Introduction to Law and Legal System in India – CMA Inter Business Laws and Ethics Study Material is designed strictly as per the latest syllabus and exam pattern.
Introduction to Law and Legal System in India – CMA Inter Law and Ethics Study Material
Question 1.
Distinguish between ‘Ratio Decidendi’ and ‘Obiter Dicta’ in a judgement by a Court. (Dec 2018, 4 marks)
Answer:
Ratio Decidendi: These are the principles derived from a particular case, which underlie any judicial decision. These principles act as guidelines for future similar cases and are extremely helpful to judges. Moreover, the ratio decidendi carry authoritative weightage. The ratio is the extraction of law derived from the decision or judgment. Such extractions or principles can be applied to other similar cases, thus saving on judicial time and ensuring uniformity. The judge has the right to decide upon the ratio decidendi and to apply it on any given case.
Obiter Dicta:
Literally, it means that which is “said by the way”. It covers within its ambit all that the judges have said while delivering a particular judgment. These statements might not be critical to the judgment or decision of the particular issue raised, as they usually go above and beyond the requirement of a particular case. Thus, they just carry the force of persuasive precedents and do not bind the judges. They are, however, free to take them as an aid to decision-making. It sometimes becomes difficult for lawyers and the Court to determine whether something said by the judges is obiter dicta or ratio decidendi. Hence, judges have the authority to go against such obiter dicta.
Their differences are as follows:
| Basis | Ratio decidendi | Obiter dicta |
| 1. Meaning | Extracts or principles derived from a particular case. | Everything said by the Judges during the course of the discussion of the case. |
| 2. Weightage | Authoritative weightage | Persuasive but not authoritative |
| 3. Binding factor | Bind the judges | Do not bind the judges |
| 4. Critical element | Critical as central to the case. | Not critical as they are more in the nature of discussions. |
Question 2.
Describe the right of minorities to establish and administer educational institutions as enshrined in the Constitution of India. (June 2013, 6 marks)
Answer:
Article 30 of the Constitution of India enshrines minority rights. As per the Constitution, minorities include both religious and linguistic minorities.
This Article gives the following rights to minorities:
- Right to set up and run educational institutions.
- Right to be duly compensated in case of compulsory acquisition of property of such minority institutions.
- Right against discrimination by the State in giving aid to educational institutions, on the grounds of an institution being governed by a minority faction.
Case: T.M.A. Pal Foundation y. State of Kamataka.
Question 3.
“Article 20 of the Constitution of India guarantees protection against self-incrimination”. Explain brief ly.(Dec 2018, 4 marks)
Answer:
According to Article 20(3), “no person accused of any offence shall be compelled to be a witness against himself.” It means that no one can be forced to testify against himself or to incriminate himself. However, this protection is available to the accused only when the following conditions are fulfilled:
- He must be accused of an offence;
- He is compelled to be a witness; and
- Such a compulsion would cause or force him to give evidence against himself.
So, as per the corollary to this rule, if a person is not an accused or is not in the capacity of a witness when he makes the statement or if the statement is made by him without any compulsion of any sort and also does not result in his making a statement against himself, then he cannot avail of the protection afforded by this rule.
Moreover, such protection is available when the person has been formally accused or is examined as a suspect ¡n a criminal case. It also includes within its ambit witnesses who believe that their statements could expose them to criminal charges. This is true not only for an ongoing investigation but also it he fears apprehension in cases other than the one being investigated. [Selvi vs State of Karnataka].
Question 4.
What are the restrictions on right to freedom of speech and expression under Article 19 of the Constitution of India? (Dec 2018, 4 marks)
Answer:
Article 19 of the Constitution of India guaranteed to the citizens the following six freedoms:
- Freedom of speech and expression.
- Freedom of assemble peaceably and without arms.
- Freedom of associations and unions.
- Freedom to move freely throughout the territory of India.
- Freedom to reside and settle in any part of the territory of India.
- Freedom to practice any profession, or to carry on any occupation, trade of business.
Restrictions: These freedoms are not absolute and are subject to reasonable restrictions. The State has the power, to make laws imposing reasonable restrictions on the exercise of the above rights in the interest of the following:
- The Sovereignty and Integrity of India.
- The Security of the State.
- Friendly relations with Foreign States.
- Public order.
- Decency or Morality.
- Contempt of Court.
- Defamation.
- Incitement to an offense.
- Prescribing professional and technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.
Hence, the freedom of speech and of the expression does not bestow an absolute right to express without any responsibility. The restriction to this is placed by Article 19, Clause (2), of the Indian Constitution that enables the legislature to impose reasonable restrictions on free speech to ensure the following:
- Security of the State – actions intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained.
- Friendly relations with Foreign States – to stop the friendly relations of India with other States from being jeopardized.
- Public order – for general peace, safety, and tranquility.
- Decency and morality – to stop obscenity and indecency from spreading.
- Prevention of Contempt of Court – includes both civil contempt or criminal contempt.
- Prevention against defamation – any statement that injures the reputation of another is to be stopped.
- Discouraging incitement to commit an offence, and maintaining sovereignty and integrity of India.
This can, however, be done by a duly enacted law and not by mere executive action. The Constitution, hence, allows reasonable restrictions to be placed on the rights of speech and expression. The Supreme Court in A K Gopalan vs State of Madras, 1950 has also held that Fundamental Rights are not absolute.
Question 5.
Discuss ‘the procedure established by law’ under Article 21 of the Constitution of India with decided case laws. (Dec 2018, 8 marks)
Answer:
The main aim of Article 21 is to ensure personal liberty except according to procedure established by law. This implies that if it is an action initiated by the State only then will the right be available. Hence, this right works to the exclusion of actions initiated by private individuals, in which case the aggrieved would have to take refuge under Article 226 of the constitution or under general law.
However, where the act of a private individual supported by the state infringes the personal liberty or life of another person, the aggrieved will certainly receive the protection of Article 21. ‘State’ includes government departments, legislature, administration, and local authoritiès exercising statutory powers, etc., but it does not include non-statutory or private bodies having no statutory powers.
Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State that are not according to procedure established by law. ‘Right to Lite’ relates to the dignity of life, and includes all things that add meaning and dignity to the life of an individual.
In the case of Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Others it was said that:
Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair, and just and not arbitrary, whimsical or fanciful.
In another case of Olga Tellis and others vs Bombay Municipal Corporation and others, it was further observed: Just as a malafide act has no existence in the eye of law, even so, unreasonableness vitiates Law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is not just or unfair in the circumstances of a case, attracts the vice of. unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.
The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan vs State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below:
- The right to go abroad.
- The right to privacy.
- The right against solitary confinement.
- The right against handcuffing.
- The right against delayed execution.
- The right to shelter.
- The right against custodial death.
- The right against public hanging.
- Doctors assistance.
Discuss also the cases of:
A K Gopalan y. State of Madras: Procedure made by law means a procedure enacted by the law of a state. Bachan Singh y State of Punjab: The makers of the Constitution recognized that a person can only be deprived of his life or his personal liberty through a just, fair, and reasonable procedure that is duly established by law.
Question 6.
Explain the freedom of association under the Constitution of India. What reasonable restrictions have been imposed on this freedom under Article 19 of the Constitution of India? (June 2019, 5 marks)
Answer:
According to Article of 19(1) (C) of the Constitution of India, all citizens shall have the right to form associations or unions. The freedom of association includes freedom to hold meetings and to take out processions without arms.
Right to form associations for unions is also guaranteed so that people are free to have the members entertaining similar views. This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:
- The sovereignty and integrity of India, or
- Public order, or
- Morality.
A question not yet free from doubt is whether the fundamental right to form association also conveys the freedom to deny to form an association, in the case of Tikaramji v. Uttar Pradesh, AIR 1956 SC 676, the Supreme Court observed that assuming the right to form an association “implies a right not to form an association, it does not follow that the negative right must also be regarded as a fundamental right’.
Question 7.
Vijay, an accused, committed an offence of dacoity in 2015. At that time dacoity was punishable with imprisonment of 10 years. In 2016 during his trial, a law was passed which made dacoity punishable with life imprisonment Which penalty would be applicable on accused Vijay’? Discuss the answer with reference to Article 20(1) of the Indian Constitution. (Aug 2021, 5 marks)
Answer:
Protection against ex-post facto laws:
According to Article 20(1), no one shall be convicted of any offence except for violation of a law that made the act committed an offense. Nor can a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence be charged for the offence.
Ex-post facto laws:
These are laws which punish what had been lawful when done. The Constitution protects anyone who had committed an act earlier when the act was not punishable from being punished with retrospective effect. if a particular act was not an offence according to the law at the time when the person did that act, then he cannot be convicted under a law which with retrospective declares that act as an offence. For example, something done in 2000 which was not an offence then under any law cannot be declared as an offence under a law made in 2018 giving retrospective validity and adding applicability to ¡t from a back date, say from 2000.
Similarly, the penalties for an offence too, cannot be enhanced with retrospective effect, so as to bring more punishment to bear upon someone who had committed an act against that law.
Shiv Bahadur Singh y. State of Vindhya Pradesh – In this case, it was clarified that Article 20 (1) prohibited the conviction under an ex-post facto law, and that too the substantive law. This protection is not available with respect to procedural law. Thus, no one has a vested right in procedure.
Hence, Vijay cannot be punished with life imprisonment as that penalty was introduced in 2016, whereas the offence took place in 2015. So for him, the penalty would be ten years.
Question 8.
What are the essential conditions of a valid custom? Discuss. Explain any four. (Aug 2021, 4 marks)
Answer:
Requisites of a Valid Custom For any custom to be valid and binding, it has to satisfy the following criteria:
- Historical or Immemorial: It must have continued from ancient times, for example, the Hindu marriage rights are said to have continued from the earlier times and have hence acquired the status of custom.
- Certainty: There must not be any ambiguity in the custom or its application.
- Reasonableness: Besides fulfilling a purpose, the custom must not be something as to cause unnecessary hardship to the people following it. It will be followed and upheld only till the point It has usefulness to society. It will likely be dropped if it is opposed to the general principles of equity, justice, and prudence.
- Compulsory Observance: In order to be universally acceptable, a custom has to have been observed or followed for a long time. It should, in fact, have become more like a rule of conduct or behaviour or a way of life.
- Compliance with Law and Public Morality: It should be compliant with the general ideas of public morality and policy, as anything against that would not only be unconstitutional but also unacceptable to the people.
- Generally acceptable: Anything applicable universally can be said to be a custom; if left to personal choice, it loses that status.
- Quiet Enjoyment: There should not be a court dispute or a contradiction that hampers the enjoyment of the custom.
- Consistency: There should not be a hindrance caused to other laws, and this custom should be followed consistently down the times, and by all people.
Question 9.
Briefly describe the Fundamental Rights against exploitation under Constitution of India. (Dec 2021, 5 marks)
Answer:
The Right against Exploitation is contained in Articles 23 and 24, which provide for rights against exploitation of citizens as well as non-citizens. The rights are ensured by way of certain restrictions, against the State as well as against private persons.
(a) Prohibition of traffic in human beings and forced labour:
Article 23 bans human trafficking, beggar, and other similar forms of forced labour, seen in rural and interior parts of the country mostly. These articles term these practices unconstitutional and any person forced to suffer these practices can complain against the violation of his fundamental right under this article. The exceptions here are the State which can impose compulsory services for public purposes such as for defence or for social service etc. However, in so doing, the State cannot discriminate on grounds of religion, race, caste or class.
(b) Prohibition of employment of children:
Article 24 bans the employment of children below the age of fourteen in any factory or mine. Guidelines for this were given by the Supreme Court in the landmark case of M.C. Mehta y. State of T.N. The topic is also detailed in various other acts that protect the rights of children, viz, the Employment of Children Act, 1938; The Factories Act, 1948; The Mines Act, 1952; The Apprentices’ Act, 1961; and the Child Labour (Prohibition and Regulation) Act, 1986.
Introduction to Law and Legal System in India CMA Inter Law and Ethics Notes
Fundamental Rights:
Fundamental Rights is that certain elementary rights such as right to life, liberty, freedom of speech and freedom of faith and so on should be regarded as inviolable under all circumstances and that the shifting majority in legislatures of the country should not have a free hand in interfering with fundamental rights. The fundamental right is called the Magna Carta of India.
Prohibition of discrimination on certain grounds:
Article 15(1) provides that the state shall not discriminate against any citizen on grounds only of:
- Religion
- Race
- Caste
- Sex
- Place of birth or
- Any of them
Ex-post facto law
No person shalt be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater 8 than that which might have been inflicted under the law in force at the time of the commission of the offense.
Customs
A custom, to be valid, must be observed continuously for a very long time without any Interruption. Further, a practice must be supported not only for a very long time but it must also be supported by the opinion of the general public and morality. However, every custom need not become law.
Kinds of Customs
- General Customs: These types of customs prevail throughout the territory of the State.
- Local Customs: Local customs are applicable to a part of the State, or a particular region of the country.
- Conventional Customs: Conventional customs are binding on the parties to an agreement.
Judicial decisions can be divided into following two parts
1. Ratio decidendi: ‘Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law.
2. Obiter dicta: An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value. Having considered the various aspects of the precedent i.e. ratio another, it is clear that the system of precedent is based on the hierarchy of courts.
The kinds of legislation can be explained as follows
(i) Primary Legislation: When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament is considered as sovereign. The law enacted by the Indian Parliament also falls in the same category. However, in India, powers of the Parliament are regulated and controlled by the Constitution, through the laws enacted by it are not under the control of any other legislative body.
(ii) Subordinate Legislation: Subordinate legislation is a legislation which is made by any authority which is subordinate to the supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence, and continuance of such legislation totally depends on the will of the sovereign authority.
Subordinate legislation further can be classified into the following types:
(a) Local laws: In some countries, local bodies are recognized and conferred with the law-making powers. They are entitled to make bye-laws in their respective jurisdictions. In India, local bodies like Panchayats and Municipal Corporations have been recognized by the Constitution through the 73 and 74th Constitutional amendments. The rules and bye-laws enacted by them are examples of local laws.
(b) Laws made by the Executive: Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in one authority or it may be distributed among the various organs of the State. In most of the modern States, sovereignty is generally divided among the three organs of the State.