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Concept of Justice

Introduction

Man has been continuously struggling for the maintenance of justice. In democratic systems, justice is given the highest place. One of the most important functions of states is to ensure justice to their citizens. Every state must always possess the capability to administer justice according to its legal system. Even in ancient states, one of the primary duties of rulers was to guarantee justice to their subjects. Justice is one of the most important moral and political concepts. The word comes from the Latin jus, meaning right or law. … Aristotle says justice consists in what is lawful and fair, with fairness involving equitable distributions and the correction of what is inequitable. Concept of justice is as old as the political theory itself. Different interpretations are given to justice from time to time. Some writers regard justice as virtue while others hold it for equality’ Some consider it as rule of law’. Justice is not only an integral part of political but also of ethics, law, philosophy, etc.

Meaning of Justice

In the most typical terms, justice is an ideal representing something that’s just and right. It primarily means being just, impartial, honest and right. what’s just could rely upon the context, however, its demand is important to the thought of justice. For example, the natural law school of jurisprudence believes that justice means that the implementation of nonsecular laws. On the opposite hand, modern jurisprudence says justice suggests that the implementation of ideas like equality and liberty. However, in each of these examples, justice just suggests that social control of what the law perceives to be right. In the modern context, justice primarily suggests that the popularity and implementation of laws created by legislatures. furthermore, within the modern context, in contrast to ancient states, this performance lies largely on judicial organs. According to Salmond, laws are the bodies of principles that tribunals acknowledge and apply whereas administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals acknowledge and enforce. Therefore, justice generally means the recognition, application, and enforcement of laws by courts. this is often totally different from the understanding of justice within the ancient period when it was given a religious and moralistic meaning. Justice is the most important and most discussed objective of the State, and Society. It is the basis of orderly human living. Justice demands the regulation of selfish actions of people for securing a fair distribution, equal treatment of equals, and proportionate and just rewards for all. It stands for harmony between individual interests and the interests of society. Justice is of central importance to political theory. In defending or opposing laws, policies, decisions and actions of government, appeals are made in the name of justice. Persons involved in every agitation for securing their interests always raise the slogan: “We want Justice”. All civil rights movements are essentially movements for justice

Types of Justice

Distributive justice

Distributive justice, also referred to as economic justice, is regarding fairness in what people receive, from goods to attention. Its roots are in social order and it’s at the roots of socialism, wherever equality may be a fundamental principle.If people don’t assume that they’re obtaining their fair share of something, they will look for first to achieve what they believe they deserve. they’ll well also seek other kinds of justice.

Procedural justice

The principle of fairness is additionally found within the idea of fair play (as hostile the justifiable share of distributive justice). If people believe that a fair method was utilized in deciding what it to be distributed, then they may well accept an imbalance in what they receive as compared to others. If they see each procedural and distributive injustice, they’re going to likely seek restorative and/or retributive justice.

Restorative justice

The first factor that the betrayed person could seek from the betrayer is a few forms of restitution, putting things back as they ought to be. The simplest form of restitution could be a straightforward apology. Restoration means that putting things back as they were, therefore it’s going to include some act of contrition to demonstrate one is really sorry. this might include action and even extra payment to the offended party. Restorative justice is additionally known as corrective justice.

Retributive justice

Retributive justice works on the principle of punishment, though what constitutes fair and proportional penalization is widely debated. whereas the intent may be to dissuade the offender or others from future wrong-doing, the re-offending rate of the many criminals indicates the limited success of this approach. Punishment in practice is more concerning the satisfaction of victims and those who care regarding them. This strays into the realm of revenge, which might be repeatedly more severe than reparation as the hurt party seeks to make the opposite person suffer reciprocally. In such cases ‘justice’ is often outlined showing emotion rather than with intent for fairness or prevention.

Conclusion

We can conclude that justice is concerned with human welfare and the protection of reasonable interests. It can be experienced only when each citizen will perform his duties in the right perspective. A just society is a society where every individual gets legal. Political, social, economic justice. For every just society, there should be a proper combination of equality liberty, and justice. Because there is a close relationship between them and in the last individual is the subject matter of these concepts.

About the author –

This article is authored by Prabhjot Singh, third year B.B.A. LL.B. (H) student at Galgotias University, Greater Noida.

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Case Analysis: Lee vs. Lee’s Air Farming Ltd 1960

Facts of the Case

In 1945 the Lee formed the company named Lee’s Air Farming Ltd. Mr. Lee was the sole managing Director of the company which was incorporated by him.

Lee Being the managing director of company he appointed himself as a pilot of the company and he was employed by the company as its chief.
In March 1956 Lee died in a flying accident when he was going for a business of the company.

Lee exercised unrestricted power to control the affairs of the company and made all the decision relating to contract of the company.
Company entered into various contract with insurance agencies for insurance of the employees.

The personal policies taken by Lee on his name in which some of the premiums of policies were paid from bank account of the companies but afterward it was debated in the lee account in company book.
Mrs. Lee sued for compensation as the widow of the worker under New Zealand worker Act 1922. In which she said lee was employee of a company.

Issue Raised in the Case

Mrs. Lee was able to claim the compensation, under compensation act 1922?

Respondent Company claimed that as Lee was the owner of company and lee was having maximum number of share in the company due to which he was not employee of the company so Mrs. Lee is not entitled for compensation.

Respondent claimed that Mr. Lee couldn’t be owner of the company because there is no relation of master and servant between him and company.

Would the decision have been different if he was killed carrying out more directorial task?
Was there have Separate Legal entity?

Relevant Law and Principle

The law was focused in this case was Separate Legal Entity and workers compensation Act 1922.

Argument of the Case

The insurance company argued that Mr. Lee was the governing general director of company and have maximum number share in the company so he can’t be an employee in company.

Respondent argued that a worker was defined as any person who has entered into or work under a contract of service with a company as an employer but Mr. Lee was director of the company.

Mrs. Lee argued that she is capable for the compensation under the under New Zealand worker Act 1922.
Appellant also argued that his husband died when he was going for the work of company
Appellant also defending respondent argument said that Mr. Lee is also employee of the company according to the workers act 1922.

Judgement

The New Zealand court appeal refused to hold that Mr. Lee was a worker or employee, holding that a man could not in effect, employee himself. By stating this statement court refused for the compensation to the Mrs. Lee. However, the Privy Council allowed Mrs. Lee claim by saying following statement;
Mr. Lee was separate person from the company and he had only incorporated the company and therefore compensation was payable to the widow of Mr. Lee

As a company is a separate legal entity so a member of a company can enter into a contract with that company in which he is holding shares the widow of Mr. Lee was entitled to compensation under the workmen’s compensation act.
The director was not restrained from becoming the employee of that very company (Lee vs. Lee Air Farming Ltd.)

Obiter Dictum

The Judicial committee of Privy Council insist that company is a separate legal entity, so that Director could still be under a contract of employment with the company he solely owned. In simple words if he is single owner of the company then also he will be under contract of employment and owner is also employee of company. In opinion separate legal entity is an important features of the company because it separate company identity with its member and separate legal entity is like double sided sword which can be used as good and bad faith. It also act as veil between the company and its member.

Ratio Decidendi

Lee vs. Lee Air Farming Ltd. Case was decided on the basis on principle given in Salmon case. The court gave reasoning during judgement that we can’t avoid point that the Mr. Lee is sole managing director of company and he was controlling all work of the company but then also Mr. Lee and this company they both were separate and distinct legal personality. Because of this two powers Mr. Lee was capable to act as master and servant of the company. This compensation is claimed as the capacity of servant. Because Lee was a separate from the company, he formed and his widow was held to get the compensation.

Conclusion

In conclusion separate legal entity is an important features for companies as it help in separating company identity with its member. So from the above discussion it is concluded that company is a separate legal person. Corporation personality defines company is a separate legal entity and its sole owner, shareholder and director can also be an employee of the company who has entered into a contract with it as owner, director or shareholder. The Separate Entity Principle, in my opinion, it has been very instrumental in promoting the developed of modern capitalism and it has generated immense social and economic wealth. The status of Separate Entity Principle as a cornerstone of Company Law should never be changed.

About the author –

This article is authored by Prabhjot Singh, third year B.B.A. LL.B. (H) student at Galgotias University, Greater Noida.

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ARTICLE 21: A COMPREHENSIVE STUDY

INTRODUCTION

It is a very well known fact that legislature (state and union) has the sole power to make laws. However, the power of making laws is not absolute and is subject to adjudication by the judiciary. While it is very clear that judicial activism has been increased in the 20th century, we can also observe how creative the judiciary has become recently in the case of interpretation of Article 21 in number of ways possible. The term ‘life’ in Article 21 is not the mere animal existence. Article 21 has been interpreted widely by the judiciary so that it may include every other right which makes life of an individual meaningful, complete, dignified and worth living. Some of the elements that are related to Article 21 are discussed separately below-

RIGHT TO LIVELIHOOD

Livelihood includes basic shelter, food and occupation without which it is impossible to live. Right to livelihood emerges out of Right to life and no person can live without the means of living or without the means of livelihood. If the right to livelihood was not considered as an important right arising from right to life, it would be very easy to deprive a person from his right to life by depriving him of his means of living.

But, before the case of Maneka Gandhi , in the case of Re Sant Ram , the Supreme Court held that right to livelihood would not considered under the canopy of right to life under Article 21, Later this judgement was overruled after further interpretation of article 21 and the word ‘life’. In the case of Board of Trustees of Port of Bombay V. Dilip kumar Raghavendra nath Nandkarni and Olga Jellis V Bombay Municipal Corporation , it was held that right to livelihood was an intrinsic part of right to life under Article 21.

RIGHT TO HEALTH AND MEDICAL CARE

A person cannot enjoy his rights if he/she is suffering from health ailments. A healthy body is required as it is the base of all the human activities. In the case of Vincent V. Union of India , the Supreme Court held that healthy body is the very foundation and humans without a healthy body cannot enjoy their rights and cannot live their life with dignity. Under Article 47 of Indian Constitution, the Directive Principles of State Policy provides for improvement of health and prohibition of drugs as the state’s duty

PRISONER’S RIGHTS UNDER ARTICLE 21

There are certain rights under article 21 which are available to the prisoner0s in the view that they must not be deprived of their fundamental rights only because they are convicts of certain crimes. However, they are not allowed to enjoy all the fundamental rights0 like right to move freely in the territory of India. Some of such rights of the prisoners which are protected are as follows :-

A prisoner has the right to free legal aid and right to appeal in higher courts. The free legal aid is provided to the person accused if he is too poor to afford a counsel for his representation. In the case of M.H. Hoskot V. State of Maharashtra, the Supreme Court held free legal aid as important ingredient of fair trial. The prisoner must also be given sufficient time to appeal in the courts. Prisoners, who are in custody and detained or suspicion, have right against custodial violence. Due to lot of custodial deaths and third degree methods. A person’s fundamental right under article 21 is violated and Court has classified them as against human dignity. The Supreme Court , in the case of Attorney General of India V. Lachma Devi , held that a barbaric crime should not be punished with barbaric penalty. Direction for death sentence (public hanging) was held unconstitutional and violative of article 21

CONCLUSION

we can draw the conclusion that before the case of Maneka Gandhi, definition of life and article 21 had been much narrower, like right to education was kept under DPSP and there was no thought given to right to privacy, but the judicial activism plus the judicial creativity led to wider interpretation of article 21 which included every possible perspective of right to life. The Supreme Court has played a very significant role in interpreting article 21 and it is quite possible that we can see certain more dimensions added to word ‘life’ under article 21.

About the author –

This article is authored by Prabhjot Singh, third year B.B.A. LL.B. (H) student at Galgotias University, Greater Noida.

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ALL ABOUT AUDITORS & AUDIT COMMITTEE

Introduction:

An auditor may be a person authorized to review and verify the accuracy of monetary records and make sure that companies suits tax laws. They protect businesses from fraud, means discrepancies in accounting methods and, once in a while , work on a consultancy basis, helping organizations to identify ways to spice up operational efficiency. Auditors add various capacities within different industries.

The Audit committee given here is as per Companies Act, 1956. there’s also requirement for forming Audit committee as per Clause 49 of Listing agreement with Stock exchanges. As per listing agreement, a professional and independent audit committee shall be found out , giving the terms of reference subject to following:

1. The audit committee should have minimum three directors as members. Two thirds of the members of audit committee shall be independent directors.
2. All members of audit committee should be financially literate and a minimum of one member shall have accounting or related financial management expertise.
3. The Chairman of the audit committee should be an independent director The Chairman of the audit committee should be present at AGM to answer share holder queries.
4. the corporate secretary should act as secretary of the committee Besides this audit committee should meet a minimum of fourfold during a year and less than four months should have elapsed between two meetings. The quorum should be either two members or one third of the members of the committee whichever is great er, but there should be minimum of two independent members present.
An audit committee is established by the board of directors of a corporation for the aim of overseeing the financial and accounting processes of the corporate and is monitoring, whether a corporation maintains the financial discipline. Audit committees are established to help the board of directors to discharge their fiduciary responsibilities. “All listed companies should establish an audit committee in raising standards of corporate governance.”

Statutory Rights of Auditors:

1. A right of access in the least times to the books, accounts and vouchers of the corporate.
2. A right to need from the company’s officers such information and explanations as they think necessary for the performance of their duties ad auditors.
3. A right to attend any general meetings of the corporate and to receive all notices of and communications concerning such meetings which any member of the corporate is entitled to receive.
4. A right to be heard at general meetings which they attend on any a part of the business that concerns them as auditors.
5. A right to receive a replica of any written resolution proposed.
6. A right to offer notice in writing requiring that a general meeting be held for the aim of laying the accounts and reports before the corporate.

Duties of an Auditor:

1. To offer a report back to the members on the accounts, books of account, record and profit and loss account examined by him.
2. Where any matter reported upon is answered within the negative or with a qualification the report shall include reasons for such qualification with factual position.
3. To incorporate within the report of the corporate such matters as directed by the Federal Government.
4. To attend those general meetings of a listed company, either himself or through authorized person, during which the record , profit and loss account and therefore the auditors’ report are to be considered:
• To form report for inclusion in prospectus.
• To certify receipts and payments account within the statutory report.
• To form report on declaration of solvency just in case of voluntary completing.
• To exercise due care and skill in completing his duties and make such inquiries as needed.

Auditor’s Liabilities:

The liabilities of auditors of a corporation are often studied under following heads:

1. Civil Liabilities:

Civil liabilities mean the disputes over losses caused to at least one party by acts of another. The civil liabilities of an auditor are often for:-
Liability for Negligence (under law of agency):
Auditor being agent of the Shareholders is required to hold out his duties with due care and skill. If he fails so, he’s susceptible to observe any loss caused to the third party.
Liability for Misfeasance:
The term misfeasance means breach of duty. If auditor does something wrong within the performance of his duties leading to a loss to the corporate , he’s guilty of misfeasance. If auditor doesn’t perform his duties properly and therefore the company suffers loss he’s responsible for misfeasance.

2. Criminal Liabilities:

If auditor makes some false report he are often responsible for an offence of forgery.

Case Laws:

1. Arthur E. Green & Company Vs Central Advance & Discount Corporation Ltd .
It was held that auditor is guilty of negligence. Auditor accepted the schedule of bad debts furnished by the client, though it had been apparent that debts weren’t recoverable.
2. The London Oil Storage Co. Ltd. Vs Sear Hasluck & Co .
In this case, auditors were held responsible for negligence. Auditors did not verify the physical existence of money in hand. Cash balance as per books didn’t accept as true with the physical balance, the difference was misappropriated by the cashier.
3. Irish Woolen Co. Ltd. Vs Tyson and Others .
In this case auditors were held responsible for negligence. Profits were overstated by not recording purchase invoices. He was held responsible for having did not exercise due care and skill
4. Kingston Cotton Mills Co. Ltd .
In this case auditors weren’t held responsible for negligence. it had been held that it’s not the duty of auditors to require stock, if they accept certificate within the absence of any suspicion, he has administered due care and skill.

The Provisions of Sec 292A of the Companies Act, 1956 regarding the Constitution and Functioning of an Audit Committee:

1. Every public co having paid up capital of not but 5 crores of rupees shall constitute a committee of the Board referred to as “Audit committee”.
2. The committee shall constitute of not but three directors of which a minimum of two thirds should be directors aside from Managing and Whole time director.
3. The members of the committee shall elect a md amongst themselves. The chairman should be present at the AGM to supply any clarification on the audit.
4. The auditor, internal auditors, if any, and therefore the director responsible of finance shall participate at the committee meetings but shall haven’t any right to vote.
5. The committee shall have the powers to research into the affairs of the corporate and for this purpose shall have access to records of the co and external professional advice.

Benefits of Audit Committee:

1. Improves the standard of monetary reporting ,by reviewing the financial statements on behalf of the board.
2. Create a climate of discipline and control , which can reduce the chance for fraud.
3. Enable the non-executive directors to contribute an independent judgment and play a positive role.
4. Strengthen the position of the external auditor by providing a channel of communication and forum for problems with concern.
5. Increase public confidence within the credibility and objectivity of monetary statements
6. Strengthen the position of the interior audit function by providing a greater degree of independence from management.

Importance of Audit of Committee:

1. Assets are safeguarded and used for business purposes.
2. Business information is accurate.
3. Employees suits laws and regulations.

Role of Audit Committee:

1. Overseeing financial reporting and audit process.
2. Providing an efficient counterbalance to executive.
3. Uphold the independence of both internal and external auditors.
4. Maintaining accounting statements to offer a real and fair view of organization’s financial position and performance.

Functions and Rights of Audit committee:

1. Towards Shareholders.
2. Towards Board of Directors.
3. Towards internal Auditors.
4. Towards external Auditors.

References:

1. Daniel Libretto, Auditor, Investopedia, (Nov 13, 2020) https://www.investopedia.com/terms/a/auditor.asp
2. Arthur E. Green & Company Vs Central Advance & Discount Corporation Ltd (1920)
3. 4 The London Oil Storage Co. Ltd. Vs Sear Hasluck & Co 1958 34 ITR 43 Cal (India)
4. 5 Irish Woolen Co. Ltd. Vs Tyson and Others [1900] 26 Acct LR 13.
5. Kingston Cotton Mills Co. Ltd (No 2) [1895] 1 Ch 331.

About the Author:-
This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

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LEGAL ASPECTS OF INFRASTRUCTURAL DEVELOPMENT PROGRAM IN INDIA

The legal framework within which the infrastructure sectors operate has been illustrated, in brief, hereunder:

1. Power

• India has taken radical steps towards the restructuring of its Power Sector. The whole legal framework governing this sector has undergone change with the passing of the Electricity Act, 2003 on June 10, 2003. The new Act replaced the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and Electricity Regulatory Commission Act, 1998.
• Private participation has been allowed in Generating Companies and Captive Generating Plants without license. However, activities concerning transmission, distribution and trading of electricity is allowed subject to obtaining license from the acceptable Electricity Regulatory Commission. The License might be procured subject to fulfilment of certain terms and conditions and is valid for 25 years.
• The regulatory functions are delegated to Central Electricity Regulatory Commission, State Electricity Regulatory Commission, Joint Commission and Appellate Tribunal constituted under this Act. There also are monitoring agencies and agencies for governing operational aspects of electricity system.
• 100% Foreign Direct Investment (FDI) is permitted for hydroelectric power plants, coal/lignite based thermal power plants and oil/gas based thermal power plants projects.

2. Airports

• The Government’s Policy on Airport Infrastructure, 1997 contemplates preparation of detailed master plans for the infrastructure and upgradation of all airports by the operating agency in conformation with the standards and recommended practices of the International Civil Aviation Organization. Greenfield Airports projects could also be permitted within the public or private sector or as a venture without the prior approval of the Government. However just in case of other categories of airports regulated by private operators, the approval of Director General of Civil Aviation (DGCA) is required.
• The policy recognizes the importance of personal participation for a sustained development of airport infrastructure. It seeks to realise it by way of corporatisation of the airports with an aim to divest the government holding within the future. The airports might be owned by the Central/State Governments, Public Sector Units, Urban Local bodies, private companies and individuals or through ventures. The management of airports or parts of airports might be on BOT, BOLT, BOO, LDO, joint venture, management contract or wrap around addition basis.
• Establishment of personal airports and leasing out of airports to non-public entities is now permitted subject to prior approval of Central Government. FDI in joint ventures concerning airport infrastructure is permitted up to 74% under automatic route and up to 100% with prior approval. The equity participation could even be made by foreign airport authorities.
• Airports are governed by “Airports Authority of India Act, 1994” , the “Aircraft Act, 1934” and therefore the Aircraft Rules, 1937. The above legislations allow private participation through issuance of license for an airport aside from owned by the Central Government and formation of venture with the AAI.

3. Roads

• National Highways are governed by the “National Highways Act 1956” and therefore the “National Highways Authority of India Act, 1988” . The functions concerning development, maintenance and management of National Highways are administered by National Highways Authority of India.
• FDI up to 100% is permitted in construction and maintenance of roads, highways, toll roads, vehicular tunnels, rail beds, non-vehicular bridges, non-vehicular tunnels, pipelines, ropeways and runways.
• Fiscal incentives include duty free imports, 10 years of corporate tax holiday within 20 years of commissioning the project, exemption on profits of financing institutions, exemption on future capital gains of investors, concession period up to 30 years and toll rates indexed to wholesale Price Level.

4. Water

• The Government of India has massive plans to utilize its large rivers for providing less costly, pollution free and comparatively more efficient method of transportation of water. The National Water Policy, 2002 encourages private sector participation in planning, development and management of water resources projects for diverse uses, wherever feasible.

5. Railways

• Railway transport is roofed within the list of industries reserved for the General Public and is therefore not exempted from industrial licensing requirements. However, several railway components are delicensed. FDI within the railway sector has been allowed with sectoral caps. FDI up to 51% is permitted for manufacture of railway containers utilized in container traffic.

6. Ports

• Both the Central and State Governments have taken several incentives to encourage private investment during this sector through open competitive bidding.
• Ports are governed by “Major Ports Trusts Act, 1963” and amendments thereof. Tax holiday for first 5 years followed by 30% rebate on the earnings within the next 5 years could also be availed within 12 years of the commissioning of the Project.

7. Oil and Natural Gas

• Bio degradable gas is projected to be a critical component of India’s energy market within the near future. In refining sector 100% FDI is allowed under the automated route within the private sector. However, FDI up to 26% is permitted where the venture is with public sector undertaking.
• Disinvestment of state holding within the Oil Sector has further enhanced the scope within the sector.

8. Telecom Sector

• The New Telecom Policy of the Government has brought a revolution within the telecom industry.
• The reforms backed by an outsized statistics of projects continue to verify that infrastructure sector is presently booming in India. An outstanding growth has been projected making it an opportune time to take a positioning d
uring this sector. The process of economic liberalization has entered into third and most critical phase. There could hardly be scope for doubt, when entire nations has started swearing by the economic development in India.
• The Leader is laying foundation; everybody eligible is cordially invited to hitch. The spiritual leader of the nations is evolving itself, this point economically; undeterred faith shall be rewarded, this point with attainment of “economic nirvana”.

References:-

1. The Airports Authority of India Act 1994, IndiaCode https://www.indiacode.nic.in/handle/123456789/1979?view_type=browse&sam_handle=123456789/1362.
2. The Aircraft Act 1934, Legislative Department of India https://legislative.gov.in/sites/default/files/A1934-22_0.pdf.
3. The National Highway Act 1956, IndiaCode https://www.indiacode.nic.in/handle/123456789/1651?view_type=browse&sam_handle=123456789/1362.
4. The National Highways Authority Act 1988, Legislative Department of India https://legislative.gov.in/sites/default/files/A1988-68.pdf.
5. The Major Ports Act 1963, Legislative Department of India https://legislative.gov.in/sites/default/files/A1963-38.pdf

About the Author:-

This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

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THE CITIZENSHIP AMENDMENT BILL & THE OPPOSITION’S OBJECTION

INTRODUCTION:

The bill aims to permit non-Muslim “persecuted minorities” from Bangladesh, Afghanistan and Pakistan. Hindus, Sikhs, Buddhists, Jains, Parsis and Christians to register for Indian citizenship within 7 years of entering India rather than this 12 years. Earlier, the NDA government passed two notifications exempting such immigrants from the “Foreigners Act 1946” and therefore the “Passport (Entry into India) Act 1920”, enabling them to continue living in India if that they had arrived prior to December 31, 2014.

A 16-member Joint Parliamentary Committee visited Assam and Meghalaya in May 2018 to accumulate public feedback on the bill. While a majority of the representations from Brahmaputra Valley opposed the Bill, the Bengali-majority Barak Valley favoured the bill. Out of the memorandums submitted by 135 groups in Guwahati opposing the bill, one was signed in blood. The Meghalaya government, during which the BJP is an ally, also opposed the bill.

Migrants from these communities were earlier given protection against lawful action in years 2015 & 2016. Long Term visa provision for future was made for them. The proposed amendment will make these persecuted migrants eligible to register for citizenship. Citizenship will be given to them only after due scrutiny and recommendation of district authorities and therefore the State Government. The minimum residency period for citizenship is being reduced from existing 12 years under this law to 7 years.

The present Government has taken several measures to implement the Assam Accord. A crucial pillar of “Assam Accord is Clause 6” handling with constitutional, legislative and administrative safeguards for safeguarding of cultural, social and linguistic identity and heritage of Assamese people. Ministry of Housing Affairs has notified on 05-01-2019, a High Level Committee consisting of eminent and knowledgeable persons from Assamese society with a really wide mandate to suggest such measures for safeguarding of the Assamese identity, including reservation within the State Assembly and in jobs. The Committee will submit its report within 6 months.

KEY HIGLIGHTS OF THE CITIZENSHIP (AMENDMENT) BILL:

The Act isn’t confined to the State of Assam, and can be applicable to all or any States and Union Territories of the country.
The beneficiaries of Citizenship Amendment Bill can reside in any state of the country.

The burden of those persecuted migrants are going to be shared by the entire country.

Assam alone wouldn’t need to bear the whole burden and Government of India is committed to offer all help to the State Government and other people of Assam.

The Act will provide relief to persecuted migrants who have come through western borders of the country to States like Gujarat, Rajasthan, Delhi, Madhya Pradesh and other States.

Under the 1955 Act, one among the wants for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months and for 11 of the previous 14 years.

The bill relaxes this 12-year requirement to seven years for persons belonging to the all the six religions from the three countries.
While moving the bill, Singh said that the central government is committed for National Register of Citizens (NRC).

He asserted that there’ll be no discrimination in NRC. He also said that the Central Government has taken several measures to implement the Assam Accord.

The Leader of the Opposition within the house, Mallikarjun Kharge demanded that the bill should be sent to the Select Committee of the House.

The bill was passed within the lower house of the parliament amidst a walkout by number of the opposition members including those of Congress and Trinamool Congress.

NEED OF THE CITIZENSHIP (AMENDMENT) BILL, 2019:

The Citizenship (Amendment) Bill, 2019 aims to impart citizenship to those that had been forced to look for shelter in India due to religious persecution or fear of persecution in their home countries. They’re primarily Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Afghanistan, Pakistan and Bangladesh. This is often a drastic change from the provisions of the Citizenship Act of 1955 that label an individual an “illegal immigrant” if he or she has entered India without travel documents or has overstayed the date mentioned in the documents.

IMPORTANT PROVISIONS OF THE CITIZENSHIP (AMENDMENT) BILL:

1. The Bill amends the Citizenship Act, 1955 to form illegal migrants from communities like Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan who entered India before December 31, eligible for Indian citizenship.

2. Under the Act, one among the wants for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 12-year requirement to seven years for persons belonging to an equivalent six religions and three countries.

3. The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders could also be cancelled if they violate any law.

IS THE BILL CONTROVERSIAL?

The citizenship amendment bill, which has gone by the Lok Sabha, has led to political backlash in Assam and caused unrest within the remainder of the North-east, with protests by ethnic Assamese groups. Assamese organizations say that as a results of the bill the burden of illegal migrants are going to be passed on to the state alone. The bill drew flak from opposition parties within the Rajya Sabha for excluding Muslims from countries like Nepal and Sri Lanka. These parties are likely to push for the citizenship amendment bill to be mentioned to a select committee before it’s discussed within the Rajya Sabha.

THE SAY OF OPPOSITION:

The opposition has been opposing the bill’s passing, because it would grant citizenship to the illegal Hindu migrants from Bangladesh, who came to Assam after March 1971, violating the “Assam Accord, 1985”.

Further, the Bill makes illegal migrants eligible for citizenship on the perspective of religion. It provides citizenship to Hindu, Sikh, Buddhist, Jain, Parsi or Christian migrants from Afghanistan, Bangladesh and Pakistan.

However, it excludes Muslim sects like Shias and Ahmediyas, who face persecution in Pakistan. This might violate “Article 14 of the Constitution” which guarantees right to equality.

It also allows cancellation of OCI registration for violation of any law. This is often a good ground which will cover a variety of violations, including minor offences like parking in a no parking lot.

THE SAY OF CENTRAL GOVERNMENT:

The centre says the amendment is for migrants who came through the eastern and western borders and are staying in India. The burden are going to be shared by the whole country, with the centre willing to assist to implement it.

IS THE AMENDMNET BILL AN ELECTORAL SOP?

The Trinamool Congress accused the Bhartiya Janata Party (BJP) of being “anti-Bengali” after the ultimate draft NRC was published in July 2018. To counter the allegation, BJP has decided to mention the bill in its Lok Sabha poll campaign in West Bengal to garner support from Hindu refugees, who came to the state from Bangladesh. The centre is additionally trying to woo the ethnic Assamese by promising to seem into the Assam Accord of 1985 to make sure that their linguistic and cultural identity are going to be safeguarded.

NATIONAL REGISTER OF CITIZENS (NRC):

NRC was updated under the Citizenship Act to wean out illegal immigrants from Bangladesh and other countries. The collective list of the NRC data of 1951 and therefore the electoral rolls till 24 March 1971 is being analysed to update NRC. The amendment paves the way for non-Muslim minorities who came to Assam from Bangladesh between 1 January 1966 and 24 March 1974 to urge citizenship. This negates the NRC exercise, say ethnic Assamese groups and regional parties.

WHY ASSAM OPPOSES THE CITIZENSHIP (AMENDMENT) BILL?

The bill is being opposed by majority groups in Assam, as all of them believe that if the Bill becomes an Act, it’ll nullify the updated National Registration of Citizenship (NRC) of Assam. The method of updating the NRC is currently underway in Assam. The National Register of Citizens (NRC) is a record that contains names of Indian citizens of Assam. It had been last prepared after Census in 1951.Assam, which had faced an influx of persons from Bangladesh since the initial 20th century, is that the only state having an NRC.

The Assam government on July 30, 2018 released the second and final draft of the state’s National Register of Citizens (NRC). The draft includes the names of Indian citizens who are residing in Assam before March 25, 1971.

As per the Draft, the entire number of persons included within the list is 2,89,83,677 leaving a complete of 40,70,707 as ineligible for inclusion. Out of 40,70,707 names, 37,59,630 names are rejected and 2,48,077 names are kept on hold.

The NRC doesn’t distinguish migrants on the perspective of religion. It involves the deportation of all those that entered the state illegally post March 24, 1971, regardless of their religion.

References:
1. The Foreigners Act 1946, The Legislative Department https://legislative.gov.in/sites/default/files/A1946-31.pdf .
2. The Passport (Entry to India) Act 1920 , IndiaCode https://www.indiacode.nic.in/handle/123456789/2370?view_type=browse&sam_handle=123456789/1362.
3. Constitutional, Legislative & Administrative Safeguards, Assam Accord 1985, Government of Assam https://assamaccord.assam.gov.in/portlets/assam-accord-and-its-clauses
4. Assam Accord 1985, Government of Assam https://assamaccord.assam.gov.in/portlets/assam-accord-and-its-clauses
Equality Before Law, Constitution of India 1950,
5.https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2014

About the Author:-

This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

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INTRODUCTION TO MUSLIM LAW

Origination of Muslim Law:

In India, every religious community in personal business is governed by its own laws. Even as the Hindus, the Christians, the Parsis and therefore the Jews are governed by their own personal laws, so are the Muslims. The Hindus and therefore the Muslims have, all along, claimed that their laws are of divine origin. However, in Hindu law it’s been a longtime proposition that a legitimate custom overrides the sacred law. Custom has never been a crucial aspect of Muslim law, although, at just one occasion , the council held in the view that a legitimate custom overrode Muslim law. All aspects of the lifetime of a private law were regulated by it. When the Muslims ruled the country, most areas of Hindu law, except the Hindu personal law, were superseded.

Every religious community was allowed to retain its personal law in personal business. In India, whenever personal business precede a court of law, the primary question that arises is: Which law applies to the parties to litigation? If the parties are Hindus, Hindu law will apply; then on.

Since here we are concerned with the question of application of Muslim law, we might answer that question under Muslim law. In modern India, Muslim law means portion of shariah which governs the Indian Muslims in their personal business . Since Muslim law applies to the Muslims alone, we’ve to define who may be a Muslim. In modern Hindu law, the term “Hindu” has not been defined strictly in terms of faith , whereas the term “Muslim” in Muslim law has always been defined in terms of faith , albeit the orthodoxy or heterodoxy of belief is not any concern of the courts.

For Prevailing Muslim Law, The Muslims fall under the following two categories:

Muslims by origin.
Muslims by conversion.
Muslims by conversion could also be further divided into the subsequent categories:
Muslims who profess Islam.
Muslims who undergo formal conversion.

Muslim by Origin:

No person can be a Muslim who does not subscribe to the basic tenet of the Islam. A person, who subscribes the basic tenets of Islam, is a Muslim. The basic tenets of Islam are the following two:

a) The principle of the unity of God, i.e., God is one i.e. Allah.
b) Muhammad is the Prophet of God. Prophet Mohammed is the messenger of God.

According to Islamic theology, other essential beliefs of a Muslim are : the holy book, the Quran, is the only revealed book of Allah, Hazrat Muhammad was the last rasul (prophet), and there is a day of judgment (Keyamat) followed by life after death (Akhirat).
A person, who subscribes to the basic tenets of Islam, will be a Muslim by origin if it is not established that he is a convert to Islam. Conversely, a person will not become a Muslim just because he calls himself a Muslim, or is considered by others a Muslim. To this category of Muslims, Muslim personal law applies in its totality and no rule of Muslim law can be modified by custom

Muslim by Conversion:

A non-Muslim may become a Muslim by professing Islam, i.e., by acknowledging that there’s just one God and Muhammad is his prophet, or by undergoing the ceremonies of conversion to Islam.

Till 1937, it had been possible for a convert to be continued to be governed by his personal law, including customary law. After the approaching into force of the Shariat Act, 1937[1], the generality of that statement stands modified, though, it’s submitted the appliance of custom to the Muslims has not been totally repudiated.

a)Muslim who Profess Islam:

A non-Muslim may become a Muslim by professing Islam.

“Profession with or without conversion is important and sufficient to get rid of the incapacity of getting another religion”. Thus, observed Lord McNaughton in Abdul Razak v. Aga Mahommed Jaffer Bindanim[2] during this case, a wealthy Muslim, Abdul by name, had died, apparently, with none heir.

But, one Abdul Razak made a claim to his estate on the plea that he was the son of the pre-deceased brother of Abdul. The brother of Abdul had married a Burmese woman, a Buddhist by religion, but it had been not established that she had been converted to Islam either before, or after, the wedding .

It was established that she was to recite the Muslim prayers. The court came to the conclusion that, since the wedding of Abdul’s brother with the Buddhist woman was void under Muslim law, Abdul Razak, though a Muslim couldn’t succeed to Abdul’s estate, being a bastard .
The converse situation arose in Reshma Bibi v. Khuda Baksha[3], where a Muslim wife, with a view to ending an unhappy marriage, renounced Islam, and prayed to the court that Muslim law of apostasy should be applied to her, and her marriage should be deemed to possess been automatically dissolved from the date of her recantation.

Curiously enough, the District Judge Ordered a plate of pork to be brought within the court room, and therefore the wife was asked to eat it. On her refusal, the court concluded that her apostasy was insincere.

Accepting the appeal, the appeals court observed: “One may relinquish a faith which is a simple thing try to do , but one might not acquire liking for those things which one has been taught to detest throughout one’s living”. The court accepted the wife’s statement that she not believed in Allah, in Muhammed as her Prophet and within the Quran, and thus ceased to profess Islam.

The court then said: “a person’s religion isn’t a tangible thing which may be seen or touched. it’s the mental condition of one’s believing in certain articles of religion that constitutes one’s religion and if one ceases to believe them, which again may be a mere mental condition, one automatically ceases to profess that religion”.

In this case, D. Mohammad. remarked that the motive of the declarer was also immaterial; an individual might renounce his faith for love or avarice; one might do so to urge obviate his present commitments or truly to hunt salvation elsewhere, but that might not affect the factum of change of religion . And, in matters like these, it had been the factum alone that matters and not the latent spring of action which resulted there from.

Whether mere profession of Islam is sufficient to form a non-Muslim a Muslim isn’t entirely free from doubt. it’s true, as Lord McNaughton had stated, no court of law can test or gauge the sincerity of spiritual belief.

In all cases where, consistent with Muslim law, unbelief, or difference of creed, may be a bar to marriage with a real believer, it’s enough if the alien in religion embraces Islam prophecy. It’s submitted that a non-Muslim will become a Muslim by professing Islam, as long as it’s not Colorable or mala fide or made with a view to perpetrating fraud upon law.

b)Muslims who undergo Formal Conversion:

It appears to be a well-established proposition of law that a non-Muslim. An individual seeking conversion to Islam may attend a Muslim mosque. On the completion of the recitation of the Kalma, the conversion ceremony is over, and therefore the non-Muslim becomes a Muslim.

In most of the mosques, a register is kept during which the name of the person embracing Islam is entered and therefore the convert puts his signature thereto.

Conversion of a Muslim from one sect to a different doesn’t amount to apostasy, and an individual changing from- one sect to a different continues to be a Muslim.

The genuineness of belief within the new faith is immaterial, and even when a convert doesn’t practice the new faith, he will still be a Muslim. But it’s necessary that the conversion should be real , honest, and will not be colorable, pretended or dishonest.

In the case, Skinner v. Orde[4], a Christian woman was living with a married Christian man. With a view to legalizing their cohabitation as husband and wife, both of them underwent a ceremony of conversion to Islam. After the conversion, they got married.

Later on, when the question of validity of this marriage arose, the council held that the wedding was null and void on the bottom that conversion wasn’t real . Moreover, it had been a fraud upon the law, since the parties underwent the ceremony of conversion with a view to eluding their personal law.

The question of Colorable, fraudulent and dishonest conversion has come up before the Indian High Courts during a number of cases, where a non-Muslim has embraced Islam, either to say divorce on the bottom of apostasy, or to enter into a polygamous marriage.

Thus, within the matter of Ram Kumari v. Unknown[5], a Hindu wife adopted Islam, and assuming that this meant automatic dissolution of her marriage, took a second husband. She was prosecuted and convicted for bigamy.

In Rakeya Bibi v. Anil Kumar Mukherjee[6], this aspect of the matter has been very cogently and brilliantly discussed by Chakravarti, J. during this case, a married Hindu woman, with a view to getting obviate her impotent husband, embraced Islam, and sought to a declaration that on her conversion to Islam, her Hindu marriage stood disintegrated.

Observing that the question whether conversion was real or merely a tool for terminating the wedding , was vital , the learned judge said: “it could also be that a court of law cannot test or gauge the sincerity of spiritual belief, or that, where there’s no doubt of genuineness of a person’s belief during a certain religion, a court cannot measure its depth or determine whether it’s an intelligent conversion or an ignorant desire.

But a court can and does find truth intention of men lying behind their acts and may certainly determine from the circumstances of a case whether a pretended conversion was really a way to some further end Indeed, it seems to us to be elementary that if a conversion isn’t inspired by religious feelings and undergone for its own sake, but is resorted to merely with the thing of making a ground for a few claim of right, a court of law cannot recognize it as an honest basis for such claim, but must hold that no lawful foundation of the claim has been proved legitimate.

When conversion gives a right through a mock conversion and found out as basis of that right is to commit fraud upon the law. We are clearly of opinion that where a celebration puts forward his conversion to a replacement faith as creating a right in his prefer to the unfairness of another, it’s proper and necessary for a court of law to inquire and determine whether the conversion was a real one”.
The court found that conversion is not real , since the mind of the convert, the unhappiness caused by her husband’s impotence and conversion to Islam as a way to flee from that unhappiness were associated.

References:

1. Muslim Personal Law (Shariat) Act, 1937 India Code https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf
2. Abdul Razak v. Aga Mahomed Jaffer Bindanim (1893) I.L.R. 21 Cal. 666 (India)
3. Reshma Bibi v Khuda Baksh AIR 1938 Lah 483 (India)
4. Skinner vs Orde And Ors. (1875) ILR 1 All 230 (India)
5. Ram Kumari v. Unknown (1891) ILR 18 Cal 264 (India)
6. Rakeya Bibi v. Anil Kumar Mukherjee ILR 1948 (2) CAL 119 (India)

About the Author:-

This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

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OMBUDSMAN: A WATCHDOG FOR ADMINISTRATION IN INDIA

Ombudsman is a public officer who acts independently and non-partially and his function is to supervise the administration. For a nation to develop, the administrative side of the nation has to function properly and efficiently and it has to be ensured that there is no corruption in the sphere of administration, because corruption is the biggest hinderance in the development of any nation. In India, the role is played by Lokpal in the centre and the Lokyuktas in the state level.

Mainly the public are the victim of administrative and political corruption. For the redemption of grievances and removal of corruption. The common man has to rely upon the bureaucracy which itself is the enemy complained against.

A strong voice was raised for establishment of machinery which can redeem grievances of people against administration. During the past few decades, countries have adopted different devices and procedures to improve administrative accountability on the public servant.

There was timelines of efforts to establish Lokpal in India. From 1968 to 2011, the Lokpal bill was introduced in parliament for eight times but it was not passed. In 2002, the commission to review the working of the constitution recommended the appointment of the Lokpal and Lokyukta, and also recommended that the PM should be kept out of the ambit of the authority. Again in 2011, introduced in Lok sabha but could not be passed in Rajya sabha. The Lokpal and Lokyuktas Act,2013 seeks to provide for the establishment of Lokpal for the Union and Lokyuktas for states to inquire into allegations of corruption against certain public functionaries and for election purpose. The act mandates for creation of Lokpal for union and Lokyuktas states.

Lokpal is a is a multimember body, made up of one chairperson and maximum of 8 members. The person who is to be appointed as the Chairperson of Lokpal should be either of the following: A CJI or a former judge of Supreme Court. Many ombudsman work to a brief which goes beyond more narrow definitions of maladministration.

Parliamentary ombudsman is responsible for supervision of specific areas of administrative activity or for protecting the interests of specific groups for example as regards the police, correctional institutions, military services, data protection or protection of the disabled/incapacitated. Statutory ombudsman is responsible for scrutinising centrally regulated but essentially commercial activities for example legal or financial services or with expect to save nature. The rapporteur believes that the ombudsman can play a valuable supplementary role in receiving information to resort to an internal procedures which could either be ineffective or otherwise reasonable for example endemic corruption of Administration of India.

References:
1. https://www.ijsr.net/get_abstract.php?paper_id=ART2018600#:~:text=Ombudsman%20is%20a%20public%20officer,against%20administrative%20injustice%20and%20maladministration.
2. https://www.lawcolumn.in/ombudsman-the-administrative-watchdog/
3. http://www.legalserviceindia.com/legal/article-103-study-of-ambudsman.html
4. https://thefactfactor.com/facts/law/civil_law/administrative-law/ombudsman/4268/
5. https://www.srdlawnotes.com/2018/11/what-is-ombudsman-origin.html

About the Author:-

This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

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Enforcement of Foreign Judgments in India

Provisions under CPC on Foreign Courts & Foreign Judgements:

1. “Foreign Court means a Court situate outside India and not established or continued by the authority of the Central Government” .

2. “Foreign Judgment means the judgment of a foreign Court” .

3. “When foreign judgment not conclusive:

∙ Where it’s not been pronounced by a Court of competent jurisdiction.
∙ Where it’s not been given on the merits of the case.
∙ Where it appears on the face of the proceedings to be founded on an incorrect view of law of nations or a refusal to acknowledge the law of India in cases during which law is applicable.
∙ Where the proceedings during which the judgment was obtained are against the natural justice.
∙ Where it’s been obtained by fraud.
∙ Where it sustains a claim founded on a breach of any law effective in India” .

4. “Presumptions on foreign judgments: The Court shall presume, upon the assembly of any document purporting to be a licensed copy of a foreign/international judgment, that such judgment was pronounced by a Court to competent jurisdiction, unless the contrary appears on the record; but such presumption could also be displaced by proving want of jurisdiction” .

5. “Execution of decrees gone by Revenue Courts in places to which this Code doesn’t extend: The Government of State may, by notification within the Official Gazette, declare that the decrees of any Revenue Court in any territory of India of which the provisions of this Code don’t extend, or any class of such decrees, could also be executed within the State as if they had been executed by the courts in therein State” .

6. “Execution of decrees executed by Courts in reciprocating territory:

∙ Where a licensed copy of a decree of any of the superior courts of any reciprocating territory has been filed within a District Court, the decree could also be executed in India as if it had been executed by the District Court.
∙ Alongside with the certified copy of the decree shall be filed a certificate from such court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the needs of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
∙ “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification within the Official Gazette, declare to be a reciprocating territory for the needs of this section.
∙ “Superior Courts” with regards to any such territory, means such courts as could also be laid out in the said notification.
∙ “Decree” with regard to a Court means any decree or judgment of such court under which a sum of monetary transactions is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, albeit such an compensation is enforceable as a decree or judgment” .

References:
1. Civil Procedure Code 1908, Sec 2(5).
2. Civil Procedure Code 1908, Sec 2(6).
3. Civil Procedure Code 1908, Sec 13.
4. Civil Procedure Code 1908, Sec 14
5. Civil Procedure Code 1908, Sec 44.
6. Civil Procedure Code 1908, Sec 44A.

About the Author:-

This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

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ANALYSIS OF SECONDARY RULES: INTERPRETATION OF STATUTES

Secondary Rules of Interpretation
The rules or maxims or concepts that come under this category of rules of interpretation are generally considered as “Secondary” or “Subordinate” principles of interpretation. The most important threat for court while interpreting statute in to find the “intention of the legislature. Maxims help to elaborate the meaning of individual words and phrases by drawing certain consequences.
I. Noscitur a Sociis principle
Where the scope of a word which has a wider meaning is limited by referring to the context of the word. This is a situation where a meaning is given to a word by looking at its “context”. One of the main reasons for the application of this principle is because a word of a wide possible meaning may be given a limited meaning by looking at the context in which it appears.
Prior v Sherwood [1]
The court held that a prohibition against betting in any “house, office room or place” did not extend to public lane. The possible wide meaning that could have been given to the word “place” was limited by its use in conjunction with “house, office, and room”, which the court considered to be an enclosed or definable concept.
What is meant by the word “context”?
It means that if there are several words used in a sentence and you wish to find a meaning of a word which is ambiguous the meaning of that word could be arrived at by looking at the other words surrounding that word.
Rex v Harris[2]
• There was a section in a particular statute which made it an offence to “shoot at or to stab, cut or wound any person”.
• When interpreting the word “wound” is restricted by the words which proceeded it because those specific words involving the using of any instrument or weapon to inflict the wound. Consequently, it was the view of the court that the biting of a finger or a nose or the burning of a face was considered not to be words “wound” coming within the meaning of that section.
Commissioner v Savoy Hotel [3]
A provision of a statute which uses the words “manufactured beverages including fruit juices and bottle water and syrups”. The court observed that the distinction of “fruit juices should be construed of in the context of the preceding words and that orange juice unsweetened and freshly pressed was not within the description.
Indian case
• A provision of a statute read “Commercial establishment means an establishment which carried on any business trade or profession”.
• The word “Profession” was construed with the associated words “business” and “trade” and it was held that a private dispensary of a doctor would not come within the definition.
Criticisms
USA SC
• This rule is not a master of the courts but merely its servant to ascertain the legislature’s intention
• This affords a mere suggestion to the judicial mind.
• Thus, where the intention of the legislature is plain the noscitur principle must give away.
R v Commissioner of Taxes
• The noscitur principle must be applied with caution.
• In the case of most rules of interpretation is only of assistance when there is an ambiguity to the language.
II. Utres magis valeat quam pereat
It is better for a thing to have effect than to made void.
• This means that the courts try to ensure the validity of a statute rather than making it futile or redundant.
• Where the words of a statute are capable of 2 different interpretations, courts must give effect to the interpretation which results in the smooth functioning of the statute and best achieves the legislative establishments.
Manchester Ship Company v Manchester Race Course Company [4]
It was held that unless the words in the statute were absolutely senseless, the judge must find some meaning to the words and should not simply declare it to be void for uncertainty.
Viscount Symons in Nokes v Don Caster Amulgated Ltd [5]
We should void a construction which would reduce the Act to futility and should rather accept the boarder construction based on the view that parliament would legislate only for the purpose of bringing about an effective result.
Nandasena v Senanayaka [6]
• The paddy Land Act 1958 repealed by the 1973 Act.
• The question that arose was as to what will happen to those cases which were held in the Magistrate court under the 1958 Act but which had not been concluded on the date of the commencement of the new legislation.
• It was argued that those cases pending before the MC would laps.
• But Sharvananda J refused to accept this argument applying this Maxim and said such an approach would make the new law one without effect.
Hede Navigation Case [7]
Even if there was an ambiguity that interpretation should be preferred which gives effect to the statute rather than create a lacuna in the law.
Exception
Maloney v Metropolitian Police Commission [8]
Held the maxim therefore ought not be applied when its application having concerns to the subject matter to which it is to be applied leads to inconsistency or injustice.
III. Ejusdem Generis principle
This principle is an example of the application of the Noscitur principle. This is where the general words will derive its meaning from the particular and specific words of the same kind or same nature. Since general words can take a broader meaning, it is confined to embrace only things or conduct falling within that category.
Example: –
Animals which may be carried on a ferry there was a reference to “horses, cows, sheep and other animals. Therefore, the word “OTHER ANIMALS” is limited to apply to animals of the same kind as those specifically mentioned, and will not include any other genre of animal such as a lion or a tiger.
Case of Amarachandra [9]
It laid down certain criteria for the application of this principle:
• The section must contain an enumeration (list) of specific words.
• The subject matter of the enumeration should have a class.
• The class is not exhaustive.
• The general term follows the specific enumeration
• There is no different legislative intention.
USA case
THE SC observed that this rule is not a ‘master of the courts’ by merely its servant in order to ascertain the legislature’s intention.
Parker – in the phrase ‘building or other operation’ the word ‘other operation’ should be read as similar to ‘buildings.
However, in certain cases a limited approach of the principle is noticeable.
Quazi v Quazi [10]
In the phrase ‘judicial or other proceedings’ the word ‘other proceedings’ were not confined to judicial proceedings.
AG v Brown [11]
The principle cannot be applied where the application of the principle would produce a result contrary to the legal meaning intended by the parliament.
Madhya Pradesh Electrical Board
If a genus cannot be found the principle cannot be applied.
Criticism
Australian judged emphasized that the use of this principle is very limited. Denvish emphases that – this principle is a useful aid of construction must be applied with caution the more important thing being to give effect to Parliament’s intention so that the application of this rule should be discouraged where the parliament’s intention appears not clear and ambiguous.
IV. Expressio Unius Est Exclusio Alterius
The express mention of one person or a thing is the exclusion of another.
• In an old English statute. (The Poor Relief Act 1601), Section 1 provided that every occupier of lands, houses, coal mines or saleable under wood should be rated for the relief of the poor, it was decided by the HOL that as “coal mines” alone were mentioned in the Act as being rateable “iron mines” are not included.
• In yet another English case decided in 1855 an Act imposed a rate on houses, buildings, works and tenants but exempted land it was construed to mean land without buildings, houses or workers upon it.
Rex v Sec of State for the Home Dep
Section 2 (3) of Immigration Act stated the word ‘parent’ means the mother of an illegitimate child, by implication excluded the father.
In some occasions the legislature may have included a specific reference to a certain subject matter with the intention of limiting the scope of the statute to those matters only for example;
A hypothetical situation would be “candidates for the Commissioner General post should be of age 50 with a university qualification, this denotes the fact that not only would the eligibility criteria be attainment of the required age, but specific reference is endorsed by the legislature in regards to the qualification.
In light of the above example, this maxim can be used as a guiding hand rather than a product on its own.
However, this maxim will have to be applied with extreme caution and should not be used in situations such as:
• In the intention of the legislature did not mean that the express mention of one thing should operate to exclude all others, if so, the principle should not be applied.
• Where the statutory language is plain and the meaning is clear.
The maxim should only be used to ascertain the legislative intent. This is not a rule of law but only a rule of construction.

References:
1.1 [1906] HCA 29 – 3 CLR 1054; 12 ALR 510
2 (1836) 7 C & P 446
3 1995 211 ITR 192 Cal
4 [1904] 2 Ch. 352
5 (1940) AC 1014
6 (1981) 1 S. L. R.
7 1996 (5) Bom CR 669
8 [1979] Ch 344
9 1972 AIR 1863, 1973 SCR (1) 533
10 [1979] UKHL J1122-1
11 178 L. Ed. 2d 389; 2010 U.S. 79 U.S.L.W. 3269

About the Author:-

This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.