Some recent landmark decisions

For the benefit of our readers and also to catch-up the recent developments, we are running in this post short notes on some of the landmark decisions in recent past. These decisions are landmark on various counts; either they reveal a jurisprudence shift or they deal with a legal controversy which was vividly followed up by national media and the citizens alike. Some are landmark on account of the sheer fact of these decisions being rendered by larger bench of the Supreme Court and thus an important and likely stable constitutional declaration flows from these decisions.

Constitution Bench decisions

1. This series of two decisions is actually a revisit of the constitutional stipulations relating to appointment of judges amongst the High Courts and the Supreme Court. The law was firmly settled by earlier larger bench decisions. However the incumbent Government initiated the process which led to amendment of the Constitution. This amendment was meant to bring in place a new positive legal order regarding the appointment process. In the first decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.10.2015], a five-judges bench of the Supreme Court declared the amendment to the illegal being contrary to the basic constitutional principles. In essence, therefore, they revived the appointment process in place prior to this arrangement known as the 'Collegium'. However in this decision itself the judges agreed that there was room for improvement in the Collegium system and this led to the second decision. In this decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.12.2015] the same five-judges of the Supreme Court broadly examined the suggestions received from various quarters towards improving the Collegium system, only to conclude that it was beyond the judicial realm to lay down the policy. On such account it directed the Government of India to frame 'Memorandum of Procedures' which would serve as the Working Document and lay down the protocol for the appointment of the judges. These decisions are landmark in various senses. Firstly they are by constitutional benches and thus carry significant weight. Secondly, there is a significant discussion on the 'basic structure principle' and also the importance of 'judicial review' and 'independence of judiciary', which are key constitutional tenets. Thirdly and more importantly, it is rare for the Supreme Court to declare as illegal a constitutional amendment and thus these decisions carry significant insight on the subject. 

 

 

2. The decision of another five-judges bench of the Supreme Court in Nabam Rebia v. Deputy Speaker [Civil Appeal No. 6203-6204/2016 decision dated 13.07.2016] is another significant decision for it delineates the scope and ambit of the powers vested in a Governor of a State under the Constitution. In this decision the Court was examining the allegations that the Governor did not adopt a bipartisan role which was expected of him and instead went beyond the scope of authority conferred upon him. In fact in this decision the Supreme Court reinstated the exective Government which had not found favour amongst the stipulations of the Government, which makes it perhaps an unprecedented decision on large counts. The case also involved the relationship between the Government and Speaker of a Legislative Assembly and how far could the Governor direct the Speaker to carry out specified functions. 

 

 3. Another decision, also of five-judges of the Supreme Court is in the case of Union of India v. V. Sriharan Writ Petition (Criminal) No. 185/2014 decision dated 02.12.2015] which dilutes a number of decisions on the subject as also the common understanding to declare that a life sentence means imprisonment till the end of life. There was a common understanding that life sentence means 14 years. However the Court has declared otherwise and held that the power of the Government to remit sentence after 14 years is not a matter of right but only a possibility for early release. This decision also declares that the Court has power to give a fixed sentence (say 20 years) to a person without any possibility of early release.

Some other decisions, but not of constitution benches of Supreme Court

4.  This decision in Kedar Nath Yadav v. State of West Bengal [Civil Appeal No. 8438/2016] runs into over 200 pages and relates to validity of land acquisition in West Bengal relating to Tata Nano plant. Dealing with a very emotive issue for the local residents and also a politically sensitive matter for the incumbent government, the Supreme Court has dealt extensively with land acquisition laws and the interse considerations required to be considered for upholding acquisition of land. In conclusion the Supreme Court has directed that "land shall be given back to the land owners and compensation if any paid to them shall not be recovered from them those who have not collected it are free to collect the same in lieu of damages for deprivation of possession for ten years".


5.  Additionally, another Supreme Court decision is the case of Shreya Singhal v. Union fo India [Writ Petition (Criminal) No. 167 of 2012, decision dated 24.03.2015] where certain provisions of the Information Technology Act, 2000 has been declared as unconstitutional and illegal for they are impediment to freedom of speech and expression guaranteed by the Constitution to its citizens. This decision renders interesting insights, also on a comparative legal analysis perspective, the various dimensions of free-speech jurisprudence and its ambit under the Constitution of India. A must read for students.


6. In a very recent decision in Chandrakeshwar Prasad v. State of Bihar [Criminal Appeal No. 932 of 2016, decision dated 30.09.2016] the Supreme Court has cancelled the bail granted by the High Court to Md. Shahabuddin. This decision presents interesting insights over the competing considerations between personal liberty of an individual and the larger societal interests. Referring to its earlier decisions on the subject, the Supreme Court held that it was important to balance the "fundamental right to individual liberty with the interest of the society".


7. While this is not a decision, this nonetheless has severe ramifications for the future of Supreme Court. In V. Vasanthakumar v. H.C. Bhatia [Writ Petition (Civil) No. 36 of 2016 order dated 13.07.2016] three judges of the Supreme Court have referred to a larger bench adjudication of certain constitutional questions, which are as under;

1. With access to justice being a fundamental right, would the said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court?
2. Would the mere increase in the number of judges be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible?
3. Would the division of the Supreme Court into a Constitutional wing and an appellate wing be an answer to the problem?
4. Would the fact that the Supreme Court of India is situate in the far North, in Delhi, rendering travel from the Southern states and some other states in India, unduly long and expensive, be a deterrent to real access to justice?
5. Would the Supreme Court sitting in benches in different parts of India be an answer to the last mentioned problem?
6. Has the Supreme Court of India been exercising jurisdiction as an ordinary court of appeal on facts and law, in regard to routine cases of every description?
7. Is the huge pendency of cases in the Supreme Court, caused by the Court not restricting its consideration, as in the case of the Apex Courts of other countries, to Constitutional issues, questions of national importance, differences of opinion between different High Courts, death sentence cases and matters entrusted to the Supreme Court by express provisions of the Constitution?
8. Is there a need for having Courts of Appeal, with exclusive jurisdiction to hear and finally decide the vast proportion of the routine cases, as well as Article 32 petitions now being decided by the Supreme Court of India, especially when a considerable proportion of the four million cases pending before the High Court may require review by a higher intermediate court, as these judgments of the High Courts may fail to satisfy the standards of justice and competence expected from a superior court?
9. If four regional Courts of Appeal are established, in the Northern, Southern, Eastern and Western regions of the Country, each manned by, say, fifteen judges, elevated or appointed to each Court by the Collegium, would this not satisfy the requirement of ‘access to justice’ to all litigants from every part of the country?
10. As any such proposal would need an amendment to the Constitution, would the theory of ‘basic structure’ of the Constitution be violated, if in fact, such division of exclusive jurisdiction between the Supreme Court and the Courts of Appeal, enhances the efficacy of the justice delivery system without affecting the independence of the judicial wing of the State?
11. In view of cases pending in the Supreme Court of India on average for about 5 years, in the High Courts again for about 8 years, and anywhere between 5- 10 years in the Trial Courts on the average, would it not be part of the responsibility and duty of the Supreme Court of India to examine through a Constitution Bench, the issue of divesting the Supreme Court of about 80% of the pendency of cases of a routine nature, to recommend to Government, its opinion on the proposal for establishing four Courts of Appeal, so that the Supreme Court with about 2500 cases a year instead of about 60000, may regain its true status as a Constitutional Court?

8. And then in this series, we refer to the decision of the Delhi High Court in Government of National Capital Territory of Delhi v. Union of India [Writ Petition (Civil) No. 5888/2015 decision dated 04.08.2016] where the High Court has opined upon the interse powers of the Government of India and the Government of NCT of Delhi. Running into about 200 pages, this decision relied upon a nine-judge Supreme Court decision in New Delhi Municipal Corporation v. State of Punjab (1997) 7 SCC 339 to hold that Delhi continues to be Union Territory, albeit with special status, but does not enjoy statehood. This decision opines upon a long pending political struggle in Delhi and may not be the last word on the subject as the Supreme Court is currently seized of the dispute. Nonetheless various interesting aspects relating to the special position of Delhi and its legal attributes.

Law Makers (Law Series - 5)

Well there has been quiet some time that I wrote the last post in this series and then inner guilt made be come back to it. So here goes.

Law makers are the creepiest bunch in the legal system all together. We as those selecting the law makers are always skeptical about them and then we do not really have a choice. For in a democracy, law makers are people whom the citizens choose from amongst themselves through elections and give them a fixed term to legislate. In other versions of polity, say kingship, the King appoints as his council people he thinks wise and smart enough to understand the problems and perceptions of his subjects and make laws to deal with the same. Nonetheless, since these days there hardly remain any significant number of such political structures in the world and democracy is here to stay, I would deal with democratic institutions in the later parts of the post.

To begin with, we need to dealienate the role and place of the institutions coming into play. As any political scientist would put it, the legislature, judiciary and the executive, the three wings of the State. But why do I put judiciary first before executive when generally its the other way round. Because, ... because of their identification on the basis of the functions they perform. According to May (not the calender year but the name of a famous legal historian, ever heard of May's Treatise on Parliamentary Privileges), Legislature is that part of the State which performs the role of laying down rules to be enforced and complied by the citizens. Judiciary is one which is there to resolve the disputes amongst the citizens as well amongst the institutions. All the remaining functionaries of State are classified as the Executive. So technically even the Election Commission of India would be categorized as a part of State Executive, though a political scientist would frown over it.

So we have an institution which performs the role of laying down rules, or laws as I have put them in my earlier posts. [click here for what is law, why law] These laws are binding on the citizens for various reasons. Firstly because under the Constitution they have agreed to abide by and follow the laws in word and spirit. Second because these laws are a manifestation of the popular will (or 'General Will' as Rousseau puts it) as legislature represents the majority of the people and therefore what they say is considered to be coming from the people for themselves.


The above would be the simplest understanding of law makers but then there are issues involved as we tread a higher level. And the issue of separation of powers comes first. This relates with the idea pioneered by French political thinker Baron de Montesquieu, who based it upon (later found flawed) understanding of the British Parliament (but surprisingly the concept he pioneered stayed even though its premises was incorrect). He advocated that it would not only be wise and proper but also in the best interests of democratic values that the three wings of the state be made isolated from each other such they could work independently and also there could be a mechanism for checks and balance amongst themselves. It was pivotal for ensuring good governance.

So we have an institution which is devoted to making laws (i.e. legislature) and an institution which implements these laws (i.e. executive) and another institution which ensures that these laws are made and implemented with the spirit and allowed perspective under the Constitution of the State (i.e. judiciary). Therefore we have the power vested within a highest court of the State to declare the law made by legislature as unconstitutional being deprived of the inherent competency in the legislature (i.e. 'ultra vires' the legislature or simply put, beyond the power of the legislature given the limitations imposed under the Constitution) or for the reason of being a colourable devise perpetrating a fraud on the Constitution (this I would put as an innovation of the Indian Supreme Court and in the correct perspective). No wonder the United States Supreme Court (that too way back in 1803) declared in Mabury v. Madison that law in United States was what the Supreme Court said the law was.

The other issues associated with law makers, relate to the area of competence which the Constitution allots them; for example the Union Parliament in India is competent to make laws which are envisaged by the Constitution as matters relating to and of national importance (as under List I of Schedule VII) whereas there are clearly identified matters relating to state perspective and importance that are to be legislated by the State legislative assemblies. Then there are some matters which are left for the third tier of legislative (but basically self governance related) system of Panchayats wherein even they can legislature rules for their areas.

Similarly in the United States we have the doctrine of enumerated powers wherein the US Congress has the power to legislate upon the areas enumerated under the US Constitution whereas all other areas are vested to be exercised by the component states of the US federation. This is totally unlike Britain wherein all legislative powers are vested in the Houses of Parliament, which also suits the country given the small area is has to think off and given the lack of hetrogenic disparities as compared to India and US.

An essential feature of the making of the laws is the procedure for making them. Again, this procedure may either be prescribed by the Constitution or may be determined by the law-makers themselves. For example, in India while the Constitution prescribes that the law-making process shall set into action by the presentation of the ‘Bill’ by a member of the Parliament (called ‘Private Member Bills’) or by the Government (called ‘Government Bills’) and when is the law considered to have been made (in case of India it is when the Bill is passed by both the Houses and is signed by the President), the rest of the procedure is self-determined by the two Houses (i.e. Rajya Sabha and the Lok Sabha) and is termed as ‘Parliamentary Procedures’ (a huge code in itself). The procedure for law-making in the United Kingdom is similar to the above to a large extent with a series of well defined rules meant to ensure that the law-making procedure follows a full circle before they come to be implemented.

What we have hitherto discussed is essentially about the law-making powers and procedures in democratic jurisdictions. The state-of-affairs differ when it comes to other forms of State. For example, in Kingships (though pure Kingships are rare to find these days) the laws are still made both theoretically and practically by the King-in-Council which takes into account the needs of the governed subjects. The ways laws are made in such countries is purely the discretion of the King, who may or may not choose to follow self-imposed rules of good governance.

Apart from these domestic or national law makers, we also have a new group known as international law-makers. This has arisen on account of a new creed of international institutions which make binding rules which the independent nations are obliged to follow. While the rules made by earlier international institutions (such as the League of Nations etc.) were considered to be ‘soft law’ and therefore only of persuasive value, the later era of international institutions (such as the WTO, and arguably to some extent even the United Nations) have ensured that the rules framed by these institution are made binding on the Members and are followed with uniformity through out the jurisdiction of these countries. With the membership of these international institutions covering almost all countries of the world, they are increasingly been argued as international law-makers. How far it is true and how far not is currently within a subject-matter of intense scholarly debate but practically speaking, the world order has changed a lot since the dictum of these institutions has come to play.

A funny looking serious article: How becoming a lawyer works

I couldn't have been more amused to see someone telling how one becomes a lawyer when I saw a full series on 'How Stuff Works' telling one about "how becoming a lawyer works". I had been contemplating a series on articles on law intended to cover right from the history of law, its branches, legal profession right upto the recent trends in law. It sure is a mammoth exercise but then this article definitely reduces my burden on that. [click here for the full article]

It not so surprisingly starts with the decision-making (and believe me a really tough one) of "to be or not to be a lawyer". While for those who have loads of family members in the profession already, becoming a lawyer would be a natural choice, those having no God-fathers in this tough, competitive and greedy looking way of living would not come less than the decision of joining the army. It requires a lot of character for its not just your knowledge but also the sharp written and spoken skills which give the profession a colour which no other has got. No wonder Portia had to come dressed as a lawyer or else Shylock would have had its way in The Merchant of Venice.

Covering Law School as the major area for "become a lawyer", this article sets itself off to life during and after law school as the next major factor for choosing the profession. Being at law school is as equally important as the clerkships and internships as I put it, rather than the other way round.

However, naturally though, what I though was the glaring deficiency of the article was the subjective element in it. Though technically the process described is right but then the various stages which change a general-course student to a law graduate cannot be put in so less words than this article puts it. The cut-throat fight for placements/jobs, the competitive rivalry during the law school, the big rough world outside is something needing to be mentioned in any attempt to describing "how becoming a lawyer works" without which the description is not only half-hearted but also incomplete.

Its a fine attempt, a typical US perspective alone though, to describe the entire process in such simplistic outlook. Nonetheless a lawyer-to-be would have to look for more personal advise than this before one decides to take on a career in law.

Branches of LAW (Law Series - 4)

If you have a tree, it will have branches (unless you cut them ofcourse). Law is just like a tree. A look at sociological explanation is really helpful. It beautifully illustrates the process which culminates into law. It starts with the actions of Ego (individual), turns to an habit, then to folkways, mores, customs and finally laws. [click here for wiki says about this.]

But then it does not stop at that. It moves on to develop and grow into a full fledged system of its own. And this is where the tree analogy comes to play. It develops into a discipline with specialized fields and thus its branches. Another process of evolution and we have sub-sets and super-sub-sets and so we have super-specialized disciplines. And so has law witnessed the huge architectural build-up that it has gone too heavy and vast to know it full. So let us start with the ground basics

I hope I don't need to explain what law is or why law is. So let us start straight with its branches. The most prominent of them are; criminal law; commercial law; contractual law; property law; constitutional law; taxation (how could I miss that???) and tort law. Then there are the less prominent ones; armed-forces law; administrative law (generally seen as a part of constitutional law itself); cyber law; space law; intellectual property law; immigration law; child law; juvenile law; family law; disabilities law; racialism law; and what not ...

Many of these are specialized disciples already while some are toddlers, yet to find a proper space for themselves.

At this point I thought I would elaborate the areas I have enumerated above but then if would have been too boring to browse through (though I would have been even more bored writing it up). So I dropped the idea. Any ways, the thing is that this is just an area for specialization and super-specialization. Does not much has to do with a lay-man understanding of the law, for the principles and structures behind each significantly remain the same, except where the special needs and complexities dominate to make specific rules dealing with specific situations. For example, the concept lies writ large at the heart of family law that individuals are free in the decision of their life-partners. But the certain societies wonder that it would be in their better interests (I fail to see how) if only the heterosexuals are permitted to form a union.

So this is how law structures itself. At the centre lies a tree, marking the evolution of law from mother nature (and therefore the intrinsic and constant connection with society) which is the source of all principles and aspirations for growth and then we have specific branches, which deal with different areas of law; More complex the society, more specialized the law, like cyber law, space law etc.

But then this categorization into branches is artificial as in any given situation there can be a cross-section of various issues that may apply. They inter-mingle and apply as a host of problems (so you hire a lawyer) which are to be addressed simultaneously (so the lawyer makes a team of lawyers for the problem) and then convince the judge (both legally as well as extra-legally) that your side is the best one and justice (if at all it exists in this world) can only be served by ruling in your favour ...

Major legal systems of the world (Law Series - 3)

(Thanks wiki for such a well-researched diagram)
(click to enlarge)

I hope you have seen the movie 'Welcome to the jungle'. [If not, perhaps this trailer might help. See the part after 1.45 minutes]. It gives an amazing description of the rules that govern humans inhabiting the rain-forests. Not exactly, but yes, a fair description of tribal culture, where might is right and you got to have it in you, in order to survive. In early times, law used to be like that. It used to be governed by the ablest man's sword and whatever he said was the law. Thats the first legal system. Tribal laws. You might wonder whether it survives the scrutiny of modern times and advanced civilizations, but it still holds good. Be it Amazon's rain-forests or Andaman's tribal communities, these notions still continue. Perhaps an anthropologist might add more to that list.]

It is often said, common sense is not so common (so much so that I have even seen a book with that title, and ya, not read it). But such uncommon common sense is the common law. Confused? I will give you more reasons to be.

Ever met a reasonable man? Or a person whom you can call a perfect one ? [Hey, stop. I don't mean one perfect for a spouse] Perfect in the sense, one who would commit no mistakes, (not one who commits but is pardonable), one whose decision is perfect (not just for you but for all), one who knows everything and is wise, one who is strong but only to the extent an average man should be strong, one who is feeble but only to the extent an average man is feeble, one who is governed by human values but is not emotional, one who is smart but not smarter than an average man? Think you are really confused now by what I mean. But perhaps this is what I want.

I can quiet guess that your answer to the above is 'no'. Some might even to the extent of saying that there is no man on earth which fits the description. I quiet sympathize but sadly enough, there is one legal system on this planet which does not agree with you. It believes that such a man exists and exists in a big way. Such a big way that it is there at all times and at all places, one known as 'reasonable man'. This Mr. Reasonable has such a profound influence on this legal system that the entire system revolves around this Mr. Reasonable.

What would Mr. Reasonable do in this situation, what should have been the natural response of Mr. Reasonable, why should she/he not act like Mr. Reasonable in the situation? Does this sound familiar? Welcome to the 'common law system'. A system which believes the reasonable man is very common (and not so uncommon as per our understanding) and applies this test for all circumstances. All actions and inactions are judged from this reasonable man test to determine their compatibility with the law. This system is developed on the decision of the judges, which is known as 'common law'. The belief was that the judge had some divine connection with the Almighty that enabled him to lay down a rule (technically called 'precedent') which would be fit and apt for regulating human behaviour for all times to come, unless another divine logic comes to override the previous one. Now this has largely been taken over by legislature, which lays down the law and judge enunciates it. However, the judges continue to exercise this rule-laying down power and fill the gaps which the legislative law carries. Therefore, common law.

There is more to this though. The systems starts with law and then applies life-situations to it i.e. first comes the law and then whether the party to an incident acted in a manner consistent with the law laid down. This is the major reason which this system is stuffed with legal jargon, technical concepts (you already know one by now; the reasonable man, remember) and gives tremendous important and thrust to legal and logical reasoning (thought its really amazing that they do not collide most of the times) in solving life problems. [England, United States, India, Canada, Australia etc. are prominent countries following this common-law system.]

As opposed to this heavily-law biased system is another system where the factual aspects of the matter are more relevant rather than the technical enunciation of law; the 'civil law system'. It is easy to understand it as it is quiet the opposite of the civil law system. It starts with facts and then moulds the law to arrive at the correct decision. Here judge is not one wise man entrusted with a solemn duty to lay down a norm for social behaviour like in the common law system, but is in fact meant to resolve the dispute, termed as the 'inquisitorial' method of dispute resolution. The law here is a code, existing in advance and the judge is to resolve the dispute in accordance with the code. This is quiet distinct from the common law, where the judge generally adds to the existing body of law. [France, Germany, Denmark, Norway are some countries which follow this civil-law system]

Having read through the technical aspects and nuances of the these two major legal systems (I am sure you would be jittery and feeling heavy by now), I now take you to a simple and easily understood system. A legal system is dictated by religion and administered by religious priests. No wonder it is called 'Religious-law system' (though sometimes also termed as the 'Ecclesiastical System'. So what the religious texts, as interpreted by the clergy, say is the law that governs the people. Simple really, right? [Afghanistan, Iran, Saudi Arabia, Sudan are some countries which have adopted this legal system]

Then there remains just one more system to be understood; the 'customary system'. Though technically not a system in itself and just a principle of law (i.e. law develops from custom) it tends to be a system where habits and mannerisms of people force them to apply it as an obligation for all. This system is virtually a non-starter and not very prominent. Yet, wikipedia identifies atleast one country following this system.

Lastly, but not the least, don't be surprised to find a country the legal system which bears resemblance to more than one above. This is for the reason that countries keep experiencing and the judges tend to import concepts from other legal systems into their own. So we have various systems which reflect a culmination of the above principles. But in essence, they do tend to follow one system predominantly than the other.

Hope this was one interesting than the previous one (as I was told to do).

Why LAW? (Law Series - 2)

Situation 1: Mr. Giant approaches Mr. Cute and says 'hey dumbo, I don't like your face!!! I am going to reshape.' Gives a punch and blow on the eye. Laughs and leaves. Mr. Cute is left ailing.

Situation 2: Miss Yojyna plans to goes for shopping at Oxford Street. She takes a cab from Regent Street and asks the driver to drop her at the nearest bus stop. The driver says 'Madam, why are you taking the cab. Oxford Street is just around the corner, just walk.' But she insists. So he says, 'alright. I am gonna take you to Oxford Street but you have to pay double the charge of whatever comes on the machine.' She responds, 'alright. so be it'. The driver drops her at the bus stop and asks for double the amount, as promised by her. She replies 'you cheat, you liar, you thug!!! you harressed me and tempted me to get in your car so that you could sell me to a sex-shop. help, people help !!!' The cab driver sees people accumulating and so runs off.

Do these situations make you think? Is there something unfair going on in here? Is everything ok? Are the people crazy? Or is it just an everyday affair? Happens just around the corner everyday, right?

I will try to explore the answers to these while dealing with the issue, why law?

Though the question 'why law' is not as perplexing a question as to 'what is law' but the answer to this is essentially embedded in the determination of that other question. Thus the most approximate answer to this 'why' is that law is needed to regulate human behaviour. But another 'why' leads to the question, 'why do we need to regulate human behaviour?' and it is here that we need to appreciate the nuances of a social structure, that also leads us towards discovering the answer to the question 'why law'.

Defining human behaviour is, essentially, a prediction as to interactions which take place when two humans interact; do they act friendly, do they turn hostile, do they act as unknown, etc. The reason is essentially the xenophobic and self-preserving tendencies of humans, coupled with the fear-factor and self-interest motivations, which influence interactions. Therefore, there arises a need for an independent unbiased person/institution to define the specific parameter in which the interactions should take place. These parameters acts as the rules of bounded rationality in which the interactions should take place.

The rules (or 'law') conceive general and specific situations which are to be promoted or avoided and accordingly devise mechanisms influencing these interactions. To illustrate, the rules prohibit interactions between parties where there is an inequality of bargaining power (therefore the concept of undue influence and other 'vires vitiating consent' in the law of contracts). Also, the law gives a legal protection to those entities which are considered to be ignorant of their self interests (like doli incapax and similarly the concept of statutory rape in relation to minors, etc.). It is here relevant to point out that these rules vary across countries and regions, depending upon the social ethos and morality issues operating therein. For example, while India prescribes laws against the harmful practices of Sati and child-marriage, there may not be any need for these laws in European jurisdictions wherein such practices are unknown.

As regards the side of promotional factors, one illustration can be the promotion of research and development, intellectual outputs etc.; therefore the protection and right of exclusive exploitation to the harbingers of intellectual property. Similarly, the law rewards good behaviour and so the concept of probation.

Therefore law comes to define the environment in which the interaction should take place; the manner in which interaction should take place; the grounds for and effects of abuse; prohibitions and debarring of erring individuals; rewards for good behaviour; etc. Thus law is required to govern; govern the governed (individual or subjects) and govern the governing (person or institution). Thus these set of rules act as the paramount basis for governance, and this is how the legal system works. And therefore we have LAW.

Now let us come back to our two situations. It may be right in a few places that Mr. Cute was punched. But a majority of people will say that this was wrong on the part of Mr. Giant and he must be punished for that. But why should he be punished. Did he do anything wrong? Not until it is recognized that the conduct of Mr. Giant was unacceptable in a social system and there is a punishment prescribed for that. Doing that, is precisely what law is for. It recognizes and defines what is impermissible social behaviour and proscribes mechanism to ensure that such incident is not repeated.

Similarly, in the second situation, while it was wrong on the part of the cab-driver to ask double payment, it was similarly wrong on the part of Miss Yogjna to shout at him in an offensive and rude manner. Now it depends upon the social perspective in which we are in, to decide what law should prescribe for it. Should the driver be held to have done an acceptable act (and thus there be a law to prohibit that) or the lady to have done something obnoxious (and thus dealt with accordingly) or should both of them be taken to task for what they did. I would leave you with that, to define in your own terms as to what should have been the next step that law would have taken after the incident took place, of if you desire, what should the law say for such situations.



** [ For general interest, I may as well point out that these rules are subjective, subjective to the one laying down these rules (and therefore they vary). This is for the reason that societies, invariably, identify a chosen one (or chosen few) to lay down these rules. The selection process of this chosen group may again be laid down by habits or prevalent practices. This chosen group remains responsible for laying down these rules in a manner, as it is so expected from it, which is in the best interests of those to whom these rules apply. For example, in early England the King was the 'fountain-head of justice', next to God and was considered the chosen one to lay down the law. Now the system that works is termed as the 'rule of law' i.e. no one is above the law, the law-maker himself.

Thus, while there may be a reason behind the legal rules, which may as well be clearly evident from the rule itself (like a rule prohibiting corruption / bribery etc.), there may not be an identifiable reason behind the rule (like why a particular age is declared as the age at which an individual attains majority). These are questions mostly left unanswered and justified as 'legislative wisdom'. ] **

What is LAW? (Law Series - 1)

What is law? Good question actually. For it does not have one unequivocal answer. It fits in all these and other descriptions; it is a stream of thought, a literal depiction of bounded rationality, a societal instrument for regulating human behaviour, a means of social change, collective intelligence of a civilization, a code of best practices, etc. etc. etc.

The Dean of my Law University used to define law, for a lay-man, as 'codified common-sense'. I see no hiccups in accepting that definition but for the fact that it is just like a blind-men explaining an elephant. While the description is correct, it fails to exactitude the description of law covers all its contours.

Then there is another description that 'law is a system of rules'. I quiet agree with this statement except for the fact that certain dimensions of law do not exactly fit in this description. For example, major portions of international law are not rules but just sought-after practices, which may or may not be honoured. Nonetheless it is appropriate to go ahead with this understanding and explore the concepts further, given the fact that there would be exceptions to any definition.

Now once we have a system of rules, what does it do? what is it meant for? why have this system of rules? The answer to them seem to be historic as well as the outcome of human interactions with each other. A law-less world can be best described as a potion of Darwin's theory which relates to the 'survival of fittest'. Thus there would be a position of might is right. Thus to evolve a better social system (ofcourse the use of the term 'better' here is a relative term, depending on the needs of the majority of social cross-section the system is meant for) there are brought in 'rules' which regulate the ways in which human interactions takes place.

A lot of this is explained by the 'social contract theory' which builds it premises on a hypothesis that the people (in a 'state of nature' i.e. the social order prior to the legal system coming into place) agreed to limit their own rights and confer them on an individual/group of individuals/institution (depending on which version you chose i.e. of Hobbes, Locke or Rousseau) which they conceived as a better protector of their rights and liberties.

Thus the society accepted towards positioning itself in a system where the rules would flow either from top (in a 'Kingship' type or similar based system) or bottom (in a 'democracy' type or similar system) and everyone would be abide by them. Initially there was a system that even the rule-maker(/s) would abide by them except for certain special rules which applied to him(/them) specifically but with passage of them most of these rule-maker(/s) came to place themselves in a position where they only made the rules for others and were not required to abide by any. [Thus is explained the hue-and-cry for 'good-governance' norms to be applied to these rule-making institutions.]

But as things became, they stand as thus, there exists a rule-making institution, called the 'sovereign' (which may be a single individual) which is the originator of these rules, meant to be followed to whom they are addressed and these rules are collectively termed as 'Law'.

This simplistic understand of law, when exposed to the special needs and circumstances and the subject matter it regulates, assumes hybrid and diagrammatically-opposite dimensions and becomes quiet complex. However what remains the same is this underlying of regulating human behaviour. Thus becomes 'law' as an institution in itself, permeating all self and affecting all.

Law Series

As I had originally thought, having written a lot on random issues, I now move on to write on a series of legal issues.

Since I have noticed that it is often a complaint that law is drafted in a manner such technical and full of legal jargon that none other than the legal professionals are able to identify and understand the substance of enactments, which no doubt effect them day in an out. So I try to give my understanding of issues and ingredients in a non-technical language.

I have named these series of posts as 'Law Series' and as of now I have identified a few topics to deal upon. I will keep adding to this identified list and try to cover as many areas I can. As of now, this list stands as follows;

1. What is LAW?
2. Why LAW?
3. Major legal systems of the world
4. Branches of LAW
5. LAW Makers
6. LAW Executors
7. Law Interpretors
8. Natural Sciences and LAW
9. Social Sciences and LAW
1. Economics
2. Sociology
3. Psychology
4. Political Science
5. History

10. Legal Professionals
11. Jurisprudence
12. Schools of Legal Thought

Let us see how far and deep I am able to go in this.

[ :) ]