‘legis – means law’ and ‘latum – means to
make/ set’.

⮚ Definitions:

1. Gray defines, “Legislation is the formal utterances of the legislative organs of the
Society.”
2. Salmond: “Legislation is that source of law which consists in the declaration of
legal rules by a competent authority.”
There are three different meanings associated with the term ‘Legislation’ as a
source of Law
i. Strict sense: the rules declared by the competent authority and is framed.
ii. Widest sense: all methods of Law-making, which includes ‘direct’ and ‘indirect’
legislation.

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iii. Technical sense: legislation encompasses “every expression of the will of the
legislature, whether the legislature itself makes the law or not”. E.g.: The State
has ratified several International conventions, though it has not enacted the
convention.

3. Austin: ‘There can be no law without a legislative act.’ Legislation includes

activities that result in law making or amending, transforming or inserting new
provisions in the existing law.

KINDS OF LEGISLATION:

a. Supreme Legislation: The Laws passed by the Legislative Authority or the

body that has Law making powers is called Supreme Legislation. E.g.
Protection of Children from Sexual Offences Act, 2012 was enacted by
Parliament is a kind of Supreme Legislation.

b. Subordinate Legislation: When a body, other than the main legislative

authority, makes the Laws, such a Law is called Subordinate Legislation. Such
laws are made and enforced under the control of the Parliament.
I. Delegated/ Executive Legislation: The Parliament or the State
Legislature confers its law making powers on the Executive bodies of the
Government to deal with problems that have arisen in society in an
immediate manner. The authority conferring this power can also take
back this Law making power.
e.g. Section 25 of the Environment (Protection) Act, 1986 confers
powers on the Central Government to makes rules.

II. Municipal Legislation: When Municipal Bodies are given power to

make laws to address the issues in their area, surroundings.

III. Autonomous Legislation: when an independent body or an

organisation makes to govern its own functioning and members. E.g.
Mumbai University makes laws to regulate the College, syllabus and
Exams.

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Advantages of Legislation:

● Written Law: it is advantageous as it is fixed, clear and precise. It establishes rule

of Law.

● It is Published: They are declared in Public, to make the public aware of the
existence of Law. The Public cannot claim ignorance of Law once it is published.

● Abrogative Power: Legislature has two powers, one is constitutive and other is
abrogative. Earlier power, the legislature enacts or creates newer laws. Abrogative
power means the legislature can bring a change or amend, repeal or replace the
Law. Why Abrogative power of Legislature is necessary?

● Effectiveness as to division of Labour/ work: A law defines how each body

connected to the Law is supposed to function. E.g. Juvenile Justice Act, 2015
confers powers upon different bodies (Juvenile Justice Board, Child Welfare
Committee) and states how they must function.

● Incomparable with other sources of Law

● A Legislation may include provisions to deal with future, unforeseeable situations.

Disadvantages of Legislation:

● Rigid and inflexible: The procedure to amend a law is complex and time-
consuming. Until the time a law is changed, many people may suffer due to the
loopholes in the Law.

● Ambiguity and Lack of Clarity: Laws are drafted by humans, and are not full-proof.
It may open door to plethora of interpretations of one single provision of Law.

● Arises conflict: Certain laws are questioned for affecting rights of concerned
persons. No laws made by the Legislature should conflict with fundamental rights
guaranteed by the Constitution.

● No individuality: Laws are passed keeping in mind the Society in general, while the
Judgements are passed keeping the disputants in view, on the merits of the Case.

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C. Precedent: (3rd Source of Law)

⮚ In general English, the term precedent means, ‘a previous instance or case which
is, or may be taken as an example of rule for subsequent cases, or by which some
similar act or circumstances may be supported or justified.’

⮚ According to Keeton, ‘a judicial precedent is a judicial decision that has some

degree of authority attached to it.’

⮚ According to Salmond,
- ‘In a loose sense, it includes merely reported case law which may be cited &
followed by courts.
- In a strict sense, it means a case law, which not only has a great binding
authority but must also be followed.’

⮚ Precedent is a source of law whereby all the inferior or subordinate courts are
bound by the decisions passed by the Higher or superior Courts.

❖ Essentials of Precedent: The following elements are necessary for the existence
of Precedents.
1) Hierarchy of Courts: for the operation of Rule of Precedent, there must exist a
hierarchy of Courts. As it requires the Lower Courts to be bound by the Judgement
of the Superior Court.
2) Reporting of Case laws: the Courts should maintain a record of Case laws, it will
make the subordinate Courts to refer them with ease of availability.

❖ Application of Precedent in India:

Article 141 of the Constitution of India: ‘The law declared (the decisions given) by
the Supreme Court shall be binding on all courts within the territory of India.’

In case of Bengal Immunity Co. v. State of Bihar (1955) – The Supreme Court
decided ‘Whether the phrase ‘all courts’ under Article 141 of Constitution includes
‘Supreme Court’? The Apex Court held that Supreme Court is not bound by its own
decisions; it can depart from its earlier decisions if a valid reason exists.

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Concept under Precedent:
● Stare Decisis: The Principle of Precedent is called Stare Decisis in Latin. It means
‘to stand by what is decided’ or ‘let the decision stand in its rightful place’.
It has the following four implications:
i) Each subordinate court is bound by the decision of higher courts.
ii) To certain extent higher courts are bound by their own judgements. (a single
Judge bench is always bound by the decision of the division bench or larger
bench)
iii) Decisions of courts of same rank have a persuasive effect on one another.
iv) Judgement by a single judge is not binding on a bench of judges.

● Ratio Decidendi: Reasoning behind the Judicial Decision/ reason for deciding.
It is the rule of Law preferred by a Judge as the basis of his decision. It is the statement
of Law applied on the facts of the case; this Principle is binding on the Courts if any
parties approaches it with similar facts and circumstances.

● Obiter Dicta: Observation or Opinion, viewpoint of the Judge.

According to Keeton, obiter dicta can be described as ‘statement of law made by a
judge in the course of a decision, arising out of the circumstances of the case, but not
necessary for the decision.’ They are not binding in nature.

❖ Types of Precedent:

1. Authoritative Precedent: they are binding in nature and a Judge has to follow
it whether he approves it or not.
a. Absolute Precedent: they are completely binding without any exceptions
to it.
b. Conditional Precedent: They are completely binding unless there are
exceptions. In case of exceptional situations, such precedent would not
apply. The Judge has to find a reason to reject a Precedent.
2. Persuasive Precedent: which are not binding in nature, but a Court of Law can
use it for reference, may even choose to follow it.
e.g. Foreign Judgements, Judgments of one High Court are persuasive to the
other High Courts because of their equal standing.

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❖ Circumstances that weaken or destroy Precedents:

1. Precedent is per incuriam/ Ignorance of Statute: when a Judge give a decision

in ignorance of a Law. Per Incuriam means lack of care. Even is a Judge is
aware of existing law, and does not give relevance to it and passes a
Judgement – then it will be considered a mistake and can be vitiated.
Similarly, a Subordinate Court passes a Judgement overlooking or ignoring a
decision of Higher Court, it is a Judgment per incuriam.

2. Inconsistency in decisions of Court: In case the previous decisions of the Court

are inconsistent with each other, then the Subordinate Court is not bound by it,
it is free to decide the case on merits.
3. Error in decision: When the Courts decisions is based on wrong principles.

4. Abrogation of Decision: A decision ceases to have effect, when a Statute/ Rule

is passed abrogating its effect or takes a different stand.

5. Precedent sub silentio: A decision is said to be sub silento when a decision

does completely addresses or answers a point of Law/ question of Law.

Merits of Precedent:

⮚ Certainty in Law: It allows to the Courts a ready reference as well as the Lawyers
can rely on the precedents to base their arguments in a case. Similar cases are
dealt in a same manner.

⮚ Degree of Flexibility to the Superior Court: Supreme Court is not bound by its own
decisions; it can change the Law/ decision whenever it is necessary to do so.

⮚ Practical in nature: it is based on real facts rather than legislation.

⮚ A detailed piece of Law: precedent deal with a case in depth, gives reason behind
a decision in an elaborate way.

⮚ Saves time of Courts: Once a decision becomes a settled rule of Law, the Courts
need not spend time deliberating upon what decision is to be taken, they can simply
apply to a similar case.

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Demerits of Precedent:

▪ Promotes rigidity: The Subordinate Courts are bound by it unless the Superior
Court override its decision.

▪ Difficulty in implementing the right precedent in right case: Not each and every
case is same. Each case must be decided on the basis of its parties, facts and
circumstances. The Rule of Precedent does not allow to do so.

▪ Causes Stagnancy: it leaves the Subordinate Courts without any scope to bring
change/ innovation in the Law.

▪ Blocks future vision: The Judge is required to refer to the past decided cases
instead of considering present case and future consequences.

▪ Depends on incident of Litigation: a principle is established by the Court of Law

only when the parties approach to with their dispute and not otherwise.

*****
3. CONCEPT OF RIGHT

❖ Salmond: Right is an interest, recognised and protected/ enforced by a rule of

Law.
Meaning of
- ‘Interest’: desires which one seeks to fulfil/ achieve.
- Recognized by Law: Rights are guaranteed and upheld by the State.
- Enforced by Law: State provides sanction/ punishment in case of violation
of Law.

❖ Right is an entitlement to have or to do or receive from others from others within

the limits prescribed by Law – ‘Lawful claim’ or ‘entitlement’

❖ Austin: A party has a right when another or others are bound or obliged by Law
to do or forbear something towards or in regard to him.

❖ Kinds of Rights:

De jure/ Legal Rights: The rights which are enforced and recognised by Law are
called Legal Rights. E.g. Right to education, health.

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De facto rights: Rights that exist in reality, but not recognised or enforced by Law.
E.g. Moral Rights, Song Producer who paid fees for Composer, Singer and Lyricist
work may not give credit to them for the Song. In this case, Right to get recognised
for work is a Moral Right, not a legal right.

❖ Essentials of Legal Right:

i. Person of inherence: The person who holds the rights is called a Right
holder, also known as Person of inherence.
ii. Person of incidence: the duty holder, the person who has the duty to respect
the right of the other person.
iii. Content of Right: The act or omission, which is obligatory on the duty holder.
E.g. When A has right to life, B has a duty not to injure or cause any harm
to A.
iv. Subject matter of right: the object or subject over which the right is
exercised. E.g. A owns a Land, A has a right to property.
v. Title of Right: the Process followed to acquire the right from one person to
another. E.g. A has received Land by Gift, Sale or Inheritance.

TYPES OF RIGHTS:

1. Positive and Negative Rights: Positive Right means when the other party has
a duty to do something towards the person’s rights, State has a duty to provide
resources for citizen’s Right to education. Negative Right means when the
person has a duty not to do something towards one’s right. E.g. A must not
interfere in B’s privacy, because B has right to privacy.

2. Perfect and Imperfect Rights: Perfect Rights are those, in violation of which
the aggrieved may take action in the Court of Law.

E.g. P within time files a suit for recovery/ enforcement against M for breach of
contract. So, P is exercising her perfect right. However, when the time limit to
take action (limitation period) is over, and then P cannot claim her remedy.
Imperfect right is not enforceable though the person’s right still exists. In case,
M agrees to pay damages after the limitation period, then P has right to take it.

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 3. Right in Rem and Right in Personem: When a right can be enforced against
any person in the world, right in rem exists against the Society at large. E.g.
Tort of defamation, any person who defames can be sued.

Right in Personem can be enforced only against specific persons. E.g. A and B
have entered into a Contract, and then A can sue only B in case of breach of
contract.

4. Proprietary and Personal Rights: Proprietary Right means rights in relation

to one’s property, estate, assets, and other economic benefits. E.g. right over
house, share, furniture. They are transferable and inheritable as well.

Personal rights are rights related to one’s status. It includes elements of one’s
well-being and progress. E.g. Right to reputation, education, vote, marriage,
profession. They are not transferable or inheritable.

5. Inheritable and Uninheritable Rights: Inheritable right means rights which

can be transferred from one generation to another. They survive even after the
death of the right holder, e.g. Proprietary rights.

Uninheritable Rights are ones that cannot be transferred. They die with the right
holder, e.g. Personal rights.

6. Rights in re Propria and Re Aliena: Rights in re Propria means the rights in

one’s own property. They are absolute in nature, grants complete power over
one’s property. E.g. Rights over one’s house.
Right in re aliena means rights exercised over someone else’s property. E.g.
House is given on rent, the tenant exercises limited right such as to reside in
Landlord’s property. The tenant cannot sell or gift this house to other person.

❖ Are rights necessary for man’s survival, growth and development?

(conclude by answering this question)

*****
4. CONCEPT OF DUTY
● MEANING OF DUTY:

▪ The term duty comes from ‘due’. Due means to owe something to other person.

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▪ Salmond: A duty is an obligatory act; opposite of which would be a wrong.

▪ In Jurisprudence, Duty is a correlative of Right.

▪ In legal terms: It is legal obligation to do or not to do something.

● CONCEPT OF VINCULUM JURIS: in Latin, it means a Bond of Law.

Vinculum Juris, a legal bond between the two parties, creating rights and
obligations that can be enforced through the legal system. It is like a contract
between two parties, when they enjoy their set of rights, at the same time they are
legally bound to fulfil their obligations, in case of failure the other party can take
legal action to enforce the Contract and seek remedy.

● CLASSIFICATION OF DUTIES:
1. Legal and Moral Duties: The duty, which is enforced by Law, is a legal duty.
Opposite of legal duty is a legal wrong. E.g. Right to health mandates that there
should be no selling of adulterated food items, it is a legal duty of the seller to
maintain qualify of food.
Moral Duty is not recognised but followed by Human conscience and Social
perception. Opposite of moral duty is moral wrong. In case of failure to fulfil
moral duty, there is no punishment under Law. e.g. To be punctual, value
other’s time.

2. Positive and Negative Duties: When the duty holder is supposed to do

something in respect of other person’s right, it is called a positive duty. E.g. To
pay taxes which one is bound by law, to pay one’s debts.
When the law prohibits/ refrains a person from doing something, such duty is
termed as a Negative Duty. E.g. It is one’s duty not drink alcohol and drive a
vehicle, not to trespass into property of others.

3. Primary and Secondary Duties: A duty that exists on its own, it is independent
in nature. Whereas a secondary duty relies on other duty for its existence. E.g.
Duty not to injure someone is a primary duty while duty to damages in case of
injury caused is a Secondary duty.

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 4. Absolute and Relative Duties: Absolute duty are ones, which are not followed
by a right. While a relative duty is followed by a right e.g. right to education of
citizen is obligation on State to provide adequate resources to achieve this right.
In case of Absolute Duty, there is no corresponding right. Austin defines four kinds
of Absolute Duties:
i. Self-regarding duty – duty not to harm self, not to consume harmful
substances.
ii. Duty towards indeterminate people/ public – Not to commit nuisance,
disturbance.
iii. Duty to those who are not human beings – A man has an absolute duty
towards animals, nature, God.
iv. Duty towards sovereign or State – State has the power to command and
take citizens into compulsory service for public purposes, Article 23(2) of the
Constitution of India.

5. CONCEPT OF WRONG
● MEANING OF WRONG:

▪ ‘Wrong’ means violation of legal right another person.

▪ There is a possibility of every right getting violated, hence it gives rise to the
concept of ‘Wrong’.

▪ Generally, laws are intended to establish and protect the rights, in fact it deals with
both rights and wrongs.

▪ The laws first fixes/ defines what is ‘right’ and with a view to protect this right
effectively, the Law proceeds to identify wrongs. Further, it makes a procedure on
or measures to prevent this wrong from occurring and provides redressal in
case it is committed.

● WRONGS ARE OF TWO TYPES:

1. Private Wrongs result from violation of rights of a private individual or a group
of individuals. Except for the injured individual, the Society is not affected by

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 such a wrong. The injured party can approach Court (Civil Court) for relief/
redressal.
E.g. of civil wrongs are as follows: Tort, Breach of Contract, Family dispute,
property dispute, etc.
a. Intentional Wrongs: When a person with an intent/ meant to do something
bad, e.g. of a hungry boy stealing a loaf of bread; what is the intention and what
is the motive in this example?
b. Negligence/ carelessness: a wrong committed due to the breach of duty of
care.

2. Public Wrong: Violation of public rights and duties are called Public wrongs.
- When such wrongs are committed, they affect the whole society/
community. Although, an immediate victim is an individual, it is considered
as a threat to the whole Society.
- The State / subordinate authorities such as Police, Criminal Courts, Prison
and Disciplinary Authorities pursue it.
- e.g. Crimes and misdemeanours (crimes less serious than felony/ petty
offences such pickpocketing, in case this petty offence is not contained or
dealt seriously then it may cause nuisance to common public).
- Public wrongs attract penalties like Imprisonment, Fine, Forfeiture of
Property, Death penalty (for serious crimes), and Community Service.

*****
6. CONCEPT OF REMEDY

● A legal remedy lays solutions or actions available to individuals or group of

individuals whose rights have been violated. Remedy acts as a redressal
mechanism to restore the violated right.

● Maxim: Ubi Jus Ibi Remedium: Where there is a right, there must be a remedy.
Without remedy, there can be no existence of right. Remedy is like an insurance
policy for a valuable object (Right) that a person has, without which there can be
redressal.

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● REMEDIES ARE OF VARIOUS TYPES:

⮚ Judicial Remedies: The reliefs granted by the Law and exercised in an

appropriate manner, through legal means. The remedy that is granted to the
aggrieved Party by the Court of Law is called a Judicial Remedy.

⮚ Extra-judicial Remedies: If the injured party takes law in his hand, to restore
his infringed rights, then it is termed as Extra-judicial remedy. For example, use
of force to remove the trespasser, re-capture the goods from the person, who
is having its unlawful possession.

● REMEDY UNDER CIVIL LAW:

i. Compensation: monetary damages to compensate/ aid the injured person.
In case of breach of contract, the parties can fix this amount at the time of
entering a Contract.
ii. Unliquidated damages: When the amount of money to be given as a
remedy is not fixed by the Parties in advance. It is decided on the basis of
the injury/ loss caused to a person.
iii. Injunction: It is a Court order, whereby a Party is required to do something
or to refrain from doing an action. It is a preventive relief to the Party who
fears that the other party may affect his right and cause him injury.
iv. Abatement of nuisance: An order of Removal, reducing, stopping or
destroying of something that causes nuisance to the neighbours,
surrounding area.

● REMEDY UNDER CRIMINAL LAW:

i. Punishment: It is the result of the crime, it is a tact used to incapacitate the
criminal (prevent further crimes), reform the criminal and to deter the people
with criminal tendencies in the Society. Different types of penalties are
Imprisonment, Death Sentence.
ii. Award damages: there are two types of damages which the Court may
award as a punishment:
a. Compensatory damages: It is awarded as a compensation to the victim.
b. Punitive damages: it is awarded to punish the criminal.

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● REMEDY UNDER CONSTITUTIONAL LAW:
In Constitutional Law, for the breach of fundamental rights, the remedies available
are in the form of Writs. ‘Writ’ means a command of the Court requiring a person
to do or not to do something.

i. Habeas Corpus: ‘To have the body’, it is a remedy available to secure

freedom of the person detained illegally by any other person – Executive
body like Police or even a Private person. The Court shall first check
whether the detention is lawful or unlawful. In case the detention is found to
be unlawful, the Court shall direct the detaining authority to release the
detainee at once/ immediately.
ii. Mandamus: ‘We Command’, it is issued to a Public Servant or a
Subordinate Court (Judge) to perform his part of duty which he has refused
to perform or stop him from doing something which he is not supposed to
do according to the Law (to prevent/ correct an abuse of power/ discretion).
e.g. Judge refuses to rescue self from a matter/ case in which he is involved
personally, he may be directed to remove himself by this Writ.
e.g. In case a Public Officer unlawfully goes to demolish a building, then the
Court can restrain his act by this Writ.
iii. Prohibition: it is an order issued by Higher Court to the lower Courts to
keep themselves within the limits of jurisdiction, when they are acting in
‘excess of jurisdiction’ or ‘in absence of jurisdiction’ or ‘acting in violation of
Principles of natural Justice.’
iv. Quo Warranto: ‘By what authority?’, the Court inquiries into the legality of
the person holding a Public Office – as to by what authority he claims the
Office. If the grounds are not well founded then the Court may direct removal
of such person.
v. Certiorari: ‘Cure’ – after the wrong has already taken place. It is an order
of the Higher Court to quash the decisions passed by the subordinate Court
without jurisdiction or in excess of jurisdiction.

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 7. CONCEPT OF PERSON

The word ‘Person’ is derived from Latin word persona, meaning one’s personality. It
also means mask worn by Actors playing different roles in Drama/ Play.

● LEGAL DEFINITION:

▪ Salmond: Person means any being, to whom law attributes as capable of

interest and therefore, rights of acts and therefore duties.

▪ Gray: A person is an entity to which rights and duties may be attributed.

● THERE ARE TWO TYPES OF PERSONS:

1. Natural
2. Legal/ Artificial.

Natural Person: A living human being with legal rights and responsibilities. He is
capable of possessing personal (subjective) rights, rights related to his status. He is
capable to make decisions for himself unless he has not attained the age of majority.
In case a person is under legal age, a guardian may take decisions on his behalf.

He owes specific obligation (Contractual Liabilities) and general obligations (towards

the whole Society: not to injure, not to create nuisance.)

In many civilisations, like Roman, ‘Slaves’ were not considered as person. In India,
‘Daas/ dasi’ system exited for centuries, who owned no or very less rights and lived at
the mercy of their Owners.

❖ Dead person: Is dead person counted as a legal person? No, with death
I. they lose all their rights, except:
i. Right to dignity: A dead person must be treated with utmost dignity;
the Honourable Supreme Court has upheld this right. Ashray
Adhikar Abhiyan v. Union of India, 2002, it was held that a
homeless person has a right when he dies to be cremated as per his
religion. The State has a duty to ensure that deceased receives a
decent cremation.
ii. There must be no physical exploitation of a dead body.

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 iii. To receive justice in case death is caused by Crime.
iv. To carry out dead person’s legal will.
v. Right to reputation: The dead person should not be defamed by any
kind of statement, or visible representation, made or published
intending to harm his reputation.
vi. Right to privacy: There should be no disclosure of a person’s private
information or privacy even after death.
II. And are freed from their obligations, except:
- Financial Obligations such fines and loans shall be extracted through his
property, if it exists.

Unborn Child: This term means a child in the mother’s womb, ‘child in utero’, who is
in a developing stage. Can an Unborn child be considered as a Legal Person? Yes, it
has the capacity to acquire certain rights, but these rights are available to him subject
to his being born alive. Some of the rights of unborn child are –

1. Right to life guaranteed under Article 21 of the Constitution. It is an offence to

abort a foetus beyond legal limit allowed under the Medical Termination of
Pregnancy Act, 1971. There is a legislation, which bans sex determination of
foetus to prevent female foeticide.
2. The Transfer of Property Act, 1882 allows any person to bequeath his property
on an unborn child.

The Law confers similar rights and duties upon ‘bodies other than humans’
under legal fiction. Legal person: A non-human legal entity that is treated a person
for legal purposes. They are also known as a Juridical/ Juristic person. They are
recognised by Law and are entitled to rights and duties similar to a natural human
being. It is an artificially created person to be recognised in Law as such.
Bharatiya Nyaya Sanhita, 2023 defines ‘person’ includes any company or association
or body of persons, whether incorporated or not.

● Characteristics of a Legal person:

- Capable to sue as well as being sued.
- Can possess and transfer property.

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 - As they are not capable of acting on their own, it is always their representatives
or guardian acting on their behalf.

● Can the following entities be granted ‘personhood’?

1. Company/ Corporation: a registered association that has separate identity from
its owners, established for commercial purpose. Some characteristics of a
company are perpetual succession, common seal, can hold property in its name
and can raise funds – in the form of shares, stakes and limited liability (the company
bears the loss and not holding the shareholders liable).
In the case of Tata Engineering & Locomotive Company Ltd. V. State of Bihar, the
Supreme Court observed, ‘the corporation in law is equal to a natural person and
has a legal entity of its own’. The Corporation is separate from that of its
shareholders and its assets are separate from those of its shareholders.

2. Deity: God as an abstract concept cannot be granted personhood. However, an

Idol of a God in the temple can be considered as a legal person, capable of suing
and being sued. It can hold property in its name, but it is a Priest (Pujari) or Trustee
who act as a Guardian.
Recognition of Deity as a legal person started during the British Rule in India.
In the case of Dakor Temple (1887), the Bombay High Court held that “a Hindu
idol is a juridical subject and the pious idea that it embodies is given the status of
a legal person.” The word embodies means to represent in human form.

In Bishwanath v. Shri Thakur Radhaballabhji (1967), the Supreme Court held

that if a shebait (the person who looks after the property management of the deity)
does not discharge their duties properly, a devotee can move court as “friend of
the deity” (Sakha).
E.g., Ram Lalla idol was recognised as a Juristic person in the Ram Janmabhoomi/
Babri Masjid Case. He being a ‘perpetual minor’ was represented by Sakha. The
disputed land was transferred to the infant deity himself.

In Yogendra Nath Naskar v. Commissioner of Income Tax (1969), the Supreme

Court ruled that not all idols qualify as a legal person but only when they are

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 consecrated, (e.g. undergo Prana-prathista – installation ceremony) and installed
at a public place for the public at large.

3. Animal: What if an animal is harmed unlawfully in India? Do animals have any

rights? Law does not recognise their rights. Indirectly, they possess rights when
we humans are bound by Law not to endanger their life, not to kill them. There is
a Fundamental Duty, to do no harm to animals. There are laws in India, which
protect animal life.

There is no Vinculum Juris between a human being and an animal. In case a

human harms it, then there is mere disregard of obligations and not infringement
of rights. As animal cannot be granted personhood, it cannot be held liable for its
harmful acts. In case a pet animal causes you any harm, then it is the pet owner
liable to pay damages. In case of a wild animal harming you, the State is liable to
redress any harm caused.

4. River: Humans have always revered rather worshipped rivers. There is a concept
of Public Trust Doctrine. Nature, Rivers are assets of the State that looks after it as
a trustee, the citizens are the beneficiaries. That means the common public has
the right over these resources. Humans have constantly exploited rivers by
polluting it and there are limited liabilities imposed on them in comparison to other
types of wrongful acts.
The question is can river be granted personhood? In case it is granted then, harm
done to river shall be considered as harming a person (human).
e.g.1: New Zealand conferred personhood to Whanganui River in 2017.
e.g.2: Uttarakhand High Court recognised Rivers Ganga and Yamuna as persons;
however, the Supreme Court revoked this decision in 2017.
e.g.3: The High Court of Bangladesh held all rivers in its Country as living entities.
Supreme Court of Bangladesh upheld this decision in 2019.

The consequences of declaring river as a ‘person’ are as follows:

- Public and private entities to be held liable equally, now only the private entities
are held liable for their acts, State has a freehand to do whatever with its
resources.

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 - Heavy penalties can be imposed on the polluters and encroachers or rivers.
- No loan can be given to such a polluter or encroacher.

*****

8. CONCEPT OF JURISDICTION
● MEANING:
- Juris means ‘Law’ and diction means ‘speech’ or ‘declaration’. To what extent
the value of a person’s words extends.
- It is the authority given by Law to a Court to try certain types of cases.
- It means extent of the power of the Court to administer justice.
- Law fixes jurisdiction, parties cannot decide whether to confer or take away
jurisdiction of a Court. It is very important to find the Court’s jurisdiction before
filing of a lawsuit.
- In case, the Court passes an order without having jurisdiction over the matter,
then that order or judgement is null and void (not valid) even though it may be
correct on merits/ decision is correct.
- In Hridoy Nath Roy v. Ram Chandra (1921) described Jurisdiction as the
power to hear the dispute between the parties and adjudicate or exercise any
judicial power over them.

● TYPES OF JURISDICTION:
1. Subject matter jurisdiction: A Court can hear and decide cases of a particular
type only. E.g. Criminal case, Civil case, Family dispute case, Revenue case.
2. Territorial Jurisdiction: A Court can exercise its power only within a
geographical limit, which is delineated by the Law. e.g. the orders of a High
Court can extend and be enforced within its State, not beyond it.
3. Pecuniary Jurisdiction: power of the Court to hear a case, which is based on
the value or amount of the subject matter. In case the suit exceeds in value
then the Court shall not entertain such a case. E.g. Jurisdiction of Consumer
courts is based on monetary value of the disputed goods/ services, District
Forum –upto 1 crore, State Forum –upto 10 crore and National Forum above
10 crores matter.

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 4. Based on persons: Generally, Courts are empowered to deal with cases of
adult persons. However, there are special Courts such as Juvenile Justice
Board that deals with minor children.
5. Original Jurisdiction: The power of the Court to hear and decide a case in
first instance. E.g. Magistrate Court is the Court of original jurisdiction to hear
the criminal cases.
6. Appellate Jurisdiction: A party in a case is aggrieved with the decision given
by the Trial Court, then it may appeal to the Higher Court (request the Higher
Court reverse the decision given by the Trial Court.) The Court that hears and
decides the appeal case is called an Appellate Court, such a Court exercises
Appellate Jurisdiction.

*****
9. CONCEPT OF FACT
● Meaning:

▪ Fact is a piece of information or information that can be verified as true or false.

▪ When we talk about a fact, it already taken place/ done (in the past) or is in the
process of occurring/ happening (present moment).

● Two questions decided upon by the Court:

▪ Question of Fact: The Court is concerned with what actually happened or took
place at the place of incident.

▪ Question of Law: A Judge has to decide which laws/ rules would apply to the
given set of facts in a case.

A fact is an act, event, incident, or a circumstance.

{Act includes omission,
Event is a general occurrence like a Cricket Match or Concert,
Incident is a happening that is sudden and requires immediate response to resolve
the issue,
Circumstance is a situation or a condition connected or relevant to an issue}

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Sec. 2 of the Bharatiya Sakshya Adhiniyam (Indian Evidence Act) defines Fact.
Fact means and includes,
a. Any thing, state of things or relation of things, “capable of being perceived by the
senses.”

❖ A person has heard something, that is a fact.

❖ A person has seen something, that is a fact.

❖ That a person said some words, that is a fact.

b. Any mental condition of which “any person is conscious.”

Thus, facts of two types: Physical and Psychological facts:

Physical facts are one, which can be perceived by our senses. E.g. A saw accused
person entering the crime scene.

Psychological facts are those, which cannot be perceived by senses but anything,
which a person is conscious of. E.g. Intention, Motive, Malice, knowledge, good faith.

Fact is a raw material, based on which rights and duties are created. It can be proved
by evidence or observation.

● Facts admissible in Court of Law are of two types:

1. Fact in issue:
- It is the principal fact to be proved before the Court
- If proved, the consequence is restoration of right or imposition of liability or
disability.
- E.g. In case of murder, whether A killed B is one of the fact in issue.
Whether A had the intention to kill B?

2. Relevant facts:
- They are not the main facts in dispute.
- They are connected to the fact in issue in some or the other way.
- They help to prove or disprove the fact in issue.
- E.g. Circumstantial evidence or alibi.

*****

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