An ‘A to Z’ guide to the new, time-less and important in law (New Year Special!)

Posted by

Why an A to Z list of law/legal concepts/judgments etc? And why now?

As somebody wise said: A rear-view mirror is the best kind of crystal ball. Sometimes ‘looking back’ is ‘looking ahead’. Our choices and the effects we produce have their causes in the past; and, before this post degenerates into philosophical humdrum about interpretation of history and the future ahead, let us cut to the chase.

This is an A to Z list about a lot of things that I feel a student aspiring for the judiciary exam should be cognizant of. I must flag this at the very outset that, while the alphabets (A to Z) remain the anchor for the discussion and chart us from one topic to the other, I will take the creative liberty to digress (wherever needed and justified!) and flag issues at the periphery too, just to set the reader thinking, and kindle him/her enough to take up further readings.

Since blogs are eternal, care has been taken to leave out topics which are very ephemeral and likely to fizzle out soon. The idea is to generate light, rather than heat, therefore the emphasis is more on concepts, which stay relevant, with some amount of recent context thrown-in to try and have the concepts come alive for the reader and interesting.

An attempt has been made to make some maxims accessible; these maxims largely concern rules of statutory interpretation and are worth their weight in gold as they arm the student with the necessary mental and knowledge bandwidth to take-on any practical situation; its about knowing the method of law (more than the law!).

So, without further ado, as the year 2017 draws to a close, let us look back at some legal concepts/principles/laws/judgments/maxims that have assumed great importance in the recent times through this list. This list is by no means an ‘alpha to omega’ and is not conclusive/comprehensive on the issues dealt-with; it is but a curated assortment of some issues new as well as ‘time-less’ with the singular objective to have the student  thinking and reading up more on these….

With this, Happy reading and an awesome New Year!

**

A-dverse Possession –

12 years of illegality that suddenly turns into legality. Having regard to the iniquitous nature of this plea, anyone claiming adverse ownership has to bear an extremely strict burden of proof. Further, Adverse Possession being a shield (as opposed to a sword) cannot be used to file a suit for declaration seeking ownership on the basis of Adverse Possession.  (See the landmark decision of Justice Bhandari in Mukesh Kumar v. State – https://indiankanoon.org/doc/290532/)

Also : A-ttempt – but an attempt to define attempt (within this limited space) is an attempt in futile!

**

B-ona fide-  

In or with good faith; honestly, openly, and sincerely; without deceit or fraud. Truly; actually; without simulation or pre-tense. Innocently; in the attitude of trust and confidencewithout notice of fraud, etc. The phrase “bona fide” is often used ambiguously ; thus, the expression “a bona fide holder for value” may either mean a holder for real value, as opposed to a holder for pretended value, or it may mean a holder for real value without notice of any fraud, etc.

In the Indian legal regime : Bona fide is defined under the IPC as well as the General Clauses Act, though quite differently; the former (IPC) takes ‘due care and caution’ (objective test of bona fide) as the yardstick; whereas the latter examines ‘bona fide’ subjectively, that is, by examining whether the act in question was in fact honest or not.

B-also for B-enami – simply put, a property held in ‘X’s name, with consideration having been paid by ‘Y’ instead.

**

C-ommon law –

The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

To be distinguished from Civil Law, which is loosely used to refer to systems predominantly governed by written law/codes.

**

D-e die et diem –

From day to day. This maxim is used to denote to cause(s) of actions which arise day to day. For instance, in case of unabated nuisance or a trademark infringement, the cause of action arises and gets renewed every day; this affords relief from the rigors of the statute of limitations as the period starts afresh on commission of each wrong. For a statutory recognition of this concept, please see : Section 22 of the Limitation Act.

**

E-jusdem Generis –

adj. Latin for “of the same kind,” used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed.

Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation, and that is the commonality that runs through them.

 Fun Fact : The SC invoked this principle to interpret the phrase ‘other authorities’ in Article 12 of the Constitution, however, later this interpretation gave way to more holistic/sophisticated tests on when an authority is to be considered ‘State’ and, consequently, amenable to writ jurisdiction of the Constitutional Courts. 

 Ejusdem generis also come into question in a recent case before the SC where the legality of ‘taking of voice samples of the accused’ was in question. The question was whether the word ‘examination’ in Section 53 of the CrPC (which is an inclusive definition enlisting blood, hair samples etc, followed by ‘such other tests’) could be read in a way to encompass voice samples. The court prima facie ruled ‘no’ (though the decision otherwise on legality of compelling accused to give voice samples is pending before the larger bench). The Court’s attention in this case was also drawn to the observation of SC Selvi wherein it was observed that the dynamic interpretation of the amended Explanation to Section 53 is obstructed because the general words “and such other tests” should ordinarily be read to include tests which are of the same genus as the other forms of medical examination which are examinations of bodily substances. The question before the Court in Selvi was whether ‘narco-analysis test, polygraph examination and the BEAP test’ can be read to fall within the phrase ‘such other tests’ having regard to the principle of ejudsdem generis. (The discussion on this point is interesting and I must commend students to read : https://indiankanoon.org/doc/63865477/)

**

F-ait Accompli

an accomplished fact; a thing already done.

Example: “The Iranians are racing to make their nuclear capability a fait accompli”.  Meaning thereby that by the time anyone could do anything about Iran’s race to nuclear arms, Iran would have already built them, which is something that cannot be undone or reversed, and leaving the world to come to terms with it.

In India the phrase has often been used in context of the earlier Child Marriage Restraint Act, which prohibited child marriages, however, did not invalidate them. A child marriage, therefore, once solemnized, is a fait accompli and cannot be declared void on this ground alone.

 

**

G-eneralia Specialibus non derogant.

General things do not derogate from the Special. Special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim from being applied.

Contemporary example: The Supreme Court recently in Sharat Babu Digumarti v. Govt. of NCT of Delhi – 2016 SCC OnLine SC 1464, has ruled that in a case if no charge has been made out under Section 67 of IT Act (dealing with obscenity in E-form), then the accused cannot be prosecuted against under Section 292 IPC. The key take-aways from the said judgment were:

  1. S.67A and Section 67B of the IT Act is a special offence dealing with publishing of obscene information in electronic stream. In this regard, Section 79 of the IT Act provides a crucial protection to intermediaries having regard to peculiarities of the Cyber World, which are not available in a traditional prosecution for obscenity in offline form – and therefore, Section 292 of the IPC has no application in such cases, especially when Section 292 was never amended to include the words “electronic Record” and since it does not afford the accused with additional safeguards laid down in S.79 IT Act through which an intermediary can avoid liability by certain remedial actions/due diligence mechanisms.
  2. The Court essentially applied the doctrine of “Generalia Specialibus non derogant” where a more specific law overrides the more general one.

Something to ponder on : Whether data theft would be ‘theft’ for the purposes of Section 379 of the IPC.

Students may also examine other instances where a special law overrides the general law. Please see: Whether electricity theft is theft for the purposes of IPC? Also examine the effect of Section 4 of the CrPC.

**

H-abeas Corpus

Latin for “you have the body,” it is a writ (court order) which directs the law enforcement officials (prison administrators, police or sheriff) who have custody of a prisoner to appear in court with the prisoner to help the judge determine whether the prisoner is lawfully in prison or jail. The writ is obtained by petition to a judge in the county or district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been summarily terminated without cause. Historically called “the great writ,” the renowned scholar of the Common Law, William Blackstone, called it the “most celebrated writ in English law.”

In India such a writ can be issued by the HC and the SC.

Fun Fact: During emergency, many political activists were detained in prisons across the countries, constraining their comrades to file writs of habeas corpus; some HCs went on to entertain such writs (on the ground of the palpable and flagrant violation of Article 21/22 of the Constitution) and sought responses from the government. These challenges finally ended up before the Supreme Court, which delivered a judgment, which has been rightly termed a blot on the otherwise fabulous career of the Indian Judiciary. The aberration was – ADM Jabalpur v. UOI (1976) where the SC effectively reduced the right to life and personal liberty to a plaything of the majority of the day; and held that the same can be suspended during emergency. What the constitution giveth, the constitution can very well taketh away, is that the SC suggested. Diluted by Maneka Gandhi and subsequent Constitutional amendments (sigh of relief!)

 Example : Apart from the traditional cases of the writ being filed to secure personal liberty to persons illegally detained, the writ has also been invoked frequently in the recent times in cases of child custody. A recent case is one where a mother (despite foreign court’s orders as to custody) ran away to India with the child in violation of the foreign court’s order, constraining the father to file a writ of habeas corpus. The SC (speaking through a 3 judges bench effectively ruled out the use of writ of habeas corpus in such cases to execute a foreign court order, for which there is separate mechanism. The relevant excerpt of the judgment in Nithya Anand Raghavan vs State Of Nct Of Delhi (July, 2017) is reproduced below for the sake of convenience:

“29. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the Court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign Court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign Court or to 16 113 (2004) Delhi Law Time 823 resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

 (The judgment can be accessed at : https://indiankanoon.org/doc/53310178/)

 

**

I-nquisitorial System (as opposed to an Adversarial System)

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider inquisitorial misleading, and prefer the word non-adversarial. The function is often vested in the office of the public procurator, as in RussiaChinaJapanGermany, and Scotland.

Sections 311, 313 of the CrPC and Section 165 of the Indian Evidence Act have trappings of an inquisitorial system as they allow the judge to play a more-pro-active role and participate more actively in trial, rather than being a mute spectator. The idea is for the judge to be a referee (run with the parties) rather than be a passive umpire.

 Supreme Court’s reading of Section 156(3) of the CrPC and reading it in such a manner for it to include ‘the power to monitor investigation’ (The power to order investigation would have implicit within it the power to ensure that the investigation is an effective investigation is how the SC sees it in Sakiri Vasu). This is seen by some as making inroads into the classic separation of investigative and adjudicatory bodies, however, having regard to the social context and the dismal state of investigations, was long needed and a positive step.

 

** 

J-uristic Person (as opposed to a natural person)

A body recognized by the law as being entitled to rights and duties in the same way as a natural or human person, the common example being a company.

Recently in news because: 

A division bench of Uttarakhand High Court has declared that rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person. (The judgment makes for an interesting read and can be read at : http://lobis.nic.in/ddir/uhc/RS/orders/22-03-2017/RS20032017WPPIL1262014.pdf)

**

K-eep

In a controversial judgment, Justice Katju had said: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a ‘relationship in the nature of marriage’ for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence Act, 2005.” He had also rejected the plea for review of this judgment.  (From D. Velusamy v. D.Patchaiammal (2010 SC) accessible at : https://indiankanoon.org/doc/1521881/)

**

L-enity (principle of)

 The rule of lenity (also called the rule of strict construction) is a principle of criminal statutory interpretation that requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. It has a long history in the law and has been an important element of the relationship between the courts and legislature, although its role in modern jurisprudence is less clear.

Since criminal law, by its very nature, entails serious consequences for the subject – Courts in India have been reluctant to artificially expand (or expansively interpret) the language of penal statutes and to apply them to situations which otherwise do not fall clearly within the ambit of the statute. An extension of this rule is that when a statute concerns personal liberty or penal consequences, the courts often insist on compliance with the terms of the statute (remember : if a certain thing is ordained by statute to be done in a certain way, it has to be done in that manner alone and no other).

 Something to ponder on : Whether ‘data’ would be ‘property’ for the purposes of Section 22 of the IPC? Whether it is permissible to read the definition in such a way so as to include intangible/incorporeal property such as data? Would that be an affront to the principle of strict interpretation.

This principle also applies in taxing statutes; so if there are two views on whether a particular tax is attracted or not; the court has to take a view in favour of the assesse and against taxation.

 

**

M-oney laundering

Investopedia defines money laundering as The process of creating the appearance that large amounts of money obtained from serious crimes has originated from a legitimate source.”

The offence of ‘Money Laundering’ is defined under Section 3 of the PMLA, which, for ease of understanding, can be deconstructed as :

Whosoever :

  • directly or indirectly,
  • attempts to indulge, or
  • knowingly assists, or
  • knowingly is party, or
  • is actually involved in any process, or
  • activity connected,

with the Proceeds of Crime, including its :

  • Concealment,
  • Possession,
  • Acquisition or use; and
  • Projecting or Claiming it as Untainted Property

shall be guilty of offence of Money-Laundering.

It is clear that the section is most widely worded and almost any kind of dealing with the proceeds/fruits of crime, is brought within the purview of the section and made culpable.

**

N-on Obstante Clause –

(Lat) Notwitstanding: or not opposing. A non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions overcome contrary provisions that may be found either in the same enactment or some other enactment that is to say, to avoid the operation and defect of all contrary provisions.

 Example(s) :  

  • Section 81 of the IT Act provides for an overriding clause and this was used by the SC in Sharatbabu (supra) to rule out a prosecution under the ordinary penal provisions under the IPC, when the accused was being prosecuted under the IT Act for the same act.
  • In another case recently the SC was confronted with an ‘non-obstante clause’. The facts of the case were fairly straightforward. ‘X’ was the owner of property ‘Red Acre’ which was in possession of tenant ‘Y’. ‘X’ also mortgaged the property to a bank (who as per the SARFAESI Act is a ‘secured creditor’ and entitled to special rights of re-possession of such property with a view to protect its legitimate interests and to recover the outstanding amount. Section 35 of SARFAESI has a non-obstante clause, which has the effect of giving SARFAESI an overriding effect over other laws. In this case, the tenant was a protected tenant and entitled to protection under the rent control legislations. In this factual background, the Court ruled that in this factual context and in a contest between the rent control law (which is also a special legislation) and SARFAESI (also claiming to be a special law providing specific remedies to a secured creditor), SARFAESI would not over-ride the rent control, despite a non-obstante clause. The Court held that : “A non-obstante clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act. The expression ‘any other law for the time being in force’ as appearing in Section 35 of the SARFAESI Act cannot mean to extend to each and every law enacted by the Central and State legislatures and It can only extend to the laws operating in the same field, the Court held.” (Vishal N.Kalsaria v. Bank of India & Ors – 2016 SC accessible at : https://indiankanoon.org/docfragment/176039345/?formInput=sarfaesi%20act)
  • Another recent example of the use of non-obstante clause is Section 8 of the Arbitration Act, 1996 (as amended in 2015) which mandates the Court to refer the matter to Arbitration unless it is prima facie satisfied that no valid arbitration agreement exists, notwithstanding any order, judgment, decree of any Court. This was apparently done to override a thicket of judgments which mandated the Court to examine the issue of arbitrability etc, at the time of reference to Arbitration. This led to undesirable judicial intervention and legislature thought in its wisdom to override these decisions and to make referral to arbitration a norm and lower the thresholds needed to be satisfied for that purpose.

**

O-mnia praesumuntur rite esse acta

All things are presumed to be done in due form. Where it has been proved that an “official act” has been done, it will be presumed, until the contrary is proved, that the said act “complied with any necessary formalities” and that the person who did it was “duly appointed”

In India this ‘Presumption of Regularity’ is encapsulated in Section 114 of the Evidence Act.

In administrative law, it is a settled principle that the onus of proof rests upon the party alleging the invalidity of an order. In other words, there is a presumption that the decision or executive order is properly and validly made, a presumption expressed in the maxim omnia praesumuntur rite esse acta which means ‘all things are presumed to be done in due form.

Though the applications of this maxim may be myriad, this maxim was recently applied in a criminal case, where the accused persons had challenged the legality and admissibility of the search and seizure procedure, which according to the defence argument, stood vitiation due to non-joining of independent witnesses. The Court in this regard held : “…29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. Section 114 of the gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed.In view of the above, the submissions of the learned counsel for the appellants in this regard, are held to be without any substance..”

 **

P-ari Delicto

Doctrine of Pari Delicto is the embodiment of the principle that the courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud.

As per Blacks’ law dictionary (fifth edition), the maxim –pari delicto portior est condition possidentis (defendantis)-means: In a case of equal or mutual fault [between two parties] the condition of the party in possession [or defending] is the better one. Where each party is equally in fault, the law favors him who is actually in possession. Where the fault is mutual, the law will leave the case as it finds it.

A contemporary example is a brilliantly written judgment by Justice B.D.Ahmed (which can be found here : https://indiankanoon.org/doc/300293/ – in this case, simply put, A paid some money to B to help him get a government job (ostensibly for the purpose of bribe, facilitation or whatever one may call it!), B could not get ‘A’ the job and obligation to return the money arose; B issued a cheque which bounced, the issue was whether the cheque had been issued in discharge of a legally enforceable debt or liability; this question in turn depended on whether this agreement for return of amount was a valid contract, or not. The Court held ‘no’ primarily relying upon the fact that a contract for trafficking in public posts is illegal and against public policy; and the agreement, therefore, is void. This judgment explains the concept very well and must be read by all students of contract law).

There are certain exceptions to the principle of pari delicto, that is to say, that in certain cases a party can recover the monies paid/property delivered notwithstanding the immorality of the underlying cause of action. These have been crystallised in the classic case of Sitaram Aggarwal v. Radha Bai – 1968 SC in the following words:

1) Where contract is still executory i.e no part of illegal contract is yet carried into effect – in that case money paid or goods delivered may be recovered as law presumes there is still locus poenitentiae.

2) Where parties are not in pari delicto – less guilty may recover money paid or property transferred.

**

Q-uando lex aliquid alicui, concedit, concedere videtur id sine quo res ipsa esse non potest

Gosh that’s long, isn’t it ? Long but not at all difficult to grasp. It means : when the law gives a man anything, it gives him that also without which the thing itself cannot exist. The principle embodied in Section 482 of the CrPC regarding inherent powers of the Court to make such orders as may be necessary to give effect to any order under the code, or to prevent abuse of the process of any Court, or otherwise secure the ends of justice is based on this maxim. (Dinesh Dutt Joshi v. State of Rajasthan, (2001) 8 SCC 570).

 

**

R-eason to believe

I have a reason to believe that “reason to believe” is important for any law student/lawyer to grasp.

When can a person be said to have a reason to believe though?

Section 26 of the IPC provides the yardstick. A person is said to have a “reason to believe” a thing if he has sufficient cause to believe that thing.  The words “Reason to believe” contemplate an objective determination based on intelligent care and deliberation involving judicial review, as distinguished from purely subjective consideration.

Another interesting definition is that given by SC in Ganga Saran v. ITO (AIR 1981 SC) wherein the court was examining whether the Income Tax officer had a “reason to believe” that some income of the assesse had escaped assessment and the same was due to omission or failure on part of assesse to make the necessary disclosures. In this regard the court held :  “If there is no rational and intelligible nexus between the reasons and the belief, so that, on such reasons, no one properly instructed on facts and law could reasonably entertain the belief, the conclusion would be inescapable that the Income Tax Officer could not have reason to believe (“RTB”)

Lastly, another facet of RTB is that it is much stronger than ‘suspect’ and it involves the necessity of showing that the circumstances were such that a reasonable man (objective test) must have felt convinced in that belief.

 

**

S-avings Clause

A Saving clause is an exception of a special thing out of general things mentioned in a statute. A “Saving clause” is ordinarily a restriction in a repealing act and saves rights, pending proceedings, penalties etc. from the annihilation which would result from unrestricted repeal.

Section 6 of the General Clauses Act, like a knight in shining armour, is a statutory saving clause which generally preserves the acts done/liabilities/obligations incurred/on-going proceedings under the older (repealed) act from collapsing, unless of course there is something to the contrary in the repealing law. A repealing law would also generally provide for a saving clause and provide the extent of earlier actions/proceedings/rights saved by the new statute and also which law is to govern such actions. Whether the new (repealing) law is to govern such earlier proceedings or not, has led to a lot of litigation in the past and presents some vexing legal issues.

In a legal instrument, a saving clause is a clause exempting something which might otherwise be subjected to the operation of the instrument. In an act of parliament, a saving clause which is repugnant to the body of such act is void.

 

**

T-riple Talaq

A narrowly divided Supreme Court in Shayara Bano held that the despicable practice of instantaneous triple talaq (talaq – ul – biddat) which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was legally invalid.

Justice Nariman attacked the practice of Instant Triple Talaq on the grounds of Arbitrariness and held it to be violative of Article 14 of the Constitution. Justice Nariman cited plethora of judgments of the Apex Court which have held that Arbitrariness is nothing but an anathema to Equality. The practice of Instant Triple Talaq which rests solely on the whims of a Muslim man do not deserve the sanctity of law and was rightly held to be falling foul with the test of Arbitrariness as put forth in E. P. Royappa v. State of T. N. In the present day and time restriction of Article 14 to mere test of classification would amount restriction of what is actually a very wide right, which allows the State to not only omit but also act. Further Article 14 forms with Article 19 and Article 21 this holy troika which gets destroyed if even any one of them is disturbed. Thus, Hon’ble Supreme Court’s application of Article 14 and eventual striking down of Instant Triple Talaq does a great service to the rights movement in India.

As we talk, A bill by the name of Muslim Women (Protection of Rights on Marriage) Bill, 2017 has been passed by the Lok Sabha. This Bill, which makes instant triple talaq or talaq-e-biddat a punishable offence (cognizable and non-bailable with imprisonment upto 3 years), follows the above Supreme Court judgment.  It also strengthens maintenance rights in the event of such a pronouncement (which needless to state, would be illegal and of no legal consequence).

 

**

U-t res magis valeat quam pereat:

That thing may rather have effect than be destroyed. The provision of a statute must be so construed as to make it effective and operative. In other words, the maxim means that it is better to validate a thing than to invalidate it. There is a presumption that the legislature does not exceed its jurisdiction.

In Constitutional Law parlance, the Presumption of Constitutionality of a statue or provision is invoked when there are two possible interpretations for a statute, one rendering the statute in conformity with the Constitution, while the other renders it ultra vires.  The court would lean in favour of the former and the burden would be on the person arguing that it is unconstitutional to demonstrate the same. 

**

V-igilantibus et non dormientibus jura subveniunt- 

Equity comes to the aid of the vigilant and not the slumbering. This is one of the main guiding principles of the law of limitation.

**

W-ednesbury principle of unreasonableness.

A standard of ‘unreasonableness’ invoked while embarking upon judicial review of a state/government authority’s decision. A decision or reasoning behind it can be termed –  Wednesbury unreasonable (or irrational) only if it is so manifestly unreasonable that no reasonable person acting reasonably could have made it. (Associated Provincial Pictures v Wednesbury Corporation (1948) 1 KB 223). This benchmark is a much higher threshold than usual and much stricter than merely showing that the decision was unreasonable. This higher standard is insisted upon to give the executive authorities/state ample elbow room to take decisions and reflect court’s approach in trying to steer clear of policy decisions and their examining, lest the Courts be accused of judicial over-reach and activism.

**

X-Y-Chromosome defence

In criminal law whereby the male defends his criminal behaviour as it being due to his genetic abnormality or having an extra Y chromosome which causes him to have uncontrollable aggressive impulse.

No available instances of its application in the Indian Law. This, by itself, may not satisfy the tests of legal insanity, as it prevails in India. However, in certain cases, might aid the defence of grave and sudden provocation (and act, therefore, as a mitigator) however, the same is also doubtful. India doesn’t seem to have developed its jurisprudence on defences relating to diminished responsibility/impaired impulse control, however, a study of the jurisprudence elsewhere is interesting and important if our criminal law is also to evolve.

**

Y-ear to Year Tenancy –

Well, the meaning is self-evident. A tenancy like this is required to be registered in order to create any legal rights. (Section 17 of the Registration Act, 1908)

**

Z-ero Hour

The time immediately following the question in the Houses of the Parliament or the State Legislature is popularly known as Zero Hour, in one sense because it is an non-existent hour as it starts at 12 noon which is a Zero Hour of the day and the other because of its duration generally being of an hour. Any member may rise and ask questions on public matters to the Government and raise issues of national importance.

**

 

 

 

 

 

 

 

2 comments

  1. Sir plz give some approach for studying for judiciary together with LLB studies. It will be greatful

    On Dec 28, 2017 7:47 PM, “Rahul’s IAS – The Official Blog” wrote: > > TheJurist posted: “Why an A to Z list of law/legal concepts/judgments etc? And why now? As somebody wise said: A rear-view mirror is the best kind of crystal ball. Sometimes ‘looking back’ is ‘looking ahead’. Our choices and the effects we produce have their causes in the” >

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s