General & Commercial Laws

GENERAL & COMMERCIAL
LAWS
AFTERSCHO☺OL
– DEVELOPING CHANGE MAKERS
CENTRE FOR SOCIAL ENTREPRENEURSHIP
PGPSE PROGRAMME –
World’ Most Comprehensive programme in social
entrepreneurship & spiritual entrepreneurship
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02/03/09 AFTERSCHO☺OL's
AFTERSCHO☺OL's MATERIAL
MATERIAL 1
www.afterschoool.tk FOR PGPSE PARTICIPANTS
GENERAL & COMMERCIAL
LAWS
Dr. T.K. Jain.
AFTERSCHO☺OL
Centre for social entrepreneurship
Bikaner M: 9414430763
tkjainbkn@yahoo.co.in
www.afterschool.tk, www.afterschoool.tk
www.afterschoool.tk
02/03/09 AFTERSCHO☺OL's
AFTERSCHO☺OL's MATERIAL
MATERIAL 2
02/03/09 AFTERSCHO☺OL's MATERIAL 3
FUNDAMENTAL RIGHTS?
1) Right to equality (14 to 18)
2) Right to freedom (19 to 22)
3) Right against exploitation ( 23, 24)
4) Right of freedom of religion ( 25 to 28)
5) Right about cultural and educational matters
(29,30)
6) Right of constitutional remedies (32)

Right of equality….
• 14 = equality before law and equal
protection of law
• Legislative classification allowed (AnwarAli
Sarkar 1952 : 1. based on intelligible
criteria 2. difference must be based on
objective to be achieved).
• (Ram Kishan Dalmiya v/s Justice
Tendulkar 1958) : 1. classification, not
class legislation 2.
No discrimination…
• Article 15 : on the basis of religion, race,
caste, sex, place of birth, etc.
• Access to the following will not be denied :
• 1. shops, restaurants, hotels etc.
• 2. wells, tanks, bathing ghats, roads,
public resorts etc.

Special provisions / exceptions..
• (15—4)
• Socially & educationally backward classes
• Scheduled tribes
• Scheduled castes

Equality of opportunity
• Article (16)
• Equal opportunity in matters of public
employment
• No discrimination on the ground of
religion, race, etc.

Abolition of untouchablility…
• Article 17

Abolition of titles …
• Article 18.

Freedoms.. (19)
• Speech & expression
• Assemblance (without arms)
• Association & unions
• Movement (throughout India)
• Reside and settle in any part of India
• Practise and profess any profession /
trade

Reasonable restrictions…
• Keeping in mind the :
• Objectives of the restriction
• Evil and the extent of evil (for which
restrictions have been imposed)
• Prevailing conditions…

Freedom of speech…
• Reasonable restrictions…… (K A Abbas 1971)
• For
• Sovereignty & integrity of the country
• Security of the state
• Friendly relations with the neighbours
• Public order
• Contempt of court
• Incitement of offence
• defamation

Freedom of assembly ….
• Restrictions can be there for :
• public order
• Sovereignity & integrity of the country.

Freedom of association….
• Restrictions can be put for :
• Public order
• Morality
• Sovereignty & integrity of the country.

Freedom of movement
• Reasonable restrictions can be there for :
• Interest of general public
• For protection of interest of scheduled
tribes.

Freedom of trade & profession..
• Reasonable restrictions for :
• 1. technical qualifications
• 2. state can carry on some trades etc.
• The govt can put reasonable restriction,
for removing monopoly….

Protection regarding conviction of
offence …
• Protection against ex-post facto laws (you
cannot be incriminated for something that you
did – which was legal when you did – but later it
was not allowed by law).
• Protection against double jeopardy (no person
can be punished twice for same offence).
• No person can be forced for self incrimination
• Protection of life and personal liberty….
• (A K Gopalan 50, Maneka Gandhi 78)
• Protection from arrests & detention …
Rules regarding arrests…
• Give him reasons
• Allow him to consult legal practitioners
• Must be brought before nearest
magistrate within 24 hours

Preventive detention…
• To prevent a person (although he is not a
criminal or has done something wrong).
• Max. 3 months Unless :
• Advisory board – parliamentary law …
• Examples ; detention under COFEPOSA,

etc.

Exploitation..
• Complete ban on human traffic
• Article 24: children cannot be employed

Freedom of religion..
• Reasonable restrictions can be there for :
• Public order
• Any other law or social welfare
• There is also a freedom to manage one’s
religious institutions and bodies.
• Freedom from attending any religious
instructions etc.

Cultural and educational rights…
• People have right to protect their culture,
language etc.
• No citizen can be denied admission into
any educational institution only on the
grounds of religion, race, caste, language
etc. (article 29) (DAV College Jullunder
1971)

Rights of minorities..
• Article 30 : they have the right to manage
their own institutions.
• The govt. will not discriminate against
them.
• (All saints High School 1980, St. Xaviers
College 1974)

Constitutional remedies …
• Right to move to the Supreme Court for
violation of any of the rights.
• Ubi Jus Ibi Remedium

DIRECTIVE PRINCIPLES
• Not enforceable by law
• Justice, social, political, economical
welfare
• Adequate livelihood
• Equality of resources – no concentration
• Equal pay for equal work
• Health & proper work (no child labour)

Directive principles…
• Free compulsory education upto age 14
• Just working condition
• Self govermance & panchayats
• Proper nutrition
• Workers participation in management
• Free legal aid
• Agriculture & animal husbandary & prohibition of cow
slaughter
• Environment protection & forests..
• Protection of monuments
• Peace and security
Fundamental duties…51 A
• Respect constition & national symbols
• Follow rules & regulations
• Safeguard public property
• Strive towards excellence
• Protect rich cultural heritage
• Develop scientific temper, humanism, and spirit
of inquiry
• Defend the country
• Protect unity, integrity of the country

ORDINANCE
• Article : 53 • Article 123 -
• Types: president shall have
• Administrative power to issue
ordinance. (when
• Judicial both houses are
• Military prorogued)
• Legislative • For 6 weeks from the
date of reassembly of
the Parliament or
when it is passed /
disapproved.
Important cases …
• Golak Nath 1967 : fundamental rights
cannot be amended
• Kesavanand Bharti 1973 : Parliament can
amend fundamental right or any part of
constitution, but cannot change the basic
structure / framework of the constitution.
• Minerva Mills (1980) : parliament cannot
amend Article 368
When can centre make law on
state list ?
• In national interest ( 249) (only for 6
months)
• During state emergency ( 250) (only for 6
months)
• On breakdown of constitutional machinery
in states ( 356 & 357) (president rule)
• On request by 2 or more states (252)
• For enforcing international agreements
(253)
Principles of interpretation of
legislative list…
• Harmonious construction (between centre
and state)
• Pith & substance rule
• Colourable legislation (Kameshwar Singh
V/s State of Bihar 1952) (you cannot form
a law, which is not permitted)
• Plenary powers (final powers with the
centre)
FREEDOM OF TRADE &
COMMERCE
• Article 301,to 305 and 307.
• Reasonable restriction in public interest
• Saving of law regarding state monopoly
• Saving of existing law

WRITS …..
• When fundamental rights are violated, any
person can approch supreme court / high
court and get a writ…
• Habeas Corpus (present in body)
• Mandamus (order to do something)
• Prohibition ( order not to do something)
• Certiorari (take the matter)
• Quo warranto (which whose authority?)
Subordinate legislation …
• When the law is formulated by subordinate
bodies like municipal bodies, autonomous
bodies etc. then it is called subordinate
legislation. Example:
• Municipal legislation
• Colonial legislation
• Judicial legislation
• Executive legislation etc.
Delegated legislation…
• In England, the parliament may delegate
to any extent. (delegate means allowing
subordinate bodies to make law).
• In India : the primary duties cannot be
delegated, policy and guidelines must be
issued for other matters…

What is statute?
• The will of legislature is called statute
• It must be written
• Law established by the act of legislative
power.

Types of Statutes:
• CDRACEDP
• C: codifying = to write or codify
• D : declaratory = to declare
• R: Remedial = remedy for a problem
• A : amending = to change
• C: consolidating = to combine
• E : enabling =to empower or remove restriction
• D: disabling = to put restriction
• P : Penal = to impose penalty

Objective of interpretation..
• To discover the true intention of the
authors of the law.
• To try to read the mind of the people who
have formulated the law

Principles of interpretation…
• 1. primary rule :
• Literal construction: the words have to be
understood in their literal meaning. We
have to try to find their dictionary meaning
and apply the same meaning while
interpreting them.

Mischief rule….
Also called Heydon’s rule
Try to find the mischief for which the law was
made.
Steps : 1. find the law before enactment of this law
2. find the problem, which was to be solved by
this law 3. what was the remedy that was
envisioned 4. how was the remedy envisioned.
Sodra Devi Case 57 : the rule is to be applied
when liternal meaning is ambiguous (not clear).

Reasonable construction..
• Ut res magis valeat quam pareat
• The words should give reasonable
meaning (based on common sense).
• Exclusive reliance on bare dictionary
meaning may not be useful.

Rule of harmonious construction…
• Law should be consistent with other law. When
we are trying to find the meaning of a statute, we
have to see that there is consistency with other
law and if there is any inconsistency, it should be
avoided.
• Raj Krishna V/s Pinod Kanungo 54: construct
law – so that there is no conflict
• Venkataramana Devaru Vs state of Mysore 58:
interpretation of 25(2)(b) and 26(b) of constittion
– in such a way that there is no conflict.

Rule of Ejusdem Generis …
• Of the same kind …
• If general words follow particular words,
then we have to interpret as if they are
applicable to the particular purpose and
we have to interpret accordingly.
• Jage Ram (71) and Thakura Singh (65) :
the meaning of the general word depend
on the specific word attached with it – so
interpret accordingly.
Expressio unis est exclusio alterius
• Means : expression of one thing excludes
others
(for example, if you permit only girls,
obviously, boys are not permitted,
(although you may not mention about it).

Contemporanea expositio Est
Optima Et Fortissima Lege
• interpretation of law should be
contemporary – the recent insidents /
events should be kept in perspective while
trying to interpret the law. The most recent
events have high relevance for
interpretation.

Noscitur a socitis
• Meaning of a word should be based on its
associated words.
• When 2 or more words are analogous
meaning, they they must be understood in
their sense in which they have been used.

Strict and liberal construction..
• The act should not be thought to include
something not written in the law – follow
three rules:
• Literal rule
• Golden rule
• Mischief rule
• Try to follow what is written

Assumptions…
1. Words are used precisely and not
loosely
2. Mens rea : guilty mind – the law is for
this – actus non facit reum nisi mens sit
rea (the act does not create guilt unless
done with guilty mind).
3. State is not affected by statute (unless
so mentioned)
4. Consistent with international law
Assumptions about legislature …
1. Legislature knows the things
2. Legislature doesnot make mistake
3. Legislature confers necessary powers to
do things and to carry out necessary
work
4. Powers and duties are inter-connected
5. Legislature tries for natural justice
6. Legislature does not make alternation -
unless express enactment…
Internal aids in interpretation..
1. Title
2. Preamble (in the beginning of a law, there is a
preamble, which talks about the objectives of the
law)
3. Headings, chapter headings
4. Marginal notes
5. Interpretation clauses
6. Schedules
7. Proviso
8. Prior laws (what was the law before the enactment
of law and why this law was enacted).

External aids in interpretation…
1. Reports / committee reports /
parliamentary committee reports / inquiry
reports / etc.
2. Parliamentary history / debates /
discussions / minutes of parliament
3. Reference to other statute
4. Dictionary
5. Foreign dictionary
6. Foreign laws..
Specific Relief Act 1963
1. Property : (sec. 5 – 8)
2. Contract ( sec. 9 – 25)
3. Rectification of instrument (26)
4. Rescission of contract ( 27 – 30)
5. Cancellation of instrument ( 31 – 33)
6. Decrees ( 34- 35)
7. Injunction ( 36 – 42)

Purpose …
1. The remedy should be mutual
2. Discretionary with court
3. Specific performance should be possible
4. The person should be willing to perform
his part

Who may sue …
• Sec. 15 : only a party to the contract can
sue…

Part performance
• Sec. 12 :
• When they are separate and independent
or they are complete in themselves – the
court may order for part performance.
• When a part of contract cannot be
performed – but the remaining part is
considerable part – it may be permitted to
be performed.
When specific relief cannot be
granted …
• Section : 14: when there are minute
details and court cannot supervise these
details… when there is personal service
involved or when money is sufficient
compensation or when the nature of
contract is non-determinable.

Declaratory decrees
• It is issued by the court to ascertain the
status of the ownership and legal position
regarding some property.
• Declaration does not confer new rights,
but merely declares the legal status of the
person.

Examples of declaratory decree…
• Divorce
• Priest
• Adopted son
• Legal character of marriage

Effect of decree…
• It is binding on the parties to the suit.
• Such decree cannot bind strangers
• It is just a declaration.

Preventive relief
• Preventing a person from doing what he is
under an obligation not to do.
• The court issues injunction..
• Temporary or perpetual injunction

Specific performance / v/s
injunction…
• Specific performance gives order to
perform
• Injunction gives order not to perform

Mandatory injunction…
• The court may order the injunction to
prevent breach of certain obligation, the
court may order for its implementation.

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• Examples ; detention under COFEPOSA,

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• Ubi Jus Ibi Remedium

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