Anantha-Law College 4-Semester-Material-Combined

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Anantha LAW 4 semester material Combined
Labour Laws (Osmania University)
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LABOUR LAW - II
4 t h SEMESTER
Harinath J, Radhakrishna ANV and Aravinda Reddy 1

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LABOUR LAW-II STUDY MATERIAL

Sl IMPORTANT SHORT QUESTIONS RE
No P
1 DEFINITION OF WAGES 3
2 DISCUSS THE SET ON AND SET OFF OF ALLOCABLE SURPLUS IN THE PAYMENT OF 4
BONUS ACT, 1965
3 LABOUR WELFARE 4
4 SOCIAL SECURITY LEGISLATION 5
5 DISABLEMENT (PARTIAL AND TOTAL) 4
6 EXPLAIN SALIENT FEATURES OF THE MATERNITY BENEFIT ACT, 1961 6
IMPORTANT LONG QUESTIONS
7 DISCUSS THE CONCEPT OF WAGES AND WHAT ARE THE CONSTITUTIONAL GOALS WITH 7
REGARD TO WAGES? (LIVING & FAIR WAGES)
8 DEFINE WAGES AND WHAT ARE THE AUTHORIZED DEDUCTIONS UNDER THE PAYMENT 3
OF WAGES ACT, 1936
9 VARIOUS BENEFITS AVAILABLE UNDER THE ESI ACT, 1948 AND UNDER WHAT 4
CONDITIONS
10 EMPLOYER'S LIABILITY TO PAY THE COMPENSATION FOR THE INJURIES CAUSED IN THE 4
COURSE OF EMPLOYMENT
11 DEFINE GRATUITY. SALIENT FEATURES OF PAYMENT OF GRATUITY ACT, 1972 5
12 SALIENT FEATURES OF THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986 3
IMPORTANT CASES
13 DEDUCTIONS FOR DAMAGES OR LOSS [SEC 7(2)(c) OF THE PAYMENT OF WAGES ACT, 2
1936]
14 ANY CONTRACT FOR LESS THAN MINIMUM WAGE IS NULL AND VOID - SEC 25 OF THE 4
MINIMUM WAGES ACT, 1936
15 EMPLOYEE MET WITH AN ACCIDENT WHILE GOING TO OR RETURNING FROM DUTY 4
DOCTRINE OF NOTIONAL EXTENSION - SUPERINTENDING ENGINEER, T.N.S.E.B. v.
SANKUPATHY
16 A CONTRACT (OR CASUAL) WORKER DIES WHILE DOING THE WORK 2
17 DISMISSAL DURING ABSENCE OF PREGNANCY - SEC 12 OF THE MATERNITY BENEFIT 3
ACT, 1961
18 PROHIBITION OF CHILD LABOUR - SEC 3 OF THE Child and Adolescent Labour 4
(Prohibi琀椀on and Regula琀椀on) Act, 1986
19 NO WOMAN IS ALLOWED TO WORK BETWEEN 7 PM AND 6 AM - SECTION 66(b) OF 4
THE FACTORIES ACT, 1948
20 WAGES IN-KIND - SECTION 11 OF THE MINIMUM WAGES ACT, 1948 2
21 AN EMPLOYEE WHO SERVED IN AN ESTABLISHMENT FOR LESS THAN 5 YEARS CLAIMED 2
GRATUITY

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LL.B. IV SEMESTER
PAPER-I: LABOUR LAW-II SYLLABUS

Unit-I: The Remunera琀椀ve Aspects – Wages – Concepts of wages - Minimum, Fair, Living
Wages - Wage and Industrial Policies - Whitley Commission Recommenda琀椀ons - Provisions
of Payment of Wages Act 1936 – Timely payment of wages - Authorized deduc琀椀ons –
Claims - Minimum Wages Act 1948 - De昀椀ni琀椀ons - Types of wages - Minimum rates of
wages - Procedure for 昀椀xing and revising Minimum Wages – Claims -Remedy.
Unit-II: Bonus – concept - Right to claim Bonus – Full Bench formula - Bonus Commission
- Payment of Bonus Act 1965 - Applica琀椀on – Computa琀椀on of gross pro昀椀t, available,
allocable surplus - Eligibility of Bonus - Disquali昀椀ca琀椀on of Bonus - set on – set-o昀昀 of
allocable surplus- Minimum and Maximum Bonus-Recovery of Bonus.
Unit-III: Employees Security and Welfare aspect - Social Security - Concept and meaning -
Social Insurance - Social Assistance Schemes. Social Security Legisla琀椀ons - Law rela琀椀ng to
workmen’s compensa琀椀on – The Employee’s Compensa琀椀on Act 1923 – De昀椀ni琀椀ons -
Employer’s liability for compensa琀椀on - Nexus between injury and employment - payment
of compensa琀椀on - penalty for default - Employees State Insurance Act 1948 –Applica琀椀on -
Bene昀椀ts under the Act - Adjudica琀椀on of disputes and claims – ESI Corpora琀椀on.
Unit-IV: Employees Provident Fund and Miscellaneous Provisions Act 1952 –

Contribu琀椀ons -Schemes under the Act - Bene昀椀ts. The Maternity Bene昀椀t Act 1961 –
De昀椀ni琀椀ons - Applica琀椀on - Bene昀椀ts. The Payment of Gratuity Act 1972 – De昀椀ni琀椀ons –
applica琀椀on - Payment of gratuity - eligibility – forfeiture – Nomina琀椀on – Controlling
authori琀椀es.
Unit-V: The Factories Act 1948 - Chapters dealing with Health, Safety and Welfare of
Labour. Child Labour - Rights of child and the Indian Cons琀椀tu琀椀on - Salient features of the
Child Labour (Prohibi琀椀on and Regula琀椀on) Act 1986 – The Equal Remunera琀椀on Act, 1976.
Suggested Readings: 1. S.N.Misra, Labour and Industrial Laws, Central law publica琀椀on
2. V.G. Goswami, Labour and Industrial Laws, Central Law Agency. 3. Khan & Kahan,
Labour Law-Asia Law house, Hyderabad 4. K.D. Srivastava, Payment of Bonus Act, Eastern
Book Company 5. K.D. Srivastava, Payment of Wages Act 6. K.D. Srivastava, Industrial
Employment (Standing Orders) Act 1947 7. S.C.Srivastava, Trea琀椀se on Social Security 8.
Sukumar Singh, Labour Economics, Deep& Deep, New Delhi 9. V.J.Rao, Factories Law

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SHORT ANSWERS
1. De昀椀ni琀椀on of Wages.
Answer: De昀椀ni琀椀on:
 In economics, the price paid to labour for its contribu琀椀on to the process of produc琀椀on is
called wages.
 “A wage may be de昀椀ned as the sum of money paid under contract by an employer to the
worker for services rendered.” -Benham
 “Wages is the payment to labour for its assistance to produc琀椀on.” -A.H. Hansen
 ‘Wage rate is the price paid for the use of labour.” -Mc Connell.
 Cambridge dic琀椀onary ‘the money earned by an employee, esp. when paid for the hours
worked’.
Definition of Wages as per Section 2(h) of the Minimum Wages Act, 1948,
"wages" means all remunera琀椀on, capable of being expressed in terms of money, which would, if
the terms of the contract of employment, express or implied, were ful昀椀lled, be payable to a
person employed in respect of his employment or of work done in such employment, and includes
house rent allowance but does not include
(i) the value of –
(a) any house- accommoda琀椀on, supply of light, water, medical a琀琀endance, or
(b) any other amenity or any service excluded by general or special order of the appropriate
Government;
(ii) any contribu琀椀on paid by the employer to any Pension Fund or Provident Fund or under any
scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the
nature of his employment; or
(v) any gratuity payable on discharge.
Definition of Wages as per Section 2 (vi) of the Payment of Wages Act, 1936,
“wages” means all remunera琀椀on, whether by way of salary, allowances, or otherwise, expressed
in terms of money or capable of being so expressed which would, if the terms of employment,
express or implied, were ful昀椀lled, be payable to a person employed in respect of his employment
or of work done in such employment,
And includes—
(a) Any remunera琀椀on payable under any award or se琀琀lement between the par琀椀es or order of a
Court;
(b) Any remunera琀椀on to which the person employed is en琀椀tled in respect of over琀椀me work or
holidays or any leave period;
(c) Any addi琀椀onal remunera琀椀on payable under the terms of employment (whether called a bonus
or by any other name);
(d) Any sum which by reason of the termina琀椀on of employment of the person employed is payable
under any law, contract or instrument which provides for the payment of such sum, whether with
or without deduc琀椀ons, but does not provide for the 琀椀me within which the payment is to be made;
(e) Any sum to which the person employed is en琀椀tled under any scheme framed under any law for
the 琀椀me being in force,
But does not include—
(1) any bonus (whether under a scheme of pro昀椀t sharing or otherwise) which does not form part
of the remunera琀椀on payable under the terms of employment or which is not payable under any
award or se琀琀lement between the par琀椀es or order of a Court;

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(2) the value of any house accommoda琀椀on, or of the supply of light, water, medical a琀琀endance or
other amenity or of any service excluded from the computa琀椀on of wages by a general or special
order of 2 [appropriate Government];
(3) Any contribu琀椀on paid by the employer to any pension or provident fund, and the interest
which may have accrued thereon;
(4) Any travelling allowance or the value of any travelling concession;
(5) Any sum paid to the employed person to defray special expenses entailed on him by the nature
of his employment; or
(6) Any gratuity payable on the termina琀椀on of employment in cases other than those speci昀椀ed in
sub-clause (d).
Wages include:
• Salary,
• Allowances,
• Award or se琀琀lement,
• Any sum for termina琀椀on,
• Over 琀椀me,
• Leave wage.
Wages do not include:

• Bonus,
• Travelling allowance,
• Provident fund,
• Contribu琀椀on,
• Gratuity,
• Value for house accommoda琀椀on, or supply of light,
• Water and medical a琀琀endance of any service.
2. DISCUSS THE SET ON AND SET OFF OF ALLOCABLE SURPLUS IN THE PAYMENT OF BONUS ACT,
1965.
Answer: Bonus is a cash payment made to employees in addi琀椀on to wages. It is not an ex-gra琀椀a
payment. Bonus di昀昀ers from wages in that it does not rest on contract, but s琀椀ll payments for the
bonus are made because legally due, but which par琀椀es do not contemplate inde昀椀nitely.
As per Section 4 of the Payment of Bonus Act, 1965 “allocable surplus” means-
(a) in rela琀椀on to an employer, being a company other than a banking company which has not
made the arrangements prescribed under the Income-tax Act for the declara琀椀on and payment
within India of the dividends payable out of its pro昀椀ts in accordance with the provisions of sec琀椀on
194 of that Act, sixty-seven per cent of the available surplus in an accoun琀椀ng; year;
(b) in any other case, sixty per cent of such available surplus.
Section10, Payment of minimum bonus. —Subject to the other provisions of this Act,
every employer shall be bound to pay to every employee in respect of the accoun琀椀ng year
commencing on any day in the year 1979 and in respect of every subsequent accoun琀椀ng year, a
minimum bonus which shall be 8.33 per cent of the salary or wage earned by the employee during
the accoun琀椀ng year or one hundred rupees, whichever is higher, whether or not the employer has
any allocable surplus in the accoun琀椀ng year: Provided that where an employee has not completed
昀椀昀琀een years of age at the beginning of the accoun琀椀ng year, the provisions of this sec琀椀on shall
have e昀昀ec琀椀ng rela琀椀on to such employee as if for the words “one hundred rupees”, the words
“sixty rupees” were subs琀椀tuted.

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Section 11, Payment of maximum bonus. —(1) Where in respect of any accoun琀椀ng year
referred to in sec琀椀on 10, the allocable surplus exceeds the amount of minimum bonus payable to
the employees under that sec琀椀on, the employer shall, in lieu of such minimum bonus, be bound to
pay to every employee in respect of that accoun琀椀ng; year bonus which shall be an amount in
propor琀椀on to the salary or wage earned by the employee during the accoun琀椀ng year subject to a
maximum of twenty per cent, of such salary or wage.
(2) In compu琀椀ng the allocable surplus under this sec琀椀on, the amount set on or the amount set o昀昀
under the provisions of sec琀椀on 15 shall be taken into account in accordance with the provisions of
that sec琀椀on.
Section 15, Set on and set off of allocable surplus. — (1) Where for any accoun琀椀ng
year, the allocable surplus exceeds the amount of maximum bonus payable to the employees in
the establishment under sec琀椀on 11, then, the excess shall, subject to a limit of twenty per cent of
the total salary or wage of the employees employed in the establishment in that accoun琀椀ng year,
be carried forward for being set on in the succeeding accoun琀椀ng year and so on up to and inclusive
of the fourth accoun琀椀ng year to be u琀椀lized for the purpose of payment of bonus in the manner
illustrated in the Fourth Schedule.
(2) Where for any accoun琀椀ng year, there is no available surplus or the allocable surplus in respect
of that year falls short of the amount of minimum bonus payable to the employees in the
establishment under sec琀椀on 10, and there is no amount of su昀케cient amount carried forward and
set on under sub-sec琀椀on (1) which could be u琀椀lized for the purpose of payment of the minimum
bonus, then, such minimum amount or the de昀椀ciency, as the case may be, shall be carried forward
for being set o昀昀 in the succeeding accoun琀椀ng year and so on up to and inclusive of the fourth
accoun琀椀ng year in the manner illustrated in the Fourth Schedule.
(3) The principle of set on and set o昀昀 as illustrated in the Fourth Schedule shall apply to all other
cases not covered by sub-sec琀椀on (1) or sub-sec琀椀on (2) for the purpose of payment of bonus under
this Act.
(4) Where in any accoun琀椀ng year any amount has been carried forward and set on or set o昀昀 under
this sec琀椀on, then, in calcula琀椀ng bonus for the succeeding accoun琀椀ng year, the amount of set on or
set o昀昀 carried forward from the earliest accoun琀椀ng year shall 昀椀rst be taken into account.
3. LABOUR WELFARE.
Answer: Labour Welfare – Meaning
Labour welfare relates to taking care of the well-being of workers by employers, trade unions,
governmental and non-governmental ins琀椀tu琀椀ons and agencies. Welfare includes anything that is
done for the comfort and improvement of employees and is provided over and above the wages.
Welfare helps in keeping the morale and mo琀椀va琀椀on of the employees high to retain the
employees for a longer dura琀椀on. The welfare measures need not be in monetary terms only but in
any kind/forms. Employee welfare includes monitoring of working condi琀椀ons, crea琀椀on of
industrial harmony through infrastructure for health, industrial rela琀椀ons and insurance against
disease, accident and unemployment for the workers and their families.
According to Interna琀椀onal Labour Organiza琀椀on, labour welfare can be de昀椀ned as a term, which is
understood to include such services, facili琀椀es, and ameni琀椀es as may be established in or in the
vicinity of undertakings to enable the persons employed in them to perform their work in healthy,
congenial surroundings and to provide them with ameni琀椀es conducive to good health and high
morale.

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Oxford dic琀椀onary- “Labour welfare is e昀昀orts to make life worth living for workmen.” The need for
providing such services and facili琀椀es arise from the social responsibility of industries, a desire for
upholding democra琀椀c values and a concern for employees. Welfare includes anything that is done
for the comfort and improvement of employees and is provided over and above the wages.
Labour welfare entails all those ac琀椀vi琀椀es of the employer, which are directed towards providing
the employees with certain facili琀椀es and services in addi琀椀on to wages or salaries. Labour welfare
implies providing be琀琀er work condi琀椀ons, for example, proper ligh琀椀ng, cleanliness, low noise, etc.
and ameni琀椀es viz. recrea琀椀on, housing, educa琀椀on, sports, gym etc. Arthur James Todd- “Labour
welfare means anything is done for the comfort and improvement, intellectual and social, of the
employees over and above the wages paid which is not a necessity of the Industry.”
Scope of the Labour Welfare:
Welfare service are divided into two groups – (a) Welfare services within the premises of the
factory (intramural) such as – drinking and washing facili琀椀es, bathing, crèche, canteen, restroom,
shelter, gym, preven琀椀on of fa琀椀gue and safety devices and
(b) Welfare ameni琀椀es outside the establishment (extra-mural) include social security measures
like social insurance, social assistance, recrea琀椀on, sports, workers’ educa琀椀on, etc.
It also includes coopera琀椀ve credit socie琀椀es, transporta琀椀on, and housekeeping. Scope of labour
welfare takes care of workers’ life from cradle to grave as employees’ state insurance scheme
provides medicine to a worker child and provides funeral bene昀椀t to a worker a昀琀er his last minutes
in this world. Scope of labour welfare includes statutory and non-statutory welfare ameni琀椀es
which are also increasing day-by-day and in most of the workers’ welfare is by and large
acceptable to society.
On the whole labour, welfare aims at minimizing stress and strains of industrial workers. It
observes that workers get a clean and neat environment of work. They should get safe working
condi琀椀ons with minimum hazards of work life. They should be able to live a life with dignity,
status and self-respect Scope di昀昀ers from industry-to-industry and country-to-country.
As per 1981 census, women workers cons琀椀tute about 19 per cent of the total workforce (i.e., 45
million out of 222 million). Out of 45 million, a small frac琀椀on of about 2 million women workers
were employed in the organized sector. They were not covered by any protec琀椀ve labour
legisla琀椀on.
Majority of women are employed in the co琀琀on tex琀椀le, bide making, garment industries, rice
mills, tobacco cu琀�ng, Cashewnut, matches, construc琀椀on work, planta琀椀ons, and household and
small-scale industries. On account of scien琀椀昀椀c and technological development of the country,
there is an increase in the employment of women in electronics industries.
4. SOCIAL SECURITY LEGISLATION.

Answer:
What is Social Security?
 any of the measures established by legisla琀椀on to maintain individual or family income or
to provide income when some or all sources of income are disrupted or terminated or
when excep琀椀onally heavy expenditures have to be incurred (e.g., in bringing up children
or paying for health care)

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 social security may provide cash bene昀椀ts to persons faced with sickness and disability,
unemployment, crop failure, loss of the marital partner, maternity, responsibility for the
care of young children, or re琀椀rement from work
 Social security bene昀椀ts may be provided in cash or kind for medical need, rehabilita琀椀on,
domes琀椀c help during an illness at home, legal aid, or funeral expenses
 It acts as a facilitator – it helps people to plan their own future through insurance and
assistance.
History of Social security
 Germany was the 昀椀rst country to introduce Social security scheme (1883)
 each member of a par琀椀cular trade (blacksmiths, painters, weavers etc.) was required to
contribute at regular intervals;
 Money from this fund was used for food, lodging, hospital and funeral expenses of aged
and disabled members.
 In the USA, the Social Security Act came into existence in 1935.
Social Security in India
 India has always had a Joint Family system that took care of the social security needs.
 However, with rising of migra琀椀on, urbaniza琀椀on, nuclear families and demographic
changes, Joint family system has declined. Hence we need a formal system of social
security.
SOCIAL SECURITY LAWS in India
1. Employees’ State Insurance Act, 1948 (ESI Act)

 covers factories and establishments with 10 or more employees
 Provides medical care to employees and their families.
 Provides cash bene昀椀ts during sickness and maternity
 Monthly pension a昀琀er death or permanent disability.
2. Employees’ Provident Fund Act, 1952
 Applies to speci昀椀c scheduled factories and establishments employing 20 or more
employees and ensures terminal bene昀椀ts to provident fund, superannua琀椀on pension, and
family pension in case of death during service.
3. Workmen’s Compensa琀椀on Act, 1923 (WC Act)
 Requires payment of compensa琀椀on to the workman or his family in cases of employment-
related injuries and occupa琀椀onal diseases resul琀椀ng in death or disability.
4. Maternity Bene昀椀t Act, 1961 (M.B. Act)
 Provides for 12 weeks of wages, which is split up into two periods viz., pre-natal and post-
natal, during maternity as well as a paid leave in certain other related con琀椀ngencies.
5. Payment of Gratuity Act, 1972 (P.G. Act)
 Provides 15 days wages for each year of service to employees who have worked for 昀椀ve
years or more in establishments having a minimum of 10 workers.

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5. DISABLEMENT (PARTIAL AND TOTAL).

Answer: Par琀椀al Disablement – Sec琀椀on 2(1)(g) of the Employees Compensa琀椀on Act, 1923, de昀椀nes
par琀椀al disablement is of two kinds –
1. Temporary par琀椀al disablement.
2. Permanent par琀椀al disablement.
The test of such disablement is the reduc琀椀on in the earning capacity of the employee. If the
earning capacity of an employee is reduced in rela琀椀on to the employment he had been at the 琀椀me
of the accident resul琀椀ng in such disablement, it is temporary par琀椀al disablement. If the injury
caused by an accident results in the reduc琀椀on of the earning capacity in respect of employment
which the employee was capable of undertaking at the 琀椀me of the accident it is permanent par琀椀al
disablement.
Loss of earning capacity or the extent of it is a ques琀椀on of fact. It has to be determined by
taking into account the diminu琀椀on or destruc琀椀on of physical capacity as disclosed by the medical
evidence and then it is to be seen to what extent such diminu琀椀on or destruc琀椀on would reasonably
be taken to have disabled the a昀昀ected employee from performing the du琀椀es which an employee
of his class ordinarily performs.
In Sukhai vs. Hukum Chand Jute Mills Ltd., Sukhai was employed as a cop winder in the jute mill
of the respondent. On 16.12.1951 while he was at work his le昀琀 eye was injured by some 昀氀ying
Chinese clays balls. He was given 昀椀rst aid by the Chief Medical O昀케cer and then sent to the
Chinsurah Hospital where his eyeball was removed. He resumed his duty on 5.2.1952. He had
been in the employment of the respondent company and was earning his usual wages and could
do his usual work. On 4.6.1952, he made an applica琀椀on for compensa琀椀on for injury to his eye. He
described the injury as loss of vision of the le昀琀 eye because eyeball was removed. It was held that
the Court could make a “suspensory award.” A suspensory award could be made when the
present earning capacity of an employee was not a昀昀ected but was likely to a昀昀ect the capacity in
future.
Total Disablement : “Total disablement” is de昀椀ned in Sec琀椀on 2(1)(1) of the Act. When an
employee is incapacitated of doing any work which he was capable of performing at the 琀椀me of
accident resul琀椀ng in such disablement, it is total disablement. Incapacity for all work is di昀昀erent
from the incapacity for the work which an employee was doing at the 琀椀me of accident. It is
further provided in the Act that permanent total disablement shall be deemed to result from
every injury speci昀椀ed in Part I of Schedule I. It may also result from any combina琀椀on of injuries in
Part II of Schedule I, where the aggregate percentage of the loss of earning capacity, as speci昀椀ed
against those injuries amounts to one hundred per cent or more.
SCHEDULE I
[See sections 2(1) and (4)]
PART I
LIST OF INJURIES DEEMED TO RESULT IN PERMANENT TOTAL

DISABLEMENT
Serial Description of Injury Percentage of

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No. loss of earning

capacity
1. Loss of both hands or amputation at 100

higher sites.
2. Loss of a hand and a foot. 100
3. Double amputation through leg or 100

thigh, or amputation through leg or
thigh on one side and loss of other
foot
4. Loss of sight to such an extent as to 100

render the claimant unable to
perform any work for which eyesight
is essential
5. Very severe facial disfigurement..... 100
6. Absolute deafness...... 100

In Pratap Narain Singh Deo vs. Srinivasa, a carpenter su昀昀ered an injury in the course of his
employment which resulted in the amputa琀椀on of the le昀琀 hand above elbow. Since a carpenter
cannot work with one hand, disablement was held to be total and not par琀椀al.
LONG ANSWERS
6. EXPLAIN SALIENT FEATURES OF THE MATERNITY BENEFIT ACT, 1961.

Answer:
What is the Maternity Leave?
Maternity leave in India” is a paid leave of absence from work that allows women employees the
bene昀椀t of taking care of their newly born, and at the same 琀椀me retain their jobs.
India is a developing country, and our 昀椀rst Maternity leave Act was established back in 1961
called, The Maternity leave Bene昀椀t Act 1961. This Act ensured women employees get a paid leave
of 12 weeks post-delivery for taking care of the new-born. This Act applied to establishments with
ten plus employees. The Act applies to women employees on a contract, permanent basis, or
engaged with agencies.
The current employment scenario has changed, and we have a signi昀椀cant chunk of female
employees taking jobs. The maternity act was subject to change due to social & economic changes.
In 2017, The Maternity leave Act was revised as The Maternity Bene昀椀t (Amendment) Bill 2017.
The Act extends to the whole of India to all mines, planta琀椀ons, shops, establishments and
factories either in organized or unorganized sector in which 10 or more persons employed on any
day of the preceding twelve months. Any woman who has worked in the establishment for more
than 80 days is en琀椀tled to the maternity bene昀椀t.
1. Who can avail? All women who are employed in any capacity directly or through any agency
i.e. either on contractual or as consultant.

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2. Eligibility: For a woman employee to be eligible under this Act, she should have completed
working for 80 days in the current establishment in the last 12 months.
3. Dura琀椀on of maternity leave - The Maternity (Amendment) Bill 2017 has extended the earlier 12
weeks’ leave to 26 weeks. The pregnant employee can bifurcate the leave as post and pre-
delivery. 8 weeks of leave can opt before the delivery and remaining post-childbirth. For women
expec琀椀ng the third child, the maternity leave allo琀琀ed is 12 weeks.
4. Maternity bene昀椀t before expected delivery- This maternity bene昀椀t should not be availed before
weeks from the date of the expected delivery
5. Cri琀椀cal illness post-maternity: Pregnancy is a complicated process and could be life-threatening
too. The Maternity leave Amendment Bill 2017 allows a bene昀椀t of one month for women who are
su昀昀ering from cri琀椀cal circumstances like – Pre-mature delivery, miscarriage & medical termina琀椀on
of pregnancy.
6. Maternity bene昀椀t for a woman having two or more children- If a woman has two or more
children, the maternity bene昀椀t will con琀椀nue to be 12 weeks, which cannot be availed before 6
weeks from the date of the expected delivery.
7. Maternity bene昀椀t to adop琀椀ng mother and commissioning mother- A woman who legally adopts
a child below the age of three months or a commissioning mother (the woman who has donated
her egg to another woman) shall be en琀椀tled to maternity bene昀椀t for a period of 12 weeks from
the date the child is handed over to the adop琀椀ng mother or the commissioning mother.
8. Right to Payment of maternity bene昀椀t- Every woman shall be en琀椀tled to, and her employer
shall be liable for, the payment of maternity bene昀椀t at the rate of the average daily wage for the
period of her actual absence, that is to say, the period immediately preceding the day of her
delivery, the actual day of her delivery and any period immediately following that day.
9. Provision for Crèche facility- Every establishment with 50 or more employees to provide crèche
facili琀椀es within a prescribed distance. The woman will be allowed four visits to the crèche in a day.
This will include the interval of rest allowed to her.
10. Op琀椀on to Work from Home- An employer may permit a woman to work from home. This
would apply if the nature of work assigned to the woman permits her to work from home. This
op琀椀on can be availed of, a昀琀er the period of maternity leave, for a dura琀椀on that is mutually
decided by the employer and the woman.
11. Informing women employees of the right to maternity leave- Every establishment t should
in琀椀mate a woman at the 琀椀me of her appointment of the maternity bene昀椀ts available to her. Such
communica琀椀on must be in wri琀椀ng and electronically.
12. Penalty for Contraven琀椀on of the Act by the employer- If any employer fails to pay any amount
of maternity bene昀椀t to a woman en琀椀tled under this Act or discharges or dismisses such woman
during or on account of her absence from work or her pregnancy, shall be punishable with
imprisonment which is not less than 3 months but which may extend to one year and with a 昀椀ne
of not less than Rs. 2000/- which may exceed to Rs. 6000/-.
Norms under the Maternity Leave:
The Act states, the employer should not give a pregnant employee di昀케cult tasks, including long-
standing working hours, ten weeks before the delivery, such that it might a昀昀ect both Mother and
child.
The employer should ensure the health and safety of the female employer and mandates that she
should not be involved in any work six weeks following the delivery as well as miscarriage.
The law also states that the employer cannot dismiss or discharge a female employer during the
maternity leave period.
In an establishment of 50 plus employees, a Crèche facility is to be provided by the employer.
When the female employee comes back to work a昀琀er maternity leave, she can avail of the crèche

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facili琀椀es. The Act also permits the female employee to visit the crèche four 琀椀mes during the
regular working hours, including her regular rest intervals.
If an employer does not adhere to the Maternity Act, there are severe repercussions. The penalty
to an employer for non-acceptance of the Act is a 昀椀ne of Rs. 5000/- or imprisonment which can
extend to a year or with both.
7. DISCUSS THE CONCEPT OF WAGES AND WHAT ARE THE CONSTITUTIONAL GOALS WITH
REGARD TO WAGES? (LIVING & FAIR WAGES).
Answer:
Introduction -
Wage is the remunera琀椀on to labour for the work done for the service rendered by it to the
employer. There are di昀昀erent theories on the concept of wages as enunciated by economists and
sociologists, which explain various aspects of wage problems. However, these theories are not
applicable in all circumstances.
Meaning and Definition of Wage
According to Sec琀椀on 2(h) of the Minimum wages Act, 1948 the term "wages" means all
remunera琀椀on capable of being expressed in terms of money which would if the terms of the
contract of employment express or implied were ful昀椀lled be payable to a person employed in
respect of his employment or of work done in such employment and includes house rent
allowance but does not include –
(i) the value of –
(a) any house accommoda琀椀on supply of light water medical a琀琀endance or
(b) any other amenity or any service excluded by general or special order of the appropriate
government;
(ii) any contribu琀椀on paid by the employer to any person fund or provident fund or under any
scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the
nature of his employment; or
(v) any gratuity payable on discharge;
Concepts of Wages
Broadly speaking, wages can be classi昀椀ed into the following categories:
1. Living Wage
2. Fair Wage
3. Minimum Wage
1. Living Wage -
The concept of "Living wage" is the wage rate which prevails in most of the economically
advanced countries. The term Living Wage has not been de昀椀ned under the Minimum wages Act,
1948. South Australian Act of 1912 de昀椀nes it as 'Living Wage means a sum su昀케cient for the normal
and reasonable needs of the average employee living in a locality, where the work under
considera琀椀on is done or is to be done.

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Jus琀椀ce Higgins of the Australian Commonwealth Court of Concilia琀椀on de昀椀ned the living wage
as one appropriate for the normal needs of the average employee, regarded as a human being
living in a civilized society. The living wage must provide not merely for absolute essen琀椀als such
as food, shelter, and clothing but for the condi琀椀on of frugal comfort, es琀椀mated by current human
standard.
Living wages are wages without which working people cannot live and perform their du琀椀es as
a ci琀椀zen. It varies from country to country depending upon the price level of necessaries of life,
and it is determined by the socio-economic condi琀椀ons of a par琀椀cular country.
The living wage should enable the wage earner to provide for himself and his family not
merely the bare essen琀椀als of food, clothing and shelter but the measure of frugal comfort
including educa琀椀on for the children protec琀椀on against ill health, requirements for essen琀椀al social
needs and a measure of insurance against the more important misfortune including old age.
In India, there is no statutory de昀椀ni琀椀on for the term 'living wage'. According to Ar琀椀cle 43
(DPSP) of the Indian Cons琀椀tu琀椀on, the State shall endeavour to secure to all workers living wages,
condi琀椀ons of ensuring a decent standard of life and full enjoyment of leisure and social and
cultural opportuni琀椀es.
2. Fair Wage -
A fair wage is a mean between the living wage and the minimum wage. A fair wage is related
to fair work-load and the earning capacity. It can say that it is more than minimum wage but less
than the living wage. It may roughly be said to approximate to the need-based minimum, in the
sense of the wage which is adequate to cover the normal needs of the average employee regarded
as a human being in a civilized society. A fair wage is 昀椀xed, taking into considera琀椀on, the present
economic posi琀椀on and further prospects of the Industry.
Between these two limits (Living Wage and the Minimum Wage) fair wage would depend upon
a considera琀椀on of certain factors namely -
A. The produc琀椀vity of Labour.

B. The prevailing rates of wages in the same industry for similar occupa琀椀ons in the same or
similar occupa琀椀ons in the same or neighbouring locali琀椀es;
C. The level of na琀椀onal income and its distribu琀椀on; and
D. The place of the industry in the economy of the country.
The Concept of fair wages, therefore, involves a rate su昀케ciently high to enable the worker to
provide a standard family with food, shelter, clothing, medical care and educa琀椀on for children
appropriate to his status in life but not at a rate exceeding the wage-earning capacity of the class
of establishment concerned. As 琀椀me passed and prices raise even the fair wage 昀椀xed for the 琀椀me
being tends to sag downwards and then revision becomes necessary.
3. Minimum Wage -
The term 'Minimum Wage' has not been de昀椀ned in the said Act ( Minimum Wages Act,
1948) The minimum wage is the lowest wage in the scale below which the e昀케ciency of a worker is
likely to be inspired. The minimum wage includes not only the bare physical necessi琀椀es but also a
modicum of comfort otherwise known as conven琀椀onal necessi琀椀es. The Minimum wages must,
therefore, provide not merely for the bare subsistence of life but also the preserva琀椀on of the
e昀케ciency of the worker. For this purpose, the minimum wage must also provide for the same
measure of educa琀椀on, medical requirements, and ameni琀椀es. Therefore any employer who is

lOMoARcPSD|28401756
unable to pay this minimum wage to workers has no right to exist. Where a person provides
labour or service to another for remunera琀椀on which is less than the minimum wages, such labour
is 'forced labour within the meaning of Ar琀椀cle 23 of the Indian Cons琀椀tu琀椀on and thereby en琀椀tles
the person to invoke Ar琀椀cle 32 or Ar琀椀cle 226 of the Cons琀椀tu琀椀on of India.
The Concept of fair wages was to be dynamic. There is no reason to assume that fair wages 昀椀xed
years ago should con琀椀nue to be fair wages for all 琀椀me, and any 昀椀xa琀椀on of minimum wages,
should be taken not as minimum wages but as fair wages because it is above the fair wages once
昀椀xed.
Cons琀椀tuents or Components of Minimum Wage -

According to Sec琀椀on 4 of the said Act, (Minimum Wages Act, 1948) consists of the following:
(1) Any minimum rate of wages 昀椀xed or revised by the appropriate government in respect of
scheduled employments under sec琀椀on 3 may consist of –
(i) a basic rate of wages and a special allowance at a rate to be adjusted at such intervals and
in such manner as the appropriate government may direct to accord as nearly as prac琀椀cable with
the varia琀椀on in the cost of living index number applicable to such workers;
(ii) a basic rate of wages with or without the cost of living allowance and the cash value of the
concessions in respect of suppliers of essen琀椀al commodi琀椀es at concession rates where so
authorized; or
(iii) an all-inclusive rate allowing for the basic rate the cost of living allowance and the cash
value of the concessions if any.
(2) The cost of living allowance and the cash value of the concessions in respect of supplies of
essen琀椀al commodi琀椀es at concession rate shall be computed by the competent authority at such
intervals and in accordance with such direc琀椀ons as may be speci昀椀ed or given by the appropriate
government.
8. DEFINE WAGES AND WHAT ARE THE AUTHORIZED DEDUCTIONS UNDER THE PAYMENT OF
WAGES ACT, 1936
Answer:
The Payment of Wages Act 1936 is one of the most important labour welfare legisla琀椀on which
helps to prevent exploita琀椀on of the labours. The Act allows deduc琀椀ons which can be made from
the wages payable to a worker. Sec琀椀on 7(3) of the Act lays down that the total amount of
deduc琀椀on which may be made under subsec琀椀on (2) in any wage period from the wages of any
employed person shall not exceed - (1) In case where such deduc琀椀ons are wholly or partly made
for payment to the co-opera琀椀ve socie琀椀es, 75% of such a wages, and (2) In other cases, 50% of such
wages. But any loss of wages the resul琀椀ng from the following imposi琀椀on shall not be deemed to
be deduc琀椀ons, namely -
(i) the withholding of increment or promo琀椀on (including stoppage of increment at e昀케ciency bar);
(ii) the reduc琀椀on to lower post or 琀椀me scale or a lower stage in scale; or
(iii) suspension,
But these penal琀椀es shall not be deemed to be deduc琀椀ons provided by the rules framed by the
employer for the imposi琀椀on of such penalty are in conformity with the rules framed by the State
Government in this behalf.

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Authorized deductions:
The list is exhaus琀椀ve and no other deduc琀椀on from wages is permissible. The act allows the
following deduc琀椀ons –
1. Fines Sec琀椀on 8-
Sec琀椀on 7(2)(a) of the said Act authorizes deduc琀椀on by way of 昀椀nes. Sec琀椀on 8 lays down the
rules for the imposi琀椀on of such 昀椀nes. Sec琀椀on 8 says that "昀椀ne shall be imposed on any employed
person in respect of such acts and omissions on his part, as the employer with the previous
approval of the State Government or the prescribed by no琀椀ce under Sec琀椀on 8(2).
The total amount of 昀椀ne which may be imposed in any wage period on any employed person
shall not exceed an amount equal to three per cent of the wages payable to him in respect of the
wage period.
2. Deduc琀椀ons for absence from duty Sec琀椀on 9 -

Sec琀椀on 7(2)(b) of the Act permits deduc琀椀ons for absence from duty. Authorizes the
employer to make a deduc琀椀on for absence from duty. Such a deduc琀椀on can be made only on
account of the absence of an employed person from the place or places, where according to the
terms of employment he is required to work, if he, though present in person refused to carry out
his work in pursuance of a stay in strike or any other cause which is not reasonable in the
circumstances. Similarly, tool down strike without any Just Cause amounts to absence from duty.
3. Deduc琀椀ons for damage to or loss of goods Sec琀椀on 10-

The act also authorizes the employer to a昀昀ect deduc琀椀ons for damage to or loss of goods.
According to Sec琀椀on 7(2)(c) If any money or goods entrusted to the employee is lost by his
negligence or default, the employer is en琀椀tled to deduct such loss.
4. Deduc琀椀ons for services rendered Sec琀椀on 11-

Sec琀椀on 7(2)(d) of the Act authorizes the employer to make deduc琀椀ons for house
accommoda琀椀on supplied by the government or any housing board set up under any law for the
琀椀me being in force (whether the government or the board is the employer or not) or any other
authority engaged in the business of subsidizing house-accommoda琀椀on which may be speci昀椀ed in
this behalf by the State Government by no琀椀昀椀ca琀椀on in the O昀케cial Gaze琀琀e.
5. Deduc琀椀ons for ameni琀椀es services Sec琀椀on 11-

As per Sec琀椀on 7(2)(e), the deduc琀椀ons may also be made for such ameni琀椀es and services supplied
by the employer as the State Government or the authorized person in this behalf authori琀椀es the
employer to provide ameni琀椀es or services. The word services for the above purpose do not
include the supply of tools and raw material required for the purpose of employment.
6. Deduc琀椀ons for recovery of advances Sec琀椀on 12-

As per Sec琀椀on 7(2)(f) of the Act authorizes the employer to make deduc琀椀ons for the advances
made by him. (Including advances for travelling allowance or conveyance allowance)
7. Deduc琀椀ons for recovery of loans Sec琀椀on 12-A-

Sec琀椀on 7(2)(昀昀) The employer may make deduc琀椀on for the recovery of loans together with
interest made from any fund cons琀椀tuted for the welfare of labour in accordance with the rules
approved by the State Government in this regard.

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8. Deduc琀椀ons for recovery of loans granted for house-building -

Sec琀椀on 7(2)(昀昀f) the deduc琀椀ons are also permi琀琀ed to be made for the recovery of loans and
interest granted for house-building or other purposes in accordance with the rules approved by
the State Government.
9. Deduc琀椀ons of income-tax payable by the employed person -

Sec琀椀on 7(2)(g) of the said Act permits an employer to make this deduc琀椀on subject to the
provisions of the Income Tax Act.
10. Deduc琀椀ons by the order of a court -

Sec琀椀on 7(2)(h) of the Act permits an employer to e昀昀ect any deduc琀椀on by the order of a
Court.
11. Deduc琀椀ons for provident fund -

Sec琀椀on 7(2)(i) The employer should deduct provident fund contribu琀椀ons from his
employee's salary and shall also make contribu琀椀ons from his share, which is mandatory.
12. Deduc琀椀ons for payments to co-opera琀椀ve socie琀椀es Sec琀椀on 13-

Sec琀椀on 7(2)(j) authorizes the deduc琀椀ons for payments to co-opera琀椀ve socie琀椀es.
13. Deduc琀椀ons with the consent of the employed Person -

As per Sec琀椀on 7(2)(k) of the Act authorizes such deduc琀椀ons may be made with the wri琀琀en
authoriza琀椀on of the person employed for payment of any premium on his life insurance policy to
the Life Insurance Corpora琀椀on Act of India or the purchase of securi琀椀es of the Government of
India or of any State Government or for being deposited in any Post O昀케ce Saving Bank in
furtherance of any savings scheme of any such government.
14. Deduc琀椀on for the Welfare Fund -

Sec琀椀on 7 (2) (kk) Deduc琀椀ons made with the wri琀琀en authoriza琀椀on of the employed person
for the payment of his contribu琀椀on to any fund cons琀椀tuted by the employer or a trade union
registered under the Trade Union act 1926 (16 of 1926) for the welfare of the employed persons or
the members of their families or both and approved by the State Government or any o昀케cer
speci昀椀ed by it in this behalf during the con琀椀nuance of such approval.
15. Trade Union Membership Fees:

Sec琀椀on 7(2) (kkk) Deduc琀椀ons made with the wri琀琀en authoriza琀椀on of the employed person
for payment of the fees payable by him for the membership of any trade union registered under
the Trade Union Act 1926 (16 of 1926).
16. Deduc琀椀ons for Fidelity Guarantee Bonds :

Sec琀椀on 7(2)(l) permits a deduc琀椀on for payment of insurance premium on Fidelity
Guarantee Bonds.
17. Deduc琀椀ons for recovery of losses sustained by a railway administra琀椀on -

Sec琀椀on 7(2)(m) permits this deduc琀椀on on account of acceptance by the employed person of
counterfeit or base coins or mu琀椀lated or forged currency notes.
18. Deduc琀椀on for Prime Minister's Na琀椀onal Relief Fund -

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The employee by wri琀琀en undertaking may authorize the employer to deduct some
amount from his wages towards the contribu琀椀on to the Prime Minister's Na琀椀onal Relief Fund or
such other Fund as the Central Government may by no琀椀昀椀ca琀椀on in the O昀케cial Gaze琀琀e specify.
9. VARIOUS BENEFITS AVAILABLE UNDER THE ESI ACT, 1948 AND UNDER WHAT CONDITIONS.
Answer: Many important Social Security Schemes had been introduced in our country before and
a昀琀er independence. ESI is one of the Social Security Schemes introduced by the Government. The
Employees’ State Insurance Act is legisla琀椀on which aims at bringing about social and economic
jus琀椀ce to the poor labour class of the land. It aims at the labour welfare.
Benefits under Section 46 of the ESI Act: The purpose of the ESI Act is to provide
bene昀椀ts as detailed in the Act par琀椀cularly in Sec琀椀on 46, to the insured persons or their
dependants. The Employees’ State Insurance Act, 1948 is one of the most important laws that
provide social security. It contains six kinds of ESI bene昀椀ts that injured employees can avail. The
following bene昀椀ts are provided under Sec琀椀on 46.
1. Sickness bene昀椀t Sec琀椀on 49: It is in the form of periodical payment to any insured person,
provided his sickness is cer琀椀昀椀ed by a duly appointed medical prac琀椀琀椀oner, or any person
having such quali昀椀ca琀椀ons and experience as may be speci昀椀ed by regula琀椀ons of the
Corpora琀椀on. Where provision is made for sick leave by standing order, the employer cannot
require the employee to seek sickness bene昀椀t provided under this sub-sec琀椀on.
2. Maternity Bene昀椀t (Sec琀椀on 50): This bene昀椀t in the form of periodical payment available to an
insured woman. It is payable in case of –
 Con昀椀nement, or
 Miscarriage, or
 Sickness arising out of pregnancy, or
 Premature birth of a child.
3. Disablement Bene昀椀t (Sec琀椀on 51): Any insured person shall be en琀椀tled to periodical
payments if:
 He su昀昀ers from disablement,
 The disablement results from an employment injury, and
 He sustained the employment injury as an employee under the condi琀椀on
men琀椀oned in the Act.
4. Dependants Bene昀椀t: This bene昀椀t is available to such dependants, of an insured person who
dies as a result of an employment injury sustained as an employee, as are en琀椀tled to
compensa琀椀on under this Act.
5. Medical Bene昀椀t (Sec琀椀on 57): Medical bene昀椀t is available to an injured person or to a
member of his family, where such bene昀椀t is extended to the members of his family. This
bene昀椀t is in the following forms:
 Out-pa琀椀ent treatment and a琀琀achment in the hospital or dispensary,
 By visits to the home of the insured, or
 As an in-pa琀椀ent in a hospital or other ins琀椀tu琀椀on.
6. Funeral expenses: Funeral expenses are payable to the eldest surviving member of the
family or to such person who incurs funeral expenses. The amount of such payment shall not
exceed such amounts as may be prescribed by the Central Government.
10. EMPLOYER'S LIABILITY TO PAY COMPENSATION FOR THE INJURIES CAUSED IN THE COURSE OF
EMPLOYMENT.
Answer: Introduction
An employer, in simple terms, is a person or legal en琀椀ty that controls or directs a servant or
worker under an expressive or implied contract of employment and pays him/her salary or wages

lOMoARcPSD|28401756
as considera琀椀on. Employers include everything from individuals hiring a babysi琀琀er to

governments and business which may hire thousands of employees. In most of the western
countries, Governments are the single largest employers, but most of the workforce is employed
in small and medium businesses in the private sectors.
Nature of Liability . — The Employees' Compensa琀椀on Act, 1923 creates a new type of liability.
It is not strictly a liability arising out of tort but is a sort of liability arising out of the rela琀椀onship of
the employer and the employee. An employer under this Act is liable to pay compensa琀椀on at a
rate 昀椀xed in the Act itself to any employee incapacitated by an accident arising out of and in the
course of his employment. The main principle governing the compensa琀椀on is not dependent on
the su昀昀ering caused to the employee or expenses incurred by him in his treatment but on the
di昀昀erence between his wage-earning capacity before and a昀琀er the accident. The liability for the
payment of compensa琀椀on is not dependent upon the neglect or wrongful act on the part of the
employer.
The doctrine of added peril .— The principle of added peril means that if an employee while
doing his employer's work, trade or business engages himself in some other work which he is not
ordinarily required to do under the contract of his employment and which act involves extra
danger, he cannot hold his master liable for the risk arising therefrom. The doctrine of added peril,
therefore, comes into play only when the employee is at the 琀椀me of mee琀椀ng the accident
performing his duty.
Employer's liability for compensation. — The liability of an employer to pay

compensa琀椀on is limited and is subject to the provisions of the Employees’ Compensa琀椀on Act,
1923, under Sec琀椀on 3(1) the liability of the employer to pay compensa琀椀on is dependent upon the
following four condi琀椀ons:
(1) The personal injury must have been caused to an employee;
(2) Such injury must have been caused by an accident;
(3) The accident must have arisen out of and in the course of employment; and
(4) The injury must have resulted either in death of the employee or in his total or par琀椀al
disablement for a period exceeding three days.
The employer shall not be liable to pay compensation in the following cases :
1. in respect of any injury which does not result in the total or par琀椀al disablement of the
employee for a period exceeding three days;
2. The injury is self-in昀氀icted.
3. The injury was caused due to the consump琀椀on of alcohol or drugs by the employee during
the 琀椀me of his work.
4. The wilful disobedience of the employee to an order expressly given, or to a rule expressly
framed, for the purpose of securing the safety of employees.
5. That the employee having known that certain safety-guards or safety devices are
speci昀椀cally provided for the purpose of securing the safety of the employee, wilfully
disregarded or removed the same
There are notable cases which dealt with the ma琀琀er of liability of the employer in providing
compensa琀椀on to his/her employee. One among them is Dhropadabai and Ors v. M/s Technocra昀琀
Toolings, in which the Court stated that the claimant is en琀椀tled to compensa琀椀on as the employee
took his last breath during the 琀椀me of his employment as well as at the place of his work. Even
though the cause of death has no connec琀椀on with his employment, the respondent is liable to pay
compensa琀椀on to the claimant as the death occurred during the employment of the deceased.
The Doctrine of Notional Extension: Ordinarily, a man’s employment does not begin un琀椀l
he has reached the place where he has to work and does not con琀椀nue a昀琀er he has le昀琀 the place of
his employment. The period of going to or returning from employment are generally excluded and

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are not within the course of employment. Travelling to and from is prima facie not in the course
of employment. But there may be a reasonable extension in both the 琀椀me and place and an
employee may be regarded as in the course of his employment even though he had not reached or
had le昀琀 his employer’s premises. It has been recognized 琀椀me and again that the sphere of an
employee’s employment is not necessarily limited to the actual place where he does his work. If
in going to or coming from his work he has to use an access which is part of his employer’s
premises, or which he is en琀椀tled to traverse because he is going to or coming from his work, he is
held to be on his master’s business while he is using that access.
Conclusion: It is common that whenever there arises an employer-employee rela琀椀onship, there

arise certain disputes among them as well. In such situa琀椀ons, the above-stated enactments
provide certain guidelines to both of them so that they can arrive at a conclusion as well as in a
se琀琀lement too. While looking into the liability of the employer for providing compensa琀椀on to the
employee, it will be clear that in one way or the other, the employee has undergone certain
injuries or damages. There are many companies which look a昀琀er their employees properly with
adequate facili琀椀es as well as compensa琀椀ons and rewards whenever necessary. But there are
certainly other areas wherein employees are treated in a much disappoin琀椀ng way. All such
statutes stand for the good running of a business organiza琀椀on as well as for building up healthy
rela琀椀on among the employer and employee as well. Hence, both of them must be aware of their
rights and responsibili琀椀es and not to violate the said statutes for their personal gains.
11. DEFINE GRATUITY. SALIENT FEATURES OF PAYMENT OF GRATUITY ACT, 1972.

Answer:
WHAT IS GRATUITY?
Gratuity is one of the most misunderstood and misconstrued components of a person’s salary. In
simple terms, it is a re琀椀rement bene昀椀t paid as gra琀椀tude to the employees who have rendered
con琀椀nuous service for at least 昀椀ve years to incen琀椀vize them so that they con琀椀nue working
e昀케ciently. It is an amount paid to an employee based on the dura琀椀on of his total service but an
employee becomes eligible only a昀琀er he has completed 5 years of his service. Gratuity is paid to
an employee when he either re琀椀res or his employment is terminated or he resigns or upon his
death. Gratuity is given the force of law by the Payment of Gratuity Act 1972, which is further
administered and enforced by the Central Government and the designated establishments under
its control.
Salient features of the Payment of Gratuity Act, 1972
 The Act is a self-contained and an exhaus琀椀ve Act and the provisions of this Act and rules
made under it have an overriding e昀昀ect on all other Acts or instruments or contracts so far
as they are inconsistent with this Act.
 The Act is fairly sweeping in coverage, as it applies to all factories, mines, oil 昀椀elds,
planta琀椀ons, ports and railways irrespec琀椀ve of the number of workmen employed by them.
It also covers shops and establishments employing 10 or more persons.
 The Act gives a statutory right of gratuity to all the employees, who have rendered 昀椀ve
years’ con琀椀nuous service and whose services stand terminated a昀琀er coming into force of
the Act on account of superannua琀椀on, or re琀椀rement, or resigna琀椀on, or death or
disablement.
 The Act provides both execu琀椀ve and quasi-judicial machinery for ma琀琀ers pertaining to the
nomina琀椀on, determina琀椀on and recovery of gratuity.
 The execu琀椀ve machinery pertains to maintenance of records regarding opening, change or
closure of establishments, display of no琀椀ces and maintenance of records by the controlling
authority. The quasi-judicial func琀椀ons have been divided between the employers and the
Controlling Authority in as much as for payment of gratuity, the 昀椀rst forum provided is an

lOMoARcPSD|28401756
applica琀椀on to the employer. When the employer has declined or avoided payment of
gratuity, then an applica琀椀on is required to be made to the Controlling Authority.
 The machinery provided for recovery rests with the Controlling Authority.
 The orders of the Controlling Authority for payment or determina琀椀on of gratuity are
applicable before the appropriate government or the appellate authority.
12. SALIENT FEATURES OF THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986.
Answer:
Child Labour
Children need to grow in an environment that enables them to lead a life of freedom and dignity.
Opportuni琀椀es in educa琀椀on and training are to be provided for them to grow into worthy ci琀椀zens.
Unfortunately, a large propor琀椀on of children are deprived of their basic rights. They are found
working in various sectors of the economy par琀椀cularly in the unorganized sector. Some of them
are con昀椀ned and beaten, reduced to slavery or denied freedom of movement thus making child
labour a human rights issue and a developmental Issue.
Definition of a Child: Ar琀椀cle 1 of The United Na琀椀ons Conven琀椀on on the Rights of the Child
de昀椀nes a child as anyone below the age of eighteen years. The Child Labour (Prohibi琀椀on and
Regula琀椀on) Act, 1986 de昀椀nes a child as, a person who has not completed his fourteenth year of
age."
Meaning of Child Labour: 'Child labour is de昀椀ned as any work within or outside the family
that involves 琀椀me, energy and commitment, which a昀昀ects the ability of a child to par琀椀cipate in
leisure, play and educa琀椀onal ac琀椀vi琀椀es. Such work impairs the health and development of a child.
According to the Interna琀椀onal Labour Organiza琀椀on, "child labour includes children pre-maturely
leading adult lives, working long hours for low wages under condi琀椀ons damaging to their health
and their physical and mental development." They are o昀琀en separated from their families and
deprived of meaningful educa琀椀on and training opportuni琀椀es that would o昀昀er them a be琀琀er
future.
All children in the age-group of 6-14 years, who should be in school but are out of school, are
deemed to be actual or poten琀椀al child labourers. India is much of a rural phenomenon than
urban. 90.87 per cent of the working children were found to be in the rural areas and 9.13 per cent
were in the urban areas.
Adverse Effects of Child Labour on the Health of Children
Children working for long hours o昀琀en in dangerous and unhealthy condi琀椀ons and are exposed to
las琀椀ng physical and psychological harm. They tend to develop
 Respiratory problems such as asthma, tuberculosis
 General weakness, stunted growth, body ache
 joint pains Poor eyesight and other eye problems such as watering, irrita琀椀on and
reddening of eyes
 Loss of appe琀椀te
 Tumours and burns
 Disability by working on looms
 Suscep琀椀bility to arthri琀椀s as they grow older
 Mental disabili琀椀es
Salient Features of the Child Labour (Prohibition and Regulation) Act, 1986:

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 Prohibits/bans the employment of any person who has not completed his fourteenth year
of age in occupa琀椀ons and processes enlisted in Part A and B of the Schedule of the Act.
 Lays down a procedure to decide modi昀椀ca琀椀ons to the Schedule of banned occupa琀椀ons or
processes
 Regulates condi琀椀ons of work where children are not prohibited from working.
 Lays down enhanced penal琀椀es for the employment of children in viola琀椀on of the
provisions of the Act and other Acts Sec琀椀on 14 of the Act provides for punishment up to 1
year (minimum being three months) or with 昀椀ne up to Rs. 20,000/- (minimum being ten
thousand) or with both, to one who employs or permits any child to work in contraven琀椀on
of provisions in Sec琀椀on 3 Children employed in occupa琀椀ons and processes, not banned by
the Act are regulated by the following provisions:
 A child shall not be required to work for more than six hours a day which shall be inclusive
of his/her one hour break.
 The period of work of a child shall be so arranged that inclusive of his interval for rest,
under sub-sec琀椀on (2), it shall not be spread over more than six hours, including the 琀椀me
spent in wai琀椀ng for work on any day.
 No child shall be permi琀琀ed or required to work between 7 p.m. and 8 a.m.
 No child shall be required or permi琀琀ed to work over-琀椀me.
 Every child shall get a weekly o昀昀.
 There is an obliga琀椀on on the part of the employer to furnish informa琀椀on to the inspector
regarding the employment of children. The employer must maintain a register on this
ma琀琀er.
Object and scope of the Child Labour (Prohibition and Regulation) Act, 1986:
There are a number of enactments which prohibit the employment of children below 14 years and
15 years of age in certain speci昀椀ed employments. However, there is no procedure laid down in any
law for deciding in which employments, occupa琀椀ons or processes the employment of children
should be banned. There is also no law to regulate the working condi琀椀ons of children in most of
the employments where they are not prohibited from working and are working under exploita琀椀ve
condi琀椀ons. Therefore the Child Labour (Prohibi琀椀ons and Regula琀椀on) Act, 1986 has been enacted
to prohibit the engagement of children in certain employments and to regulate the condi琀椀ons of
work of children in certain other employments. This Act seeks to achieve the following objects:
(i) To ban the employment of children, i.e., those who have not completed their fourteenth
year, in speci昀椀ed occupa琀椀ons and processes;
(ii) To lay down a procedure to decide modi昀椀ca琀椀ons to the Schedule of banned occupa琀椀ons
or processes;
(iii) To regulate the condi琀椀ons of work of children in employments where they are not
prohibited from working;
(iv) To lay down enhanced penal琀椀es for the employment of children in viola琀椀on of provisions
of this Act, and other Acts which forbid the employment of children;
(v) To obtain uniformity in the de昀椀ni琀椀on of "child" in the related laws.
In view of sub-sec琀椀on (2) of Sec琀椀on 1, this Act extends to the whole of India. Sec琀椀on 1(3) provides
that the provisions of this Act other than Part 111, shall, into force at once, and Part III shall come
into force on such date as the Central Government may, by no琀椀昀椀ca琀椀on in the O昀케cial Gaze琀琀e,
appoint, and di昀昀erent dates may be appointed for di昀昀erent States and di昀昀erent classes of
establishments.

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CASES
13. DEDUCTIONS FOR DAMAGES OR LOSS [SEC 7(2)(c) OF THE PAYMENT OF WAGES ACT, 1936].
While working on a machine, a worker accidentally drops a valuable tes琀椀ng appliance which is
broken. The employer deducts the value of the appliance from the wages of the worker. Is the
deduc琀椀on jus琀椀昀椀ed? (July-2019 & May-2017).
ISSUE:
Can the employer deduct for an accidental loss of an object, where the employee has not done
negligently? No.
RULE:
As per Sec琀椀on 7(2)(c) of the Payment of Wages Act, 1936, “deduc琀椀on for damage to or loss of
goods expressly entrusted to the employed person for custody; or for loss of money for which he
is required to account, where such damage or loss is directly a琀琀ributable to his neglect or default.
APPLICATION:
When an employee working with care and s琀椀ll some damage has happened due to accident or any
other reason other than where the employee is negligent and careless the damage or loss cannot
be deduc琀椀ble from the salary of that employee, as per the above Sec琀椀on 7(2)(c) of the Act,
because in this Act there is clear men琀椀on of the word neglect and in the given case this is missing.
CONCLUSION:
A昀琀er analyzing Sec琀椀on 7(2)(c) with the given case, we can conclude that the employee is not
negligent and the damage happened due to accident while working the employee was not careless
in his du琀椀es, hence he is not liable for the damages, the deduc琀椀on is not jus琀椀昀椀ed.
14. ANY CONTRACT FOR LESS THAN THE MINIMUM WAGE IS NULL AND VOID - SEC 25 OF THE
MINIMUM WAGES ACT, 1936.
A. A worker agreed to work for less than the statutory minimum wage with his employer.
But, a昀琀er some 琀椀me the worker claimed for minimum wages payable to him. Decide
(Aug-2018, May-2015).
B. There is an agreement between the workers and their employer by which the workers
work for, below the minimum wage and they do not claim for statutory minimum wage.
Whether the agreement is valid? (May-2016).
C. A worker while joining the service agreed for not claiming the statutory minimum wages.
Employer o昀昀ers him far below than the minimum wages speci昀椀ed by the minimum wages
law. Discuss (July-2012).
ISSUE:
 Is an agreement between employee and employer for taking less than minimum wage
valid? No, not valid.
 Can the employee claim minimum wages according to the law, even though an agreement
for less than minimum wages is there? Yes, he can claim.
RULE:
As per Sec琀椀on 25 of the Minimum Wages Act, 1948 “any contract or agreement, whether made
before or a昀琀er the commencement of this Act, shall be null and void in so far as it purports to

lOMoARcPSD|28401756
reduce the minimum rates of wages 昀椀xed under this Act if by such contract an employee
relinquishes or reduces his –
 Right to a minimum rate of wages; or
 Any privilege or concession accruing to him under this Act.
Sec琀椀on 20 of the Minimum Wages Act, 1948 cuts across the contract between the employer and
the employee for fewer wages than the minimum wages. Any employee who feels aggrieved by
the refusal of the employer to pay the minimum wages 昀椀xed under the Act has the right to make a
complaint either by himself or through the prescribed agents to the Authority men琀椀oned in the
Act.
APPLICATION:
Sec琀椀on 25 is a provision of absolute prohibi琀椀on against contrac琀椀ng out of the bene昀椀t and
privileges under the Minimum Wages Act. Even if the employee relinquishes or reduces his right
to minimum rate of wages or any privileges or concessions accruing to him under the Act, it shall
be null and void in so far as it purports to reduce the minimum rates of wages 昀椀xed under the Act.
Any agreement reducing the minimum rates of wages is null and void as it violates Sec琀椀on 25.
In Somiben Mathurbai Vasava vs Lalji Hakku Parmar Leather Works, 1983, In this case, there was
an agreement between the Plain琀椀昀昀 (employee) and the defendant (employer) for 昀椀xa琀椀on of piece
rate. But the piece rate was below the minimum wages prescribed by the Act, and the plain琀椀昀昀
conten琀椀on was held jus琀椀昀椀ed and the Court has awarded the minimum wages as per the Act.
CONCLUSION:
In the given case the agreement for fewer wages is null and void as per Sec琀椀on 25 of the Act, and
the employer has to pay according to the minimum wages 昀椀xed by the Government and the
employee is en琀椀tled to claim the minimum wages.
15. DOCTRINE OF NOTIONAL EXTENSION OF EMPLOYER’S PREMISES - SUPERINTENDING

ENGINEER, T.N.S.E.B. v. SANKUPATHY.
A. An employee goes to a琀琀end his work riding on a bicycle and is involved in an accident in
the course of the journey and lost his right leg. Discuss whether employer is liable for
compensa琀椀on (July-2019 & May-2017).
B. A workman while coming to workplace met with an accident and died. Whether employer
is liable for compensa琀椀on? (May-2016).
C. A workman, while coming to a琀琀end the work, met with an accident and died. Whether
the widow of the deceased workman is en琀椀tled for compensa琀椀on from the employer.
Discuss (May-2015).
ISSUE:
 Is coming to and going from home also comes under employment? Yes.
 Under which rule it comes under employment? Under the No琀椀onal Extension of
Employer’s Premises.
RULE:
Ordinarily, a man’s employment does not begin un琀椀l he has reached the place where he has to
work and does not con琀椀nue a昀琀er he has le昀琀 the place of his employment. The period of going to
or returning from employment are generally excluded and are not within the course of
employment. Travelling to and from is prima facie not in the course of employment. But there
may be a reasonable extension in both the 琀椀me and place and an employee may be regarded as in
the course of his employment even though he had not reached or had le昀琀 his employer’s
premises. It has been recognized 琀椀me and again that the sphere of an employee’s employment is

lOMoARcPSD|28401756
not necessarily limited to the actual place where he does his work. If in going to or coming from
his work he has to use an access which is part of his employer’s premises, or which he is en琀椀tled to
traverse because he is going to or coming from his work, he is held to be on his master’s business
while he is using that access.
APPLICATION:
In Superintending Engineer, T.N.S.E.B. v. Sankupathy, one Ardhanari working under appellant died
when he was proceeding to work. A claim for compensa琀椀on was allowed by the Commissioner for
employees’ compensa琀椀on. The employer preferred an appeal before the High Court which
dismissed the appeal of the Electricity Board against the award of the Commissioner in favour of
claimant-respondent. Referring to Sec琀椀on 3 of the Employees’ Compensa琀椀on Act, 1923 and the
no琀椀onal extension of employer’s premises principle it was observed that the employee su昀昀ered
death while he was proceeding to work. In such circumstances, it should be construed that the
accident resul琀椀ng in his death occurred during the course of his employment and hence the award
of compensa琀椀on was correct.
CONCLUSION:
The given case is similar to the above-discussed case, and the employee is eligible for
compensa琀椀on even though he was not in the premises when the accident was taken place but
under the principle of the No琀椀onal Extension of employer’s premises, the employer is liable for
the compensa琀椀on.
16. A CONTRACT (OR CASUAL) WORKER DIES WHILE DOING THE WORK.
A. A casual worker dies while doing the work. Widow of the deceased worker claimed for
compensa琀椀on. The employer refused to pay compensa琀椀on. Advise her. (Aug-2013).
B. X, a contract labourer dies, while working in a factory. The widow of the deceased worker
claimed for compensa琀椀on. Advise her. (July-2012).
Issue:
 Is a casual worker also considered as a worker under the Employees’ Compensa琀椀on Act,
1923? Yes.
 For the death of a contract worker who is liable to pay compensa琀椀on? The Employer is
liable for a contract worker.
Rule:
WORKMEN'S COMPENSATION (AMENDMENT) ACT, 2000, based on the recommenda琀椀ons of the
Standing Commi琀琀ee of Parliament on Labour and Welfare, the Act is being made applicable to all
casual workers by dele琀椀ng the brackets and words "(other than a person whose employment is of
casual nature and who is employed otherwise than for the purposes of the employer's trade or
business)" from Sec琀椀on 2(1)(n) of the Act.
Persons employed by day or week or on piece rate basis: It does not ma琀琀er that a man is
employed by the day, week, month, or year; the employer is liable for the compensa琀椀on.
As per Sec琀椀on 12 of the Employees’ Compensa琀椀on Act, 1923, a new liability is created whereby
the employer, even though he may not be in the least, culpable, is made liable to pay his
contractor’s employees where he employs a contractor for his trade or business. The employer is
held vicariously liable. He can be, by sub-sec琀椀on (2), indemni昀椀ed by his contractor.
Applica琀椀on:

lOMoARcPSD|28401756
In Assistant Director of Fisheries v. Mathumeentchyia, the services of divers were u琀椀lized by the
Fisheries Department of the Madras Government for diving and 昀椀shing chanks in the Gulf of
Mannar. They were held to be employees.
Conclusion:
In the given case the casual employee also considered as an employee to be eligible for
compensa琀椀on.
17. DISMISSAL DURING ABSENCE OF PREGNANCY - SEC 12 OF THE MATERNITY BENEFIT ACT, 1961.
A. A woman worker is terminated from services when she applied for maternity leave under
the Maternity Bene昀椀t Act. Advise her. (Aug-2018).
B. A woman worker is terminated from services when she applied for maternity leave. She
wants to challenge the termina琀椀on. Advise her. (May-2014).
C. A pregnant woman worker working in an establishment wanted to avail her maternity
bene昀椀t and applied for the same. Employer terminated her from the service. Advise her.
(July-2012).
D. A woman worker who is under maternity leave is transferred to a far o昀昀 place which
causes her most inconvenience. Advice. (May-2016).
Issue:
 Can an employer terminate a woman employee during her pregnancy? No, he can’t.
 Can the pregnant woman be given maternity leave? Yes, it is mandatory to give maternity
leave.
Rule:
Sec琀椀on 12 in the Maternity Bene昀椀t Act, 1961: Dismissal during absence of pregnancy.—
(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall
be unlawful for her employer to discharge or dismiss her during or on account of such absence or
to give no琀椀ce of discharge or dismissal on such a day that the no琀椀ce will expire during such
absence, or to vary to her disadvantage any of the condi琀椀ons of her service.
(2) (a) The discharge or dismissal of a woman at any 琀椀me during her pregnancy, if the woman but
for such discharge or dismissal would have been en琀椀tled to maternity bene昀椀t or medical bonus
referred to in sec琀椀on 8, shall not have the e昀昀ect of depriving her of the maternity bene昀椀t or
medical bonus: Provided that where the dismissal is for any prescribed gross misconduct, the
employer may, by order in wri琀椀ng communicated to the woman, deprive her of the maternity
bene昀椀t or medical bonus or both.
Applica琀椀on:
The main object behind providing maternity benefits : The fundamental purpose of
providing maternity bene昀椀ts is to preserve the self-respect for motherliness, protect the health of
women, complete safety of the child etc. The objec琀椀ve of maternity bene昀椀ts is to protect the
dignity of “Motherhood” by providing the complete & health care to the women & her child when
she is not able to perform her duty due to her health condi琀椀on. There is need for maternity
bene昀椀ts so that a woman is to be able to give quality 琀椀me to her child without having to worry
about whether she will lose her job and her source of income.
Duration of Maternity Leave in India: The Act has increased the dura琀椀on of paid
maternity leaves to 26 weeks from the present 12 weeks. The extended period is applicable to
women in case of the 昀椀rst and second child. Women who are expec琀椀ng a昀琀er having 2 children, the
dura琀椀on of paid maternity leave shall be 12 weeks i.e. 6 weeks pre-delivery and 6 weeks post-
delivery.

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Conclusion:
As per Sec琀椀on 12 of the Act, the sentence “vary to her disadvantage any of the condi琀椀ons of her
service” is suitable to our given case, termina琀椀on of the employee at the 琀椀me of her pregnancy
comes under this Sec琀椀on and against the provisions of this Sec琀椀on, the employee is eligible for
maternity leave of 26 weeks and the termina琀椀on is unlawful.
18. PROHIBITION OF CHILD LABOUR - SEC 3 OF THE Child and Adolescent Labour (Prohibi琀椀on and
Regula琀椀on) Act, 1986.
A. A child below 14 years working as a domes琀椀c help without any weekly holiday or rest is it
valid employment. Decide (Aug-2018).
B. A child below 14 years of age is employed in a workshop run by the employer with the aid
of his family. Discuss the legality of the employment of the child.
C. A child below 14 years is engaged as a domes琀椀c servant in a household for a meagre salary
without any holiday. Discuss (May-2015).
D. A child below 14 years was engaged in a factory. When the employer is ques琀椀oned by the
inspector, the employer shows the wri琀琀en consent le琀琀er from the parents of the child.
Decide (May-2014).
Issue:
Is employing a child below 14 years legal? Employment in Schedule A and B of the Child Labour
(Prohibi琀椀on and Regula琀椀on) Act, 1966 is prohibited, in remaining industries some rules should be
followed.
Rule:
The Child Labour (Prohibi琀椀on and Regula琀椀on) Act, 1966 de昀椀nes
Sec琀椀on 2(ii) ‘child’ means a person who has not completed his fourteenth year of age.
Sec琀椀on 7. Hours and period of work.
(1) No child shall be required or permi琀琀ed to work in any establishment in excess of such number
of hours as may be prescribed for such establishment or class of establishments.
(2) The period of work on each day shall be so 昀椀xed that no period shall exceed three hours and
that no child shall work for more than three hours before he has had an interval for rest for at
least one hour.
(3) The period of work of a child shall be so arranged that inclusive of his interval for rest, under
sub-sec琀椀on (2), it shall not be spread over more than six hours, including the 琀椀me spent in wai琀椀ng
for work on any day.
(4) No child shall be permi琀琀ed or required to work between 7 p.m. and 8 a.m.
(5) No child shall be required or permi琀琀ed to work over琀椀me.
(6) No child shall be required or permi琀琀ed to work in any establishment on any day on which he
has already been working in another establishment.
Sec琀椀on 8, Weekly holidays. —Every child employed in an establishment shall be allowed in each
week, a holiday of one whole day, which day shall be speci昀椀ed by the occupier in a no琀椀ce
permanently exhibited in a conspicuous place in the establishment and the day so speci昀椀ed shall
not be altered by the occupier more than once in three months.
Applica琀椀on:
The Child Labour (Prohibi琀椀ons and Regula琀椀on) Act, 1986 has been enacted to prohibit the
engagement of children in certain employments and to regulate the condi琀椀ons of work of children
in certain other employments. This Act seeks to achieve the following objects:

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1. To ban the employment of children, i.e., those who have not completed their fourteenth
year, in speci昀椀ed occupa琀椀ons and processes;
2. To lay down a procedure to decide modi昀椀ca琀椀ons to the Schedule of banned occupa琀椀ons or
processes;
3. To regulate the condi琀椀ons of work of children in employments where they are not
prohibited from working;
4. To lay down enhanced penal琀椀es for the employment of children in viola琀椀on of provisions
of this Act, and other Acts which forbid the employment of children;
5. To obtain uniformity in the de昀椀ni琀椀on of ‘child’ in the related laws.
Conclusion:
 Employing children below 14 years is completely banned in establishments listed under
Schedule A and B of the Act. In remaining establishments rules should be followed like
working hours, rest etc.
 In the given case weekly holiday is not allowed, as per Sec琀椀on 8 of the Act one weekly
holiday should be given to the child employee.
 In the given case the child labour was not allowed to take rest, it against the provision of
the Act, as per Sec琀椀on 7 of the Act, the child employee should be given 1-hour rest a昀琀er 3
hours of work, apart from this the child worker should not work more than 6 hours in a
day, including rest of 1 hour a昀琀er 3 hours of work.
 In the given case even though the employment is not banned by the Act, but the working
hours and lack of weekly holiday are in contraven琀椀on of the Act and the employer is liable
under the following Sec琀椀on.
 Sec琀椀on 14 Penal琀椀es. —
(1) Whoever employs any child or permits any child to work in contraven琀椀on of the
provisions of sec琀椀on 3 shall be punishable with imprisonment for a term which shall
not be less than three months but which may extend to one year or with 昀椀ne which
shall not be less than ten thousand rupees but which may extend to twenty thousand
rupees or with both.
19. NO WOMAN IS ALLOWED TO WORK BETWEEN 7 PM AND 6 AM - SECTION 66(b) OF THE

FACTORIES ACT, 1948.
A. Wives of 3 workmen employed in a tex琀椀le factory work in place of their husbands for
about half an hour every day a昀琀er 7 pm while the later take meals brought by them.
Discuss if there is a viola琀椀on of any provision of the Factories Act, 1948. (July-19, May-17).
B. A woman worker is terminated from services for refusal to do the night shi昀琀 work in a
factory. Advise her. (May-2015).
C. A woman worker is asked to a琀琀end the duty in night shi昀琀 of a factory. She met an
accident while working with a machine during night shi昀琀. Discuss. (Aug-2013).
Issue:
Can a woman employee work in a night shi昀琀 between 7 pm and 6 am? No, not allowed.
Rule:
The Factories Act, 1948, Sec琀椀on 66(1)(b) no woman shall be required or allowed to work in any
factory except between the hours of 6 A.M. and 7 P.M. Provided that the State Government may,
by no琀椀昀椀ca琀椀on in the O昀케cial Gaze琀琀e, in respect of any factory or group or class or descrip琀椀on of
factories, vary the limits laid down in clause (b), but so that no such varia琀椀on shall authorize the
employment of any woman between the hours of 10 P.M. and 5 A.M.

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Applica琀椀on:
In Triveni K.S. and Others v. Union of India and others, the cons琀椀tu琀椀onality of Sec琀椀on 66(1), clause
(b) was challenged being discriminatory on the basis of sex. Sec琀椀on 66(1), clause (b) provides that
no woman shall be required or allowed to work in any factory except between the hours of 6 am
and 7 pm. The High Court held that the women should not be employed during the night for their
own safety and welfare was a philosophy of a bygone age out of tune with modern claims of
equality, especially between sexes.
Conclusion:
In the given case wives of the 3 workmen cannot work between 7 pm and 6 am as per Sec琀椀on
66(1)(b) of the Act. Employing those women during the prohibited hours is in contraven琀椀on of the
said Sec琀椀on and a琀琀racts punishment.
20. WAGES IN-KIND - SECTION 11 OF THE MINIMUM WAGES ACT, 1948.

A. In an establishment, the workers are paid in terms of food grains instead of payment of
wages in cash. The workers are not willing to receive the food grains o昀昀ered by the
employer. They claim for wages in cash. Decide (May-2014).
B. Workers in an establishment are provided with some goods in lieu of their wages in cash
by the employer. The workers protested this and claimed wages only in cash. Decide
(Aug-2013).
ISSUE:
Can an employer pay the wages in kind? Yes, he can pay but only with the permission of the
appropriate government.
RULE:
Sec琀椀on 11 of the Minimum Wages Act, 1948, Wages in kind:
(1) Minimum wages payable under this Act shall be paid in cash.
(2) Where it has been the custom to pay wages wholly or partly in kind the appropriate
government being of the opinion that it is necessary in the circumstances of the case may by
no琀椀昀椀ca琀椀on in the O昀케cial Gaze琀琀e authorize the payment of minimum wages either wholly or
partly in kind.
(3) If appropriate government is of the opinion that provision should be made for the supply of
essen琀椀al commodi琀椀es at concession rates the appropriate government may by no琀椀昀椀ca琀椀on in the
O昀케cial Gaze琀琀e authorize the provision of such supplies at concessional rates.
(4) The cash value of wages in kind and of concessions in respect of supplies of essen琀椀al
commodi琀椀es at concession rates authorized under sub-sec琀椀ons (2) and (3) shall be es琀椀mated in
the prescribed manner.
APPLICATION:
If an employer wants to pay wages in kind wholly or partly has to follow the following rules:
1. There should be a custom in that area or in the industry to pay in kind.
2. The appropriate government should by no琀椀昀椀ca琀椀on in the O昀케cial Gaze琀琀e authorize that
establishment.
3. The goods supplied by the employer should be at concessional rates.
4. The employer should maintain and submit the record pertaining to the concession in
respect of supplies of essen琀椀al commodi琀椀es and its value in money terms to the
appropriate government.
CONCLUSION:

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The employer in the given case can give wages in kind to his employees provided that the above-
stated rules are followed.
21. AN EMPLOYEE WHO SERVED IN AN ESTABLISHMENT FOR A PERIOD OF LESS THAN 5 YEARS
CLAIMED GRATUITY.
An employee who served in an establishment for a period of less than 5 years claimed for the
payment of gratuity. Employer refused to pay. Decide (Aug-2013 & July-2013).
ISSUE:
Can an employee who has worked for less than 5 years claim gratuity?
RULE:
As per Sec琀椀on 4 of the Payment of Gratuity Act, 1972: Payment of gratuity.
(1) Gratuity shall be payable to an employee on the termina琀椀on of his employment a昀琀er he has
rendered con琀椀nuous service for not less than 昀椀ve years, -
(a) On his superannua琀椀on, or
(b) On his re琀椀rement or resigna琀椀on, or
(c) On his death or disablement due to accident or disease:
Provided that the comple琀椀on of con琀椀nuous service of 昀椀ve years shall not be necessary where the
termina琀椀on of the employment of any employee is due to death or disablement.
APPLICATION:
It was held in Bakshish Singh vs. M/s. Darshan Engineering Works and others, that the provision
for payment of gratuity contained in Sec琀椀on 4(1)(b) of the Act Is one of the minimum service
condi琀椀ons which must be made available to the employees notwithstanding the 昀椀nancial capacity
of the employer to bear its burden and the said provisions is a reasonable restric琀椀on on the right
of the employer to carry on his business within the meaning of Ar琀椀cle 19(6) of the Cons琀椀tu琀椀on.
Hence Sec琀椀on 4(1)(b) of the Act is valid and legal.
CONCLUSION:
In the given case the employee has worked for less than 5 years and as per Sec琀椀on 4 of the
Payment of Gratuity Act, 1972 he is not eligible for gratuity, for eligibility of gratuity he should
render con琀椀nuous service for not less than 昀椀ve years.
*****

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INTELLECTUAL PROPERTY LAW
LLB 4 t h SEMESTER
Poonam Singh 1

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INTELLECTUAL PROPERTY LAW IMPORTANT QUESTIONS
SL NO IMPORTANT SHORT QUESTIONS
1 DEFINE GEOGRAPHICAL INDICATIONS AND PROCEDURE FOR ITS REGISTRATION

2 NEW PLANT VARIETY
3 WIPO (The World Intellectual Property Organiza琀椀on) STRUCTURE, POWERS AND FUNCTIONS.
4 RIGHTS OF PERFORMERS (SECTION 38 AND SECTION 38A OF COPYRIGHT ACT, 1957)
5 COPYRIGHT IN DRAMATIC WORKS, MUSICAL WORKS, ARTISTIC WORKS
6 PASSING OFF
7 COMPULSORY LICENSING
8 SPECIFICATION AND COMPLETE SPECIFICATION (page 390 - 391 SR Myneni)
9 EXCLUSIVE MARKETING RIGHTS
10 EXPLAIN THE NATURE, MEANING AND CLASSIFICATION OF INTELLECTUAL PROPERTY WITH SUITABLE EXAMPLES
HOW DOES IT DIFFER FROM OTHER FORMS OF PROPERTY? WHY SHOULD IT BE PROTECTED?
11 WHAT ARE THE SALIENT FEATURES OF TRIPs AGREEMENT?
12 INFRINGEMENT OF COPYRIGHT AND ITS EXCEPTIONS
13 DEFINE COPYRIGHT. EXPLAIN THE RIGHTS OF THE AUTHORS AND OWNERS (ECONOMIC AND MORAL)
14 OWNER OF COPYRIGHT. DIFFERENT MODES OF TRANSFER OF COPYRIGHT WITH REFERENCE TO ASSIGNMENT.
15 DISTINGUISH INFRINGEMENT OF TRADEMARK WITH PASSING OFF WITH SUITABLE CASE LAWS.
16 DEFINE PATENT. EXPLAIN RIGHTS AND DUTIES OF PATENTEE.
17 WHAT IS INVENTION & NOT INVENTIONS AS PER SECTION 3 OF THE PATENTS ACT, 1970. CONDITION FOR GRANT OF A PATENT.
IMPORTANT CASES
18 PROTECTION OF COMPUTER PROGRAMS {SECTION 13(1)(a) OF THE COPYRIGHT ACT, 1957}

19 INFRINGEMENT OF COPYRIGHT AND ITS EXCEPTIONS
CASE - SINGING COPYRIGHTED SONGS IN A LIVE SHOW WITHOUT PERMISSION
CASE - BROADCASTING THE LIVE PERFORMANCE OF A GREAT SINGER WITHOUT PERMISSION
20 WHO IS THE OWNER OF THE FILM SONG/ACTION?
21 CAN ANYONE COPY A HISTORICAL MONUMENT?
22 A GARMENTS MANUFACTURER HAS USED THE TRADEMARK 'AUDI'. AUDI CAR MANUFACTURER HAS OBJECTED TO IT.
SECTION 29(4) OF THE TRADEMARKS ACT, 1999
23 PATENTS OF IMPROVEMENT TO A MEDICINE - VALIDITY 20 YEARS
24 AN INVENTION OF A NEW AGRICULTURAL PROCESS FOR MORE YIELD, CAN HE GET PATENT FOR THE INVENTION?
Poonam Singh 2

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PAPER-V: INTELLECTUAL PROPERTY LAW - SYLLABUS

Unit-I: Intellectual Property-Meaning, Nature and Classi昀椀ca琀椀on –Signi昀椀cance and need of
protec琀椀on of Intellectual Property — Main forms of Intellectual Property: Patents,
Trademarks, Industrial Designs, Geographical Indica琀椀ons of Goods, Copyright and
Neighbouring Rights-New forms of Intellectual Property: Plant Varie琀椀es Protec琀椀on and
Biotechnology, GRTK, Layout Designs, Computer Programmes
Unit-II: Evolu琀椀on of Interna琀椀onal Protec琀椀on of IPRs-Introduc琀椀on to the leading

Interna琀椀onal instruments concerning Intellectual Property Rights –General Principles of
Protec琀椀on-The Paris Conven琀椀on,1883- The Berne Conven琀椀on,1886 –The Madrid
Agreement,1891-The Patent Co-opera琀椀on Treaty,1970 – The World Intellectual Property
Organiza琀椀on (WIPO) Conven琀椀ons- TRIPS Agreement,1994
Unit-III: Copyright: Meaning, Nature, historical evolu琀椀on and signi昀椀cance- The Copyright
Act, 1957 – Salient Features-Idea-Expression Dichotomy-Subject ma琀琀er of Copyright
Protec琀椀on- Neighbouring rights - Ownership of Copyright –Rights of Authors and owners -
Assignment of copyright –Collec琀椀ve management of copyright- infringement of copyright
and Criteria –Excep琀椀ons to i9nfringement - Authori琀椀es under the Act — Remedies for
infringement of copyright.
Unit-IV: Intellectual Property in Trademarks and the ra琀椀onale of their protec琀椀on - The
Trade Marks Act, 1999 — De昀椀ni琀椀on of Trademarks — Dis琀椀nc琀椀on between Trademark and
Property Mark - Registra琀椀on — Passing o昀昀 — Infringement of Trademark — Criteria of
Infringement — Remedies-Concept of Industrial designs-The Designs Act, 2000 —
De昀椀ni琀椀on and characteris琀椀cs of Design — Law in India — Protec琀椀on and rights of design
holders — Copyright in design — Registra琀椀on — Remedies for infringement.
Unit-V: Patents — Concept of Patent — Historical overview of the Patent Law in India -
The Patents Act, 1970 and its salient features — — Patentable Inven琀椀ons — Kinds of
Patents — Procedure for obtaining patent in India and in other countries —Rights and
obliga琀椀ons of a patentee —Limita琀椀ons on patent rights: compulsory licensing, acquisi琀椀on
by government and secrecy direc琀椀ons- Infringement of patent rights and remedies
available.
Suggested Readings: 1. P. Narayanan: Intellectual Patent Rights, Eastern Law House,

1995. 2. Roy Chowdhary, Law of Trademark, Copyrights, Patents and Designs, Kamal Law
House 3. G.B. Reddy, Intellectual Property Rights and the Law Gogia Law Agency. 4. John
Holyoak and Paul Torremans: Intellectual Property Law. 5. B.L. Wadhera: Intellectual
Property Law, Universal Publishers. 6. W.R. Cornish: Intellectual Property Law, Universal
Publishers. 7. V.K.Ahuja, Law Rela琀椀ng to Intellectual Property Rights, LexisNexis 8.
Elizabeth Verkey, Intellectual Property Rights, Eastern Book Company 9.Elizabeth Verkey,
Law of Patents, Eastern Book Company.
Poonam Singh 3

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1. De昀椀ne geographical indica琀椀on and procedure for is registra琀椀on

Answer: Geographical indica琀椀ons or GIs are signs iden琀椀fying goods that have a speci昀椀c
geographical origin and possess a given quality, reputa琀椀on or other characteris琀椀cs that are
essen琀椀ally a琀琀ributable to that origin. They can be used for both agricultural and industrial
products.
A geographical indica琀椀on is given mainly to agricultural, natural, manufactured, handicra昀琀

arising from a certain geographical area. Geographical indica琀椀ons (G.I.) are one of the forms
of IPR which iden琀椀昀椀es goods as origina琀椀ng in the respec琀椀ve territory of the country, or a
region or locality in that par琀椀cular territory, where a given quality, reputa琀椀on or other
characteris琀椀c related to goods is essen琀椀ally a琀琀ributable to its geographical origin.
It performs three functions:
 First, they iden琀椀fy the goods as to the origin of a par琀椀cular region or locality;
 Secondly, they suggest to consumers that goods come from a region where a given
quality, reputa琀椀on, or other characteris琀椀cs of the goods are essen琀椀ally a琀琀ributed to
their geographic origin;
 Third, they promote the goods of producers of a par琀椀cular region, and they protect
the producers of that region by recognizing GI to their produce. They suggest the
consumer that the goods come from this area where a given quality, reputa琀椀on or other
characteris琀椀cs of goods are essen琀椀ally a琀琀ributable to the geographic region.
Ar琀椀cle 22 of the TRIPS Agreement de昀椀nes a geographical indica琀椀on as:
“Geographical indica琀椀ons are, for the purposes of this Agreement, indica琀椀ons which iden琀椀fy
a good as origina琀椀ng in the territory of a Member, or a region or locality in that territory,
where a given quality, reputa琀椀on or other characteris琀椀cs of the good is essen琀椀ally
a琀琀ributable to its geographical origin”.
The object of the Geographical Indicators Goods (Registra琀椀on and Protec琀椀on) Act, 1999, has
three folds:
 By speci昀椀c laws governing the geographical Indica琀椀on of goods in the country, which
can adequately protect the interests of the producers of such goods,
 To exclude unauthorized persons from misuse of geographical signals and protect
consumers from fraud, and
 Promo琀椀ng Indian geographical bearing goods in the export market.
Some of the Examples of Indian geographical indica琀椀ons which are registered in India are:
Poonam Singh 4

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Basma琀椀 rice, Darjeeling tea, Banaras Brocades and Sarees, Coorg orange, Phulkari, Kolhapuri
chappals, Kanjivaram sarees, Agra Petha.
The registra琀椀on process of Geographical Indica琀椀ons
Step 1: Applica琀椀on 昀椀ling
The associa琀椀on of individuals or producers or any associa琀椀on or authority should represent

the interest of the producers of the goods concerned and 昀椀le an a昀케davit as to how the
Applicant claims to represent their respec琀椀ve interests.
 Applica琀椀ons must be made in triplicate.
Poonam Singh 5

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 The Applica琀椀on must be signed by the Applicant or his agent and must be
accompanied by a descrip琀椀on of the case.
 Describe the special features and how those standards are maintained.
 Three cer琀椀昀椀ed copies of GI-related 昀椀eld maps.
 Descrip琀椀on of the inspec琀椀on structure if there is an area for regula琀椀ng the use of G.I.
 Provide details of all applicants with the address.
Step 2 and 3: Preliminary Examina琀椀on and Examina琀椀on
 The examiner will check the Applica琀椀on for any de昀椀ciencies.

 The Applicant should take measures in this regard within one month of
communica琀椀on.
 The content of the case descrip琀椀on is evaluated by an advisory group of experts who
will master the subject.
 A昀琀er that, an examina琀椀on report will be issued.
Step 4: Show cause no琀椀ce
 If the Registrar has any objec琀椀on to the Applica琀椀on, he shall 昀椀le such objec琀椀on.
 Applicant must reply within two months or apply for a hearing.
 The decision will be duly communicated. If the Applicant wants to appeal, he can
request it within a month.
 The Registrar also has the right to withdraw an applica琀椀on, if it is mistakenly accepted,
a昀琀er giving it on the occasion of a hearing.
Step 5: Publica琀椀on in Geographical Indica琀椀on Journal
Every Applica琀椀on, within three months of acceptance, will be published in the Geographical
Indica琀椀ons Journal.
Step 6: Resist Registra琀椀on
 Any person opposing the G.I. applica琀椀on, published in the journal, can 昀椀le a no琀椀ce of
protest within three months (another month upon request which is to be 昀椀led before
three months).
 The Registrar will provide a copy of the no琀椀ce to the Applicant.
 Within two months, the Applicant will send a copy of the counter statement.
 If he does not do so, he is believed to have dropped his Applica琀椀on. Where a
counter-claim has been 昀椀led, the Registrar will serve a copy on the person giving no琀椀ce
of the protest.
 Therea昀琀er, both par琀椀es will lead their respec琀椀ve evidence through a昀케davits and
suppor琀椀ng documents.
Step 7: Registra琀椀on of Applica琀椀on
Poonam Singh 6

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 Where an applica琀椀on for G.I. has been accepted, the Registrar will register the
Geographical Indica琀椀on. The date of 昀椀ling the Applica琀椀on a昀琀er being registered will be
considered as the date of registra琀椀on.
Registra琀椀ons for GIs are not necessary, however, the organiza琀椀ons or companies who
register their geographical indica琀椀ons obtain numerous bene昀椀ts of the registra琀椀on
including:
 Registered geographical indica琀椀ons have the exclusive right to exploit or use the GIs’
products in the course of trade.
 The authorized users are allowed to issue infringements.
 It confers legal protec琀椀on to Geographical Indica琀椀ons in India.
 Prevents unauthorized use of a Registered Geographical Indica琀椀on by others.
 It provides legal protec琀椀on to Indian Geographical Indica琀椀ons which in turn boost
exports.
 It promotes the economic prosperity of producers of goods produced in a
geographical territory.
2. New plant Variety

Answer: INTRODUCTION
India has ra琀椀昀椀ed the TRIPS agreement and to give e昀昀ect to this agreement, The Protec琀椀on
of Plant Varie琀椀es and Farmers Rights Act, 2001 (PPV&FRA) was enacted.
The main aim of this Act is to establish an e昀昀ec琀椀ve system for the protec琀椀on of plant
varie琀椀es and, the rights of the breeders and to encourage the development of new varie琀椀es
of plants.
Any variety that ful昀椀ls the DUS criteria and that is "new" (in the market) is eligible for this
kind of protec琀椀on, and there is no need to demonstrate an inven琀椀ve step or industrial
applica琀椀on, as required under a patent regime.
A DUS examina琀椀on involves growing the candidate variety together with the most similar
varie琀椀es of common knowledge, usually for at least two seasons, and recording a
comprehensive set of morphological (and in some cases agronomic) descriptors.
Plant varie琀椀es present in the wilderness cannot be registered, under PPV&FR Authority.
However, any tradi琀椀onally cul琀椀vated plant variety which has undergone the process of
domes琀椀ca琀椀on/improvement through human interven琀椀ons can be registered and protected
subjected to ful昀椀lment of the eligible criteria.
CRITERIA FOR REGISTRATION OF A VARIETY:
Poonam Singh 7

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For a variety to be eligible for registra琀椀on, it must conform to the criteria of novelty,
dis琀椀nc琀椀veness, uniformity and stability (NDUS).
1. Novel: if at the date of 昀椀ling an applica琀椀on for registra琀椀on for protec琀椀on, the
propaga琀椀ng or harvested material of such variety has not been sold or otherwise
disposed of in India earlier than one year or outside India, in the case of trees or vines
earlier than six years, or any other case earlier than four years, before the date of 昀椀ling
such applica琀椀on.
2. Dis琀椀nct: A variety is said to be dis琀椀nct if it is clearly dis琀椀nguishable by at least one
essen琀椀al characteris琀椀c from any other variety whose existence is a ma琀琀er of common
knowledge in any country at the 琀椀me of 昀椀ling an applica琀椀on.
3. Uniform: A variety is said to be uniform, all the plants of the variety shall have the
same characteris琀椀cs if subject to the varia琀椀on that may be expected from the
par琀椀cular features of its propaga琀椀on it is su昀케ciently uniform in its essen琀椀al
characteris琀椀cs.
4. Stable: A variety is said to be stable if its essen琀椀al characteris琀椀cs remain unchanged
a昀琀er repeated propaga琀椀on or, in the case of a par琀椀cular cycle of propaga琀椀on, at the
end of each such cycle. Stable means successive genera琀椀ons of the plants shall con琀椀nue
to have without any varia琀椀on the same essen琀椀al characteris琀椀c, quality and contents
TYPES OF VARIETIES
1. New Variety: A new variety can be registered under the Act if it conforms to the
criteria for novelty, dis琀椀nc琀椀veness, uniformity and stability.
2. Extant variety: An extant variety can be registered under the Act if it conforms to the
criteria for dis琀椀nc琀椀veness, uniformity and stability. Thus novelty is not considered
while going for the protec琀椀on of plant varie琀椀es.
The PPV&FRA, 2001 u/s 2 (j) (iii) and (iv) de昀椀nes extant variety as any variety "which
is in the public domain or about which there is common knowledge.
3. Farmers' Variety: Under sec琀椀on 2 (l) farmers variety means a variety "which has
been tradi琀椀onally cul琀椀vated and evolved by the farmers in their 昀椀elds".
DURATION OF PROTECTION
 For trees and vines (Perennials)- 18 years from the date of registra琀椀on of the variety.
 For other crops (Annuals) – 15 years from the date of registra琀椀on of the variety.
 For extant varie琀椀es – 15 years from the date of no琀椀昀椀ca琀椀on of that variety by the
Central Government under sec琀椀on 5 of the Seeds Act, 1966.
EXEMPTIONS PROVIDED BY THE ACT
 Farmers' Exemp琀椀on: Farmer shall be en琀椀tled to produce, save, use, sow, resow,
exchange, share or sell his farm produce including seed of a variety protected under
this Act.
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 Researcher's Exemp琀椀on: (i) the use of registered variety for experimen琀椀ng. (ii) the
use of variety as an ini琀椀al source of variety for the purpose of crea琀椀ng other
varie琀椀es.
3. WIPO.
Answer: The World Intellectual Property Organiza琀椀on (WIPO) is the United Na琀椀ons
specialized agency. It seeks to develop a balanced and accessible Interna琀椀onal Intellectual
Property System, which rewards crea琀椀vity, s琀椀mulates innova琀椀ons, and contributes to
economic development while safeguarding public interests.
Intellectual Property (IP) refers to crea琀椀ons of the mind, literary and ar琀椀s琀椀c works,
inven琀椀ons, symbols, names, images, and designs used in commerce.
WIPO is the oldest organiza琀椀on in the 昀椀eld of IP protec琀椀on. Actually, it was created at the
diploma琀椀c conference in 1893. The two o昀케ces applying the administra琀椀ve func琀椀ons of the
Paris Conven琀椀on for the Protec琀椀on of Industrial Property and Bern Conven琀椀on for the
Protec琀椀on of Literary and Ar琀椀s琀椀c Works united in a single en琀椀ty — the United Interna琀椀onal
Bureau for the Protec琀椀on of Intellectual Property.
The member states wanted to make this Interna琀椀onal Bureau a fully-昀氀edged

intergovernmental organiza琀椀on. That is why in 1967 in Stockholm the WIPO was created
through the signing of the Conven琀椀on. The WIPO is headquartered in Geneva (Switzerland).
In 1974 the WIPO became a UN specialized agency. Under the agreement, the WIPO should
s琀椀mulate crea琀椀vity and promote IP protec琀椀on all over the world through coopera琀椀on
between countries.
Currently, the WIPO includes 184 member-states. It is made up of more than 90 per cent of
all countries. The WIPO Director-General is Francis Gurry.
The WIPO main functions are:
 assis琀椀ng campaigns development to improve IP protec琀椀on all over the world and to
harmonize na琀椀onal legisla琀椀on in this 昀椀eld;
 signing interna琀椀onal agreements on IP protec琀椀on;
 applying the administra琀椀ve func琀椀ons of the Paris and Berne Unions;
 rendering technical and legal assistance in the 昀椀eld of IP;
 collec琀椀ng and dissemina琀椀ng the informa琀椀on, conduc琀椀ng researches and publishing
their results;
 ensuring the work of the services facilita琀椀ng interna琀椀onal IP protec琀椀on;
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 applying any other appropriate ac琀椀ons.

The prime and most important WIPO func琀椀on is administering mul琀椀lateral interna琀椀onal
conven琀椀ons, i.e. deposi琀椀ng trea琀椀es, states’ instruments of accession, of con昀氀icts
se琀琀lement, ensuring trea琀椀es review, applying the registra琀椀on func琀椀ons for trea琀椀es
reviewing the interna琀椀onal registra琀椀on of IP objects.
Today, the WIPO administers the trea琀椀es in the 昀椀elds of industrial property, copyright and
related rights.
Since 1998, the WIPO Worldwide Academy has been preparing human resources in the 昀椀eld
of IP protec琀椀on. The Academy has a Distance Learning Centre helping obtain knowledge via
the Internet. A par琀椀cular highlight is WIPO net-project, the IP global network ensuring on-
line connec琀椀on with business processes of na琀椀onal agencies. Se琀琀lement of IP-related
commercial con昀氀icts is a perspec琀椀ve direc琀椀on of the WIPO ac琀椀vi琀椀es. In 1994, the WIPO
Arbitra琀椀on and Media琀椀on Centre was created. It renders assistance in se琀琀ling such
con昀氀icts.
Structure
The General Assembly consists of all the States that are members of WIPO and also
members of any of the Unions.
Unlike the General Assembly, the Conference consists of all the States which are members
of WIPO, whether or not they are members of any of the Unions.
The main functions of the Conference were originally divided into five
groups.
First, the Conference was to cons琀椀tute a forum for exchanges of views between all States
members of WIPO on ma琀琀ers rela琀椀ng to intellectual property, and in that context it was
empowered, in par琀椀cular, to make any recommenda琀椀ons on such ma琀琀ers, having regard to
the competence and autonomy of the Unions.
Secondly, the Conference was to establish the biennial development coopera琀椀on program
for developing countries and,
Thirdly, it was to adopt a budget for that purpose.
Fourthly, the Conference is also competent to adopt amendments to the Conven琀椀on

establishing WIPO. Proposals for the amendment of the Conven琀椀on may be ini琀椀ated by any
State member of WIPO, by the Coordina琀椀on Commi琀琀ee or by the Director-General.
Fi昀琀hly, the Conference, like the General Assembly, was to determine which States and
organiza琀椀ons would be admi琀琀ed to its mee琀椀ngs as observers.
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The Unions administered by WIPO are founded on the trea琀椀es. A Union consists of all the
States that are party to a par琀椀cular treaty. The name of the Union is, in most cases, taken
from the place where the text of the treaty was 昀椀rst adopted (thus the Paris Union, the
Berne Union, etc.). The trea琀椀es fall into three groups.
4. Rights of performers.
Answer: Performers are recognised by the society as vital links between literary, drama琀椀c
and musical works and the public. There is no doubt that performers spend su昀케cient skill
and labour to merit copyright protec琀椀on. Our great musicians - vocalists and
instrumentalists, talented dancers, popular actors on the stage and on the screen, and other
performing ar琀椀sts who delight the hearts and feast the eyes and ears of millions of people
every day by their visual or acous琀椀c presenta琀椀ons who keep alive our rich and varied
cultural heritage.
Performer’s Right: ‘Performer’ includes an acrobat, musician, singer, actor, juggler, snake
charmer, and a person delivering lecture (lecture includes address, speech and sermon) or
any other person who makes a performance [Sec琀椀on 2(qq) Copyright Act, 1957].
‘Performance’ in rela琀椀on to the performer’s right means any visual or acous琀椀c presenta琀椀on
made by one or more performers [Sec琀椀on 2(q)].
The performer’s right shall subsist for 昀椀昀琀y years (previously for twenty-昀椀ve years) from the
year of performance. The performer has the exclusive right to make a sound recording or
visual recording of the performance, to reproduce a sound recording or visual recording of
the performance, to broadcast the performance, and to communicate the performance to
the public otherwise then the broadcast (Sec琀椀on 38).
Exclusive rights of the performers: Without prejudice to the rights conferred on authors, the
performer’s right which is an exclusive right subject to the provisions of this Act to do or authorise
for doing any of the following acts in respect of the performance or any substan琀椀al part thereof,
namely:
1. to make a sound recording or a visual recording of the performance;

2. to reproduce the performance in any material form including the storing of it in any
medium by electronic or any other means;
3. to issue copies of the performance to the public not being copies already in
circula琀椀on;
4. to communicate the performance to the public;
5. to sell or give the performance on commercial rental or o昀昀er for sale or commercial
rental any copy of the recording, and
6. to broadcast or communicate the performance to the public except where the
performance is already broadcast.
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In the case of Indian Singer’s Rights Associa琀椀on “ISRA” vs. Night fever club and
lounge, public performance of songs of the members of the collec琀椀ng society at the
Defendant’s Club and Lounge, without the permission of the Plain琀椀昀昀 and payment of
royal琀椀es, was held to be illegal and in viola琀椀on of Plain琀椀昀昀’s Performers Rights.
Moral rights of the performer: The performer of performance shall, independently of his
right a昀琀er assignment, either wholly or par琀椀ally of his right, have the right:
1. to claim to be iden琀椀昀椀ed as the performer of his performance except where omission

is dictated by the manner of the use of the performance, and
2. to restrain or claim damages in respect of any distor琀椀on, mu琀椀la琀椀on or other
modi昀椀ca琀椀on of his performance that would be prejudicial to his reputa琀椀on.
5. Copyright in Literary, drama琀椀c, musical and ar琀椀s琀椀c works
Answer: Copyright is a form of intellectual property that gives an exclusive right to the
creators of literary, drama琀椀c, musical works, computer programme, ar琀椀s琀椀c work,
cinematograph 昀椀lm and sound recordings for a certain 琀椀me period. The creators of these
works get copyright immediately a昀琀er expression and require no formal registra琀椀on.
Copyright law protects the expressions of ideas but not the ideas. Copyright is a statutory
right which stops others from copying or exploi琀椀ng authors' works without permission. It is
a nega琀椀ve right because it prevents others from copying for a commercial end. The
copyright symbol is ©.
Section 14 of the Copyright Act, 1957 Meaning of copyright.-- For the purposes of
this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do
or authorise the doing of any of the following acts in respect of a work or any substantial
part thereof, namely--
(a) in the case of a literary, dramatic or musical work, not being a computer programme,-
(i) to reproduce the work in any material form including the storing of it in any
medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the
acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme:
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental
any copy of the computer programmer:
Provided that such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work
(i) to reproduce the work in any material form including—
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(ii) the storing of it in any medium by electronic or other means; or

(iii) depiction in three-dimensions of a two-dimensional work; or
(iv) depiction in two-dimensions of a three-dimensional work;]
(d) in the case of a cinematograph film,--
(i) to make a copy of the film, including--
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other means;]
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of
the film.
(e) in the case of a sound recording,--
(i) to make any other sound recording embodying it 6[including storing of it in any
medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any
copy of the sound recording;
(iii) to communicate the sound recording to the public.
Explanation.--For the purposes of this section, a copy which has been sold once shall be
deemed to be a copy already in circulation].
6. What is passing o昀昀?

Answer: ‘Passing o昀昀’ means passing o昀昀 one’s goods or business as the goods or
business or another. The law of passing o昀昀 prevents commercial dishonestly represen琀椀ng
one’s goods as the goods of somebody else. Passing o昀昀 injures the right of property in the
plain琀椀昀昀, that right being his right to the goodwill of his business. Passing o昀昀 ac琀椀on is
available to a trader for the protec琀椀on of his proprietary right in his goodwill or business
against that form of unfair compe琀椀琀椀on.
Elements of passing o昀昀
The three fundamental elements of passing o昀昀 are Reputa琀椀on, Misrepresenta琀椀on and
Damage to goodwill. These three elements are also known as the CLASSICAL TRINITY, as
restated by the House of Lords in the case of Recki琀琀 & Colman Ltd V Borden Inc. It was
stated in this case that in a suit for passing o昀昀 the plain琀椀昀昀 must establish 昀椀rstly, goodwill or
reputa琀椀on a琀琀ached to his goods or services. Secondly, he must prove misrepresenta琀椀on by
the defendant to the public i.e. leading or likely to lead the public to believe that the goods
and services o昀昀ered by him are that of the plain琀椀昀昀's. Lastly, he must demonstrate that he
has su昀昀ered a loss due to the belief that the defendant's goods and services are those of the
plain琀椀昀昀's.
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 goodwill - you must prove that you own a 'reputa琀椀on' in the mark that the public
associates with your speci昀椀c product or service
 misrepresenta琀椀on- you must show that the trader has caused confusion and
deceived or misled the customers into believing that their goods and services are
actually your
 damage - you must prove that the misrepresenta琀椀on damaged or is likely to damage
your goodwill, or cause actual or foreseeable 昀椀nancial or reputa琀椀onal loss
Rights rela琀椀ng to passing o昀昀 are established gradually with use. Goodwill in a mark can be
par琀椀cularly di昀케cult to de昀椀ne. Reputa琀椀on and goodwill of a business are generally
considered as something that provides an iden琀椀ty to a business and its goods or services
and dis琀椀nguishes them from those of their compe琀椀tors.
Modern Elements of Passing off - In the case Erven Warnink Vs. Townend, Lord Diplock
gave the essen琀椀al modern characteris琀椀cs of passing-o昀昀 ac琀椀on. They are as follows: -
1. Misrepresenta琀椀on
2. Made by a person in the course of trade
3. To prospec琀椀ve customers of his or ul琀椀mate consumers of goods or services supplied by
him.
4. Which is calculated to injure the business or goodwill of another trader.
5. Which causes actual damage to a business or goodwill of the trader by whom the ac琀椀on is
brought.
The above concept of passing o昀昀 can be explained with the help a case law: Honda Motors
Co. Ltd V Charanjit Singh & Others:
Facts: Plain琀椀昀昀 was using trademark "HONDA" in respect of automobiles and power
equipment. Defendants started using the mark "HONDA" for its pressure cookers. Plain琀椀昀昀
bought an ac琀椀on against the defendants for the passing of the business of the plain琀椀昀昀.
Held: It was held that the use of the mark "Honda" by the defendants couldn't be said to be
an honest adop琀椀on. Its usage by the defendant is likely to cause confusion in the minds of
the public. The applica琀椀on of the plain琀椀昀昀 was allowed.
Remedies for passing o昀昀
There are several remedies available:
 apply for an injunc琀椀on to prevent the business from using your trademark or
goodwill
 apply to have the infringing goods destroyed
 sue for damages or seek account for lost pro昀椀t
 request an inquiry to establish loss
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Passing o昀昀 defences
You may encounter di昀昀erent defences if you pursue a claim for passing o昀昀. For example, the
defendant may argue that:
 the mark in ques琀椀on is not dis琀椀nc琀椀ve

 the mark is generic
 they have used carefully and honestly their own name
The ac琀椀on of passing o昀昀 occurs when a trader unlawfully misrepresents (acts misleadingly)
that his goods or services are those of another trader. Such misrepresenta琀椀on made by a
trader is typically by way of imita琀椀ng, among other things, the following:
 the trademark or brand name of another trader;

 the trade name or personal name of another trader;
 the packaging, label or get-up of goods of another trader;
 a 昀椀c琀椀onal character created by another trader.
Other common forms of misrepresenta琀椀on which can also give rise to legal ac琀椀on for
passing o昀昀 include the following:
 a trader supplying his own goods in response to an order for goods of another
trader;
 a trader falsely pretending to be an agent or dealer of another trader;
 a trader falsely sta琀椀ng that his goods or services are endorsed by a third party
(usually a celebrity);
 a trader pretending that goods or services of another trader are his goods or services
(o昀琀en referred to as "inverse passing o昀昀").
7. Compulsory licensing
Answer: Compulsory licensing under copyrights:
A license is the transfer of an interest in copyright. In a license, the right to use a copyright is given to
another party with some restric琀椀ons on such usage. A license can grant the right in the copyright of
work which is already in existence or copyright in some future work which is yet to come in
existence. A licensee can use the copyrighted work without any claim of infringement or
unauthorized use being brought by the owner of the copyright against the licensee.
A license agreement should contain the following details in order to be

enforced:
 Iden琀椀昀椀ca琀椀on of the work and rights licensed

 Dura琀椀on of the license
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 Amount of royalty payable

 Condi琀椀ons rela琀椀ng to revision, extension and/or termina琀椀on of the license.
The license should be in wri琀椀ng and should be duly signed by the owner of the copyright or his duly
authorized agent. Details about the present or future copyright work where the licensee of a future
work dies before such work come into existence then his legal representa琀椀ves will be en琀椀tled to the
bene昀椀t of the license, provided there is nothing contrary to it.
A license can be of two types:
1. Voluntary License
2. Compulsory License
1. Voluntary License: Voluntary license is covered under Sec琀椀on 30 of the Indian Copyright
Act, which de昀椀nes voluntary licensing as:
The owner of the copyright in any exis琀椀ng work or the prospec琀椀ve owner of the copyright in any
future work may grant any interest in the right by license in wri琀椀ng signed by him or by a duly
authorized agent.
Therefore, the owner of the copyright of an exis琀椀ng work or a prospec琀椀ve owner of future copyright
can grant an interest in the right by way of license, in a case of the copyright of future work the
license will come in force only when the work comes into existence.
2. Compulsory License: A compulsory license is covered under Sec琀椀on 31 of the Indian

Copyright Act. It is a term used for the statutory license which gives an exclusive right to do
an act without the prior permission of the owner of the copyright. Sec琀椀on 31 provides for
compulsory licensing of copyrighted work which is withheld from the public.
In case a copyright owner has refused to:
Republish or allow for the republica琀椀on of the work or has refused to allow the performance of the
work in public due to which the work is withheld from the public;
Allow communica琀椀on of the work to the public by way of a broadcast of such work, or in the case of
a sound recording the work recorded in such sound recording on terms which the complainant
considers reasonable.
The copyright board, can a昀琀er providing a reasonable opportunity to the copyright owner to be
heard, subsequently conduc琀椀ng an inves琀椀ga琀椀on and being sa琀椀s昀椀ed, may order the Registrar of
Copyrights to issue a compulsory license to the complainant so that he can republish the work,
broadcast or communicate the work to the public, etc.
The primary objec琀椀ve of compulsory licensing is to make available the copyrighted work to the
general public. The copyrights give protec琀椀on to the work of writers, ar琀椀sts, etc. so that they can
bene昀椀t from the results of their hard work and crea琀椀vity. However, such work should be available to
the people for access. Some琀椀mes, the owners of copyright are not willing to part from their work so
in such a case, in order to make the work available to the people, compulsory licenses are granted by
the Registrar of Copyrights.
Compulsory Licensing under Patents:
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Compulsory licenses are authoriza琀椀ons given to a third-party by the Controller General to

make, use or sell a par琀椀cular product or use a par琀椀cular process which has been patented,
without the need of the permission of the patent owner. This concept is recognised at both
na琀椀onal as well as interna琀椀onal levels, with an express men琀椀on in both (Indian) Patent Act,
1970 and TRIPS Agreement. There are certain pre-requisite condi琀椀ons, given under sec琀椀ons
84-92, which need to be ful昀椀lled if a compulsory license is to be granted in favour of
someone.
As per Sec琀椀on 84, any person, regardless of whether he is the holder of the license of that
Patent, can make a request to the Controller for grant of a compulsory license on expiry of
three years, when any of the following condi琀椀ons is ful昀椀lled –
1. the reasonable requirements of the public with respect to the patented inven琀椀on
have not been sa琀椀s昀椀ed
2. the patented inven琀椀on is not available to the public at a reasonably a昀昀ordable price
3. the patented inven琀椀on is not worked in the territory of India.
Further, compulsory licenses can also be issued suo motu by the Controller under
sec琀椀on 92, pursuant to a no琀椀昀椀ca琀椀on issued by the Central Government if there is either
a "na琀椀onal emergency" or "extreme urgency" or in cases of "public non-commercial
use".
The Controller takes into account some more factors like the nature of the inven琀椀on, the
capability of the applicant to use the product for the public bene昀椀t and the
reasonability, but the ul琀椀mate discre琀椀on lies with him to grant the compulsory license.
Even a昀琀er a compulsory license is granted to a third party, the patent owner s琀椀ll has
rights over the patent, including a right to be paid for copies of the products made under
the compulsory licence.
However compulsory licenses may also be granted, when –
1. Sec琀椀on 92 A- For exports, under excep琀椀onal circumstances.

2. Sec琀椀on 92A- In the case of the na琀椀onal emergency, extreme urgency of public non-
commercial use by no琀椀昀椀ca琀椀on of the Central Government
3. Sec琀椀on 92 A (1) – To a country which has insu昀케cient or no manufacturing power in
the pharmaceu琀椀cal sector to address public health.
Cases pertaining to grant of compulsory license
India's 昀椀rst-ever compulsory license was granted by the Patent O昀케ce on March 9, 2012,
to Natco Pharma for the generic produc琀椀on of Bayer Corpora琀椀on's Nexavar, a life-saving
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medicine used for trea琀椀ng Liver and Kidney Cancer. Bayers sold this drug at exorbitant
rates, with one month's worth of dosage cos琀椀ng around Rs 2.8 Lakh. Natco Pharma
o昀昀ered to sell it around for Rs 9000, making it a昀昀ordable for people belonging to every
stratum. All the 3 condi琀椀ons of sec琀椀on 84 were ful昀椀lled and the decision was taken for
the bene昀椀t of the general public.
This medicine is used for trea琀椀ng Liver and Kidney Cancer, and one month’s worth of
dosage costs around Rs 2.8 Lakh. Natco Pharma o昀昀ered to sell it around for Rd 9000
making this poten琀椀ally lifesaving drug easily accessible to all parts of the society and not
just the rich people. The Government took this decision for the general public bene昀椀t.
However, it was heavily cri琀椀cized by the Pharmaceu琀椀cal Companies as they felt the
license should not have been given.
However, Natco Pharma is paying the royal琀椀es to Bayer at a rate of 6% of all sales on a
quarterly basis in accordance with the guidelines set by the United Na琀椀ons Development
Programme (UNDP).
X8. SPECIFICATION AND COMPLETE SPECIFICATION.
Answer:
Types of Specifications : According to Sec琀椀on 9 of the Indian Patent Act 1970, there exist
two types of patent speci昀椀ca琀椀ons
1) Provisional speci昀椀ca琀椀on; and
2) Complete speci昀椀ca琀椀on.
Provisional Specification
A provisional patent speci昀椀ca琀椀on is a preliminary applica琀椀on before 昀椀ling a usual patent. A

provisional speci昀椀ca琀椀on is a document, which broadly, though not completely, discloses an inven琀椀ve
concept. The provisional speci昀椀ca琀椀on is 昀椀led mainly to secure a “priority date” when the inventor is
in need of more 琀椀me to work out the details of his inven琀椀on and to perfect the same. Therefore, the
provisional speci昀椀ca琀椀on seldom discloses all relevant details of the inven琀椀on in a su昀케ciently clear
and complete manner. Though complete informa琀椀on is not required, it is recommended to provide,
in the provisional speci昀椀ca琀椀on, as much informa琀椀on as the inventor/applicant has about the
inven琀椀on at the 琀椀me of 昀椀ling because the provisional speci昀椀ca琀椀on will be used at a later stage to
determine whether the complete speci昀椀ca琀椀on claims the inven琀椀on that forms part of the
provisional speci昀椀ca琀椀on. Drawings, which relate to the inven琀椀on, may also be submi琀琀ed with the
provisional speci昀椀ca琀椀on and such drawings will be deemed as part of the speci昀椀ca琀椀on.
Where an applica琀椀on for a patent is accompanied by a provisional speci昀椀ca琀椀on, a complete

speci昀椀ca琀椀on shall be 昀椀led within twelve months from the date of 昀椀ling of the applica琀椀on, and if the
complete speci昀椀ca琀椀on is not so 昀椀led, the applica琀椀on shall be deemed to be abandoned {Sec. 9(1)].
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Complete Specification
A complete speci昀椀ca琀椀on is a document, which discloses all the details of an inven琀椀on in a su昀케ciently
clear and complete manner, as opposed to disclosing broad inven琀椀ve concept in the provisional
speci昀椀ca琀椀on, to enable a person having ordinary skill in the art to prac琀椀ce the inven琀椀on. The
complete speci昀椀ca琀椀on is further di昀昀erent from that of the provisional speci昀椀ca琀椀on because it must
conclude with a claim or a set of claims. As a fundamental aspect of speci昀椀ca琀椀on dra昀琀ing, one
should understand that each claim in the complete speci昀椀ca琀椀on de昀椀nes an inven琀椀on. Therefore,
each claim has a respec琀椀ve priority date associated with it.
Contents of a Speci昀椀ca琀椀on
A speci昀椀ca琀椀on should be dra昀琀ed and submi琀琀ed in Form 2 to the Indian Patent O昀케ce. A
provisional speci昀椀ca琀椀on, as opposed to the complete speci昀椀ca琀椀on, will not have a claim sec琀椀on.
The sec琀椀ons are as follows
1) Title; the complete speci昀椀ca琀椀on should begin with the 琀椀tle of the inven琀椀on
2) The preamble of the inven琀椀on; The preamble for a provisional speci昀椀ca琀椀on should state “The
following speci昀椀ca琀椀on describes the inven琀椀on”. Further, the preamble of a complete speci昀椀ca琀椀on
should state “The following speci昀椀ca琀椀on par琀椀cularly describes the inven琀椀on and the manner in
which it is to be performed.”
3) Technical 昀椀eld; The “Technical 昀椀eld” sec琀椀on in the speci昀椀ca琀椀on will men琀椀on as to what 昀椀eld the
inven琀椀on belongs to and par琀椀cularly states as to the subject ma琀琀er of the inven琀椀on.
4) Background; the objec琀椀ve of this sec琀椀on is to dis琀椀nguish the inven琀椀on at hand from that of what
is already being prac琀椀sed in the industry.
5) Objects; the objec琀椀ve of this sec琀椀on is to bring about the necessity of the inven琀椀on.
6) Brief descrip琀椀on of the drawings; this sec琀椀on will refer to all the 昀椀gures in “Drawing” part of the
speci昀椀ca琀椀on.
7). Examples if any
8). Speci昀椀c embodiments if any
9) Detailed descrip琀椀on; the objec琀椀ve of this sec琀椀on is to provide su昀케cient details of the inven琀椀on.
10) Claims (for a complete speci昀椀ca琀椀on); Claims are the sum and substance of the patent
speci昀椀ca琀椀on.
11) Abstract. An abstract essen琀椀ally is a summary of the ma琀琀er contained in the speci昀椀ca琀椀on.
Important differences between a provisional and a complete application
1. A Provisional speci昀椀ca琀椀on may be 昀椀led even in the case where the idea of the inven琀椀on is
not completely mature. But in the case of a complete speci昀椀ca琀椀on, there remains no scope
for further development as it requires the 昀椀ling of detailed claims.
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2. A provisional patent applica琀椀on is rela琀椀vely inexpensive as compared to a complete

applica琀椀on as the provisional speci昀椀ca琀椀on doesn’t include all the parts of a patent
applica琀椀on and doesn’t require the same amount of 琀椀me as a complete and so, as a result,
the professional fee charged is lesser although the statutory fees are the same.
3. As opposed to a complete speci昀椀ca琀椀on which needs to include all the parts of a patent
applica琀椀on, a provisional speci昀椀ca琀椀on need not include the claims and abstract.
4. A complete speci昀椀ca琀椀on is mandatory in order to secure a patent and can exist
independently. A provisional patent applica琀椀on has no existence if a corresponding complete
applica琀椀on is not 昀椀led within 12 months as the patent applica琀椀on is considered to be
abandoned.
9. Exclusive marke琀椀ng rights

Answer: The TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement,
which came into e昀昀ect from 01/01/1995, ushered in a new era of Intellectual Property law
in India and the developing world by introducing the system of Product Patent and Exclusive
Marke琀椀ng Rights.
Product Patent is the gran琀椀ng of a patent to the product irrespec琀椀ve of the process used for
obtaining the product. Once you obtain a patent on the product, then one is precluded from
manufacturing that product, even though with a di昀昀erent process.
The term Exclusive Marketing Rights (EMRs) means the right to sell or distribute
the ar琀椀cle or substance covered in a patent or patent applica琀椀on in the country. EMRs will
be granted when there is no system of product patent in a country. It is only a temporary
arrangement which will cease to have e昀昀ect when the product patent regime is introduced.
Loopholes in the agreement:
a). The 昀椀rst shortcoming is regarding the transi琀椀onal arrangements and the grant of EMRs.
Ar琀椀cle 65.3 of the TRIPS agreement lays down that developing countries may have a
transi琀椀on period of 5 years to bring its laws in conformity with the TRIPS. Further, Ar琀椀cle
65.4 provides that this period may be extended to 昀椀ve years more if that country does not
provide for product patent. Therefore, a developing country having no provision for product
patent may have a transi琀椀on period of 10 years (i.e before 2005) if it chooses.
Ar琀椀cle 70.8 of the agreement further states that where a Member does not make available
as of the date of entry into force of the WTO Agreement patent protec琀椀on for
pharmaceu琀椀cal and agricultural chemical products (i.e. product patents), that Member shall
provide as from the date of entry into force of the WTO Agreement a means by which
applica琀椀ons for patents for such inven琀椀ons can be 昀椀led. This is the mailbox provision.
Further, according to Ar琀椀cle 70.9 of the agreement, where a product is the subject of a
patent applica琀椀on in a Member state (i.e. in the mailbox), exclusive marke琀椀ng rights shall be
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granted, for a period of 昀椀ve years a昀琀er obtaining marke琀椀ng approval in that country or un琀椀l
a product patent is granted or rejected in that Member state, whichever period is shorter,
provided that, subsequent to the entry into force of the WTO Agreement, a patent
applica琀椀on has been 昀椀led and a patent granted for that product in another state and
marke琀椀ng approval obtained in such other state.
Reading Ar琀椀cle 65.3, 65.4, 70.8 and 70.9 together, it is clear that a developing country which
does not provide for product patents will have at the most, 10 years to amend its patent
laws, and while an applica琀椀on for product patent is pending during these years, it will
provide EMRs to these products for a period of 昀椀ve years un琀椀l its patent laws are amended
accordingly.
Clearly, there might be a situa琀椀on where EMRs have been granted for a period of 5 years
but the laws have s琀椀ll not been amended. If an inventor of a pharmaceu琀椀cal product
obtained exclusive marke琀椀ng right in 1997 and made his product known and widely used in
a developing country having no product patents, his compe琀椀tors could enter the market in
the year 2002 and free-ride on the inventor's marke琀椀ng e昀昀orts for three years. Only in the
year 2005 could the inventor again enjoy the exclusive rights of a patent owner (if the
patent were granted then).
b). The second shortcoming is regarding the condi琀椀ons needed to be ful昀椀lled for obtaining
an EMR- misuse of EMRs
Ar琀椀cle 70.9 of the agreement states that EMRs lay down the following condi琀椀ons of
obtaining an EMR for a par琀椀cular product-
1. A patent applica琀椀on is pending in that member country where EMR is being sought.
2. A patent has been granted for that product in another member country.
3. Marke琀椀ng approval has been obtained in such other member country.
There may be a case where a product may be very useful in one country (and hence a
patent has been granted there) but it is totally worthless in another country but market
approval has been obtained by the virtue of its popularity in the former country. For
instance, consider a pill that has been invented by a drug manufacturing company of U.S.A
which maintains the body temperature in extremely cold condi琀椀ons. This pill will be very
useful in countries like Russia, Sweden, Norway, Iceland, Canada and other polar countries
where temperatures dip to -35 degrees Celsius. It will be easily granted a patent in those
countries. However, the company may want to market its product in India seeing its
immense marke琀椀ng possibili琀椀es. The pill is very popular all over the world and hence, meets
the market approval in India also. If the company 昀椀les for a patent in India, it will be granted
an EMR even if the product is not at all required. Therefore, the company can reap in the
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bene昀椀ts of this shortcoming un琀椀l the period of EMR expires even though its patent
applica琀椀on is rejected a昀琀erwards.
{The term EMR means the exclusive marke琀椀ng rights to sell or distribute the ar琀椀cle or substance
covered in a patent or patent applica琀椀on in the country. The purpose of EMRs is to ensure that the
innovator can market free copies of his product.
Chapter IVA incorporated the relevant provisions. Sec琀椀on 24 of the Act s琀椀pulates that India
has to receive applica琀椀ons for patents containing claims for drugs and agrochemical
products with the condi琀椀on that such applica琀椀ons can be taken up for considera琀椀on of
gran琀椀ng EMR if an applica琀椀on is made.
An exclusive marke琀椀ng contract agreement clearly lays out the obliga琀椀ons of each party
involved with the agreement and the por琀椀on of the pro昀椀ts each party is en琀椀tled to.
Addi琀椀onal areas to consider for the agreement include:
 Marke琀椀ng campaigns.
 Sales visibility.
 Direct-to-salesperson support.
 Coaching of salespersons.
EMR en琀椀tles the EMR holder to have the exclusive right by himself, his agents or licensees
to sell or distribute in India the ar琀椀cle or the substance on and from the date of approval
granted by the Controller for a period of 昀椀ve years or 琀椀ll the date of grant or rejec琀椀on of the
patent applica琀椀on, whichever is earlier.
The provisions for the grant of EMR were introduced in the Patents Act, 1970 by the Patents
(Amendment) Act, 1999, to bring the Patents Act, 1970 in compliance with Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS required inser琀椀on of
EMR provisions with e昀昀ect from January 1, 1995, pending introduc琀椀on of the product
patent regime in the developing countries. The product patent regime is scheduled to come
into e昀昀ect on January 1, 2005.
EMR's can be granted in respect of substances intended for use or capable of being used as
medicine or drug. However, no EMR can be granted in respect of chemical substances which
are ordinarily used as intermediates in the prepara琀椀on or manufacture of any of the
medicines or substances.
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By the amendment of 1999, Patent O昀케ces were required to accept the product patent
applica琀椀ons and keep them in, what is known as the "Black Box" 琀椀ll January 1, 2005, when
such applica琀椀ons will be examined for the grant of patent.
On September 5, 2003, India's Controller General of Patents, Designs and Trade Marks
granted the 昀椀rst-ever exclusive marke琀椀ng right ('EMR') in India to United Phosphorous for
sale of its fungicide, which is sold under the brand 'SAAF'.}
LONG ANSWERS
10. Explain the nature, meaning and classi昀椀ca琀椀on of intellectual property with suitable examples.
How does it di昀昀er from other forms of property? Why it should be protected.
Answer:
Meaning and nature of the intellectual property
Intellectual property means crea琀椀ons of the human mind and intelligence and popularly known as
'IP'. Intellectual property rights are legal rights, these legal rights resul琀椀ng from intellectual ac琀椀vity in
the industrial, scien琀椀昀椀c, literary or ar琀椀s琀椀c 昀椀elds. Hence, inven琀椀ons, literary and ar琀椀s琀椀c works, and
symbols, names, images, and designs used in commerce are called intellectual property. Recogni琀椀on
and protec琀椀on of these rights are of recent origin.
Law of Intellectual Property Rights (IPR):
IPR means intellectual property law and this intellectual property law deals with the rules for
securing and enforcing legal rights to inven琀椀ons, designs, and ar琀椀s琀椀c works. Just as the law protects
ownership of personal property and real estate, so too does it protect the exclusive control of
intangible assets. The purpose of these laws is to give an incen琀椀ve for people to develop crea琀椀ve
works that bene昀椀t society, by ensuring they can pro昀椀t from their works without fear of
misappropria琀椀on by others and this Intellectual property is the product of the human intellect
including crea琀椀vity concepts, inven琀椀ons, industrial models, trademarks, songs, literature, symbols,
names, brands,....etc. Intellectual Property Rights do not di昀昀er from other property rights. They
allow their owner to completely bene昀椀t from his/her product which was ini琀椀ally an idea that
developed and crystallized. They also en琀椀tle him/her to prevent others from using, dealing or
tampering with his/her product without prior permission from him/her. He/she can legally sue them
and force them to stop and compensate for any damages.
Intellectual property is divided into two categories:
 Industrial Property: includes patents for inven琀椀ons, trademarks, industrial designs and
geographical indica琀椀ons.
 Copyright and Related Rights: covers literary works (such as novels, poems and plays), 昀椀lms,
music, ar琀椀s琀椀c works (e.g., drawings, pain琀椀ngs, photographs and sculptures) and
architectural design. Rights related to copyright include those of performing ar琀椀sts in their
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performances, producers of phonograms in their recordings, and broadcasters in their radio

and television programs.
Different types of intellectual property rights:
1. Patent - A patent is an exclusive right granted for an inven琀椀on – a product or process that
provides a new way of doing something, or that o昀昀ers a new technical solu琀椀on to a problem.
 A patent provides patent owners with protec琀椀on for their inven琀椀ons. Protec琀椀on is
granted for a limited period, generally 20 years.
 Patent protec琀椀on means an inven琀椀on cannot be commercially made, used, distributed or
sold without the patent owner’s consent.
 A patent owner has the right to decide who may – or may not – use the patented
inven琀椀on for the period during which it is protected.
 An inven琀椀on must, in general, ful昀椀ll the following condi琀椀ons to be protected by a patent.
It must be of prac琀椀cal use; it must show an element of “novelty”, meaning some new
characteris琀椀c that is not part of the body of exis琀椀ng knowledge in its par琀椀cular technical
昀椀eld.
 The inven琀椀on must show an “inven琀椀ve step” that could not be deduced by a person with
average knowledge of the technical 昀椀eld. Its subject ma琀琀er must be accepted as
“patentable” under law.
2. Trademark - A trademark is a dis琀椀nc琀椀ve sign that iden琀椀昀椀es certain goods or services produced
or provided by an individual or a company. The system helps consumers to iden琀椀fy and purchase
a product or service based on whether its speci昀椀c characteris琀椀cs and quality – as indicated by its
unique trademark – meet their needs.
 The protec琀椀on ensures that the owners of marks have the exclusive right to use them to
iden琀椀fy goods or services or to authorize others to use them in return for Trademark
payment.
 Trademarks may be one or a combina琀椀on of words, le琀琀ers and numerals. They may
consist of drawings, symbols or three-dimensional signs, such as the shape and packaging
of goods.
3. Industrial design - An industrial design refers to the ornamental or aesthe琀椀c aspects of an

ar琀椀cle. A design may consist of three-dimensional features, such as the shape or surface of an
ar琀椀cle, or two-dimensional features, such as pa琀琀erns, lines or color.
 Industrial designs are applied to a wide variety of industrial products and handicra昀琀s;
from technical and medical instruments to watches, jewellery and other luxury items;
from housewares and electrical appliances to vehicles and architectural structures; from
tex琀椀le designs to leisure goods.
 To be protected under most na琀椀onal laws, an industrial design must be new or original
and non-func琀椀onal. This means that an industrial design is primarily of an aesthe琀椀c
nature, and any technical features of the ar琀椀cle to which it is applied are not protected by
the design registra琀椀on.
 As a rule, to be registrable, the design must be “new” or “original”.
4. Geographical origin - A geographical indica琀椀on is a sign used on goods that have a speci昀椀c
geographical origin and possess quali琀椀es or a reputa琀椀on due to that place of origin. Most
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commonly, a geographical indica琀椀on consists of the name of the place of origin of the goods.
Agricultural products typically have quali琀椀es that derive from their place of produc琀椀on and are
in昀氀uenced by speci昀椀c local geographical factors, such as climate and soil.
The use of geographical indica琀椀ons is not limited to agricultural products. They may also
highlight speci昀椀c quali琀椀es of a product that are due to human factors found in the product’s
place of origin, such as speci昀椀c manufacturing skills and tradi琀椀ons. The place of origin may be a
village or town, a region or a country. An example of the la琀琀er is “Switzerland” or “Swiss”,
perceived as a geographical indica琀椀on in many countries for products made in Switzerland and,
in par琀椀cular, for watches.
5. Copyrights - Copyright laws grant authors, ar琀椀sts and other creators protec琀椀on for their literary
and ar琀椀s琀椀c crea琀椀ons, generally referred to as “works”.
Works covered by copyright include, but are not limited to: novels, poems, plays, reference
works, newspapers, adver琀椀sements, computer programs, databases, 昀椀lms, musical
composi琀椀ons, choreography, pain琀椀ngs, drawings, photographs, sculpture, architecture, maps
and technical drawings.
6. Layout designs of integrated circuits - A Layout design of integrated circuits is a form of
intellectual property that gives an exclusive right to the registered proprietor of layout design
and also to the registered users. Integrated Circuit Layout Designs are crea琀椀ons of the human
mind. Integrated circuits are u琀椀lized in a large range of products, including ar琀椀cles of everyday
use, such as watches, television sets, washing machines, computers, automobiles and all
electronic goods etc. Intellectual property law gives protec琀椀on to the rights of these layout
designs of integrated circuits. E.g. TV circuits, Computer circuits, Cell phone circuits etc.
7. Protec琀椀on of undisclosed informa琀椀on (Trade secrets): Trade secrets are a form of intellectual
property that gives an exclusive right to the business owners. A trade secret refers to data or
informa琀椀on rela琀椀ng to the business which is not generally known to the public and which the
owner reasonably a琀琀empts to keep secret and con昀椀den琀椀al. Trade secrets cannot be
misappropriated, sabotaged, lost or stolen because of compe琀椀琀椀on. Intellectual property law
gives protec琀椀on against infringement of the right to trade secret. E.g. Customer list, Business
informa琀椀on, Employee details, 昀椀nancial records, business plans, strategies, formulas, designs
etc.
Another advantage of trade secrets is that trade secret protec琀椀on is not limited in 琀椀me. Thus, a
trade secret may con琀椀nue inde昀椀nitely as long as it con琀椀nues to meet the de昀椀ni琀椀on of a trade
secret. A classic example is a secret formula for Coca Cola. Had John Pemberton decided to
patent the formula for Coca Cola when he invented it in 1886, the formula would now be free to
be copied by anyone. Instead, Coca Cola remains a leader in the world’s so昀琀 drink industry based
on its trade secret formula, over 110 years later.
8. Plant varie琀椀es - A plant variety is a form of intellectual property that gives an exclusive right to
the producer to sell and propaga琀椀ng material of the new plant variety for a certain period of
琀椀me. Intellectual property law gives protec琀椀on to new plant varie琀椀es and encourages
commercial plant breeders to invest the resources; labour and 琀椀me needed to improve exis琀椀ng
plant varie琀椀es by ensuring that breeders receive adequate remunera琀椀on when they market the
propaga琀椀ng material of those improved varie琀椀es. Plant breeders who have discovered or
developed a new plant variety can have exclusive monopoly control over that variety.
Nature of Intellectual Property
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Intellectual proper琀椀es have their own peculiar features. These features of intellectual proper琀椀es
may serve to iden琀椀fy intellectual proper琀椀es from other types of proper琀椀es. Thus, we will discuss
them in brief.
1. Territorial
Any intellectual property issued should be resolved by na琀椀onal laws. Why is it an issue? Because
intellectual property rights have one characteris琀椀c which other na琀椀onal rights do not have. In
ownership of intellectual property of immovable proper琀椀es, issues of cross borders are not
probable. But in intellectual proper琀椀es, it is common. A 昀椀lm made in Hollywood can be seen in other
countries. The market is not only the local one but also interna琀椀onal. If the design in China is
imitated by another person in France which law would be applicable?
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most intellectual property
rights cannot be implemented in prac琀椀ce as soon as the owner got exclusive rights. Most of them
need to be tested by some public laws. The creator or author of an intellectual property enjoys rights
inherent in his work to the exclusion of anybody else.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy
between intellectual property rights and the material object in which the work is embodied.
Intellectual property can be bought, sold, or licensed or hired or a琀琀ached.
4. Independence
Di昀昀erent intellectual property rights subsis琀椀ng in the same kind of object. Most intellectual property
rights are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual property a琀琀empts to
preserve and 昀椀nd adequate reconcilia琀椀on between two compe琀椀ng interests. On the one hand, the
intellectual property right’s holders require adequate remunera琀椀on and on the other hand,
consumers try to consume works without much inconvenience. Is limita琀椀on unique for intellectual
property?
11. Salient features of TRIPS agreement.
Answer: The Trade-Related Aspects of Intellectual Property Agreement (‘TRIPS’) is a

mul琀椀lateral agreement administered by the World Trade Organisa琀椀on (“WTO”) that came into e昀昀ect
on 1st January 1995.
Intellectual property rights are the rights given to persons over the crea琀椀ons of their minds. They
usually give the creator an exclusive right over the use of his/her crea琀椀on for a certain period of
琀椀me. TRIPS is an interna琀椀onal treaty administered by the World Trade Organiza琀椀on (WTO) which
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sets down minimum standards for most 昀椀rms of intellectual property (IP) regula琀椀on within all
member countries of the World Trade Organiza琀椀on. TRIPS speci昀椀es enforcement procedures,
remedies, and dispute resolu琀椀on procedures. TRIPS Agreement contains 7 Parts and 73 Ar琀椀cles. Part
I deals with general principles and objec琀椀ves of TRIPS and Part II provides the minimum standards
each country must provide for various forms of intellectual property. This Agreement o昀昀ers
protec琀椀on to intellectual property with an enforceable obliga琀椀on of the Member States. TRIPS
Agreement sets out minimum standards of intellectual property protec琀椀on for the Member States.
The TRIPS Agreement is to date the most comprehensive mul琀椀lateral agreement on intellectual
property. It contains speci昀椀c provisions in the following areas of intellectual property: copyright and
related rights (i.e. the rights of performers, producers of sound recordings and broadcas琀椀ng
organiza琀椀ons); trademarks; geographical indica琀椀ons; industrial designs; patents, including the
protec琀椀on of new varie琀椀es of plants; the layout-designs of integrated circuits; and undisclosed
informa琀椀on, including trade secrets and test data.
Main features TRIPS
The following are the three main features of the TRIPS Agreement. They are:
Standards
TRIPS Agreement sets out the minimum standards of protec琀椀on to be provided by each Member.
Each of the main elements of protec琀椀on is de昀椀ned, namely the subject-ma琀琀er to be protected, the
rights to be conferred and permissible excep琀椀ons to those rights, and the minimum dura琀椀on of
protec琀椀on. The Agreement sets these standards to implement the provisions of conven琀椀ons of the
WIPO, the Paris Conven琀椀on and the Berne Conven琀椀on etc.
Enforcement
TRIPS Agreement makes provisions which deal with domes琀椀c procedures and remedies for the
enforcement of intellectual property rights. In addi琀椀on, it contains provisions on civil and
administra琀椀ve procedures and remedies, provisional measures, special requirements related to
border measures and criminal procedures, which specify, in a certain amount of detail, the
procedures and remedies that must be available for the enforcement of rights.
Dispute se琀琀lement
TRIPS Agreement makes disputes between WTO Members in respect of the TRIPS obliga琀椀ons subject
to the WTO's dispute se琀琀lement procedures. In addi琀椀on, the Agreement provides for certain basic
principles, such as na琀椀onal and most-favoured-na琀椀on treatment, and some general rules to ensure
that procedural di昀케cul琀椀es in acquiring or maintaining IPRs do not nullify the substan琀椀ve bene昀椀ts
that should 昀氀ow from the Agreement.
Object of TRIPS
The Preamble of the TRIPS Agreement sets out the following objects. They are;
1. to reduce distor琀椀ons and impediments to interna琀椀onal trade

2. to promote e昀昀ec琀椀ve protec琀椀on of intellectual property rights
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3. to enforce intellectual property rights

4. to eliminate the barriers to legi琀椀mate trade
5. to promote technological innova琀椀ons
6. to facilitate the transfer and dissemina琀椀on of technology
7. to provide a mutual advantage to producers and users to maintain a balance of rights and
obliga琀椀ons
8. to provide a robust dispute se琀琀lement mechanism.
New rules and disciplines
TRIPS Agreement recognizes the need for new rules and disciplines concerning,
a. the applicability of the basic principles of GATT, 1994 and relevant interna琀椀onal intellectual
property agreements or conven琀椀ons.
b. the provision of adequate standards and principles concerning the availability, scope and use of
trade-related intellectual property rights
c. the provision of e昀昀ec琀椀ve and appropriate means for the enforcement of trade-related intellectual
property rights, taking into account di昀昀erences in na琀椀onal legal systems
d. the provision of e昀昀ec琀椀ve and expedi琀椀ous procedures for the mul琀椀lateral preven琀椀on and
se琀琀lement of disputes between governments and
e. transi琀椀onal arrangements aiming at the fullest par琀椀cipa琀椀on in the results of the nego琀椀a琀椀ons
National Treatment
Na琀椀onal treatment is an integral part of many World Trade Organiza琀椀on agreements. The principle
of na琀椀onal treatment is provided under Ar琀椀cle 3 of the TRIPS Agreement. Na琀椀onal treatment is a
principle in customary interna琀椀onal law vital to many treaty regimes. It essen琀椀ally means trea琀椀ng
foreigners and locals equally. Under na琀椀onal treatment, if a State grants a par琀椀cular right, bene昀椀t or
privilege to its own ci琀椀zens, it must also grant those advantages to the ci琀椀zens of other states while
they are in that country. In the context of interna琀椀onal agreements, a State must provide equal
treatment to those ci琀椀zens of other states that are par琀椀cipa琀椀ng in the agreement. Imported and
locally-produced goods should be treated equally, at least a昀琀er the foreign goods have entered the
market. This trade rule aims to prevent internal taxes or other regula琀椀ons from being used as a
subs琀椀tute for tari昀昀 protec琀椀on. However, na琀椀onal treatment is subject to the excep琀椀ons already
provided in the Paris Conven琀椀on (1967), the Berne Conven琀椀on (1971), the Rome Conven琀椀on or the
Treaty on Intellectual Property in Respect of Integrated Circuits etc. Thus, na琀椀onal treatment is one
of the cornerstones of WTO trade law.
Most Favoured Nation
Most Favoured Na琀椀on (MFN) is an integral part of many World Trade Organiza琀椀on agreements. The
principle of (MFN) is provided under Ar琀椀cle 4 of the TRIPS Agreement. In interna琀椀onal economic
rela琀椀ons and interna琀椀onal poli琀椀cs, MFN is a status or level treatment accorded by one State to
another in interna琀椀onal trade. The term 'Most Favoured Na琀椀on' means the country which is the
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recipient of this treatment must, nominally, receive equal trade advantages as the most favoured
na琀椀on by the country gran琀椀ng such treatment. Trade advantages include low tari昀昀s or high import
quotas. In e昀昀ect, a country that has been accorded MFN status may not be treated less
advantageously than any other country with MFN status by the promising country. The members of
the World Trade Organiza琀椀on (WTO) agree to accord MFN status to each other. Excep琀椀ons allow for
preferen琀椀al treatment of developing countries, regional free trade areas and a customs union,
together with the principle of na琀椀onal treatment, MFN is one of the cornerstones of WTO trade law.
TRIPS-Areas of concern
TRIPS deals with the following Intellectual Property Rights (IPR). They are:
1. Copyright related rights: Sec琀椀on 1: Ar琀椀cles 9-14
The members shall comply with the provisions of the Berne Conven琀椀on, 1971. Copyright protec琀椀on
shall extend to expressions and not to ideas, procedures, and methods of opera琀椀on or mathema琀椀cal
concepts. Computer programs and compila琀椀ons of data shall be protected as literary works under
the Berne Conven琀椀on, 1971. Ar琀椀cle 14 protects performers, producers of phonograms or sound
recordings and broadcas琀椀ng organiza琀椀ons
2. Trademarks: Sec琀椀on 2: Ar琀椀cles 15-21
Any sign, or any combina琀椀on of signs, capable of dis琀椀nguishing the goods or services of one
undertaking from those of other undertakings, shall be capable of cons琀椀tu琀椀ng a trademark. They
are eligible for registra琀椀on as trademarks. Members may require, as a condi琀椀on of registra琀椀on, that
signs be visually percep琀椀ble. The owner of a registered trademark shall have the exclusive right to
prevent all others from using it. Ini琀椀al registra琀椀on and each renewal of registra琀椀on of a trademark
shall be for a term of not less than seven years.
3. Geographical indica琀椀ons: Sec琀椀on 3: Ar琀椀cles 22-24
Geographical indica琀椀ons are, for the purposes of this Agreement, indica琀椀ons which iden琀椀fy a goods
as origina琀椀ng in the territory of a Member, or a region or locality in that territory, where a given
quality, reputa琀椀on or other characteris琀椀cs of the goods is essen琀椀ally a琀琀ributable to its geographical
origin. Members shall provide the legal means for interested par琀椀es rela琀椀ng to the geographical
origin of the goods, to check unfair compe琀椀琀椀on, to give addi琀椀onal protec琀椀on for geographical
indica琀椀ons like wines and spirits. It must facilitate interna琀椀onal nego琀椀a琀椀ons.
4. Industrial designs: Sec琀椀on 4: Ar琀椀cles 25-26
Members shall provide for the protec琀椀on of independently created industrial designs that are new
or original. The owner of a protected industrial design shall have the right to prevent third par琀椀es
not having the owner's consent from making, selling or impor琀椀ng ar琀椀cles bearing or embodying a
design which is a copy, or substan琀椀ally a copy, of the protected design when such acts are
undertaken for commercial purposes. The dura琀椀on of available protec琀椀on is 10 years.
5. Patents: Sec琀椀on 5: Ar琀椀cles 27-34
Patents shall be available for any inven琀椀ons, whether products or processes, in all 昀椀elds of
technology, provided that they are new, involve an inven琀椀ve step and are capable of industrial
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applica琀椀on. A patent shall confer on its owner the certain exclusive rights. Ar琀椀cle 29 provides
condi琀椀ons on patent applicants. An opportunity for judicial review of any decision to revoke or
forfeit a patent shall be available under Ar琀椀cle 32. The term of protec琀椀on is twenty years from the
昀椀ling date.
6. Layout designs (Topographies) of integrated circuits: Sec琀椀on 6: Ar琀椀cles 35-38
Members agree to protect the layout-designs (topographies) of integrated circuits. Members

requiring registra琀椀on as a condi琀椀on of protec琀椀on, the term of protec琀椀on of layout-designs is 10
years counted from the date of 昀椀ling an applica琀椀on for registra琀椀on or from the 昀椀rst commercial
exploita琀椀on.
7. Protec琀椀on of undisclosed informa琀椀on: Sec琀椀on 7: Ar琀椀cle 39
In the course of ensuring e昀昀ec琀椀ve protec琀椀on against unfair compe琀椀琀椀on as provided in Ar琀椀cle 10 of
the Paris Conven琀椀on, Members shall protect undisclosed informa琀椀on. Natural and legal persons
shall have the possibility of preven琀椀ng informa琀椀on lawfully within their control from being disclosed
to, acquired by, or used by others without their consent in a manner contrary to honest commercial
prac琀椀ces so long as such informa琀椀on is secret and has commercial value because of its secrecy.
8. Control of an琀椀-compe琀椀琀椀ve prac琀椀ces in contractual licenses: Sec琀椀on 8: Ar琀椀cles 40
Members agree that some licensing prac琀椀ces or condi琀椀ons pertaining to intellectual property rights
which restrain compe琀椀琀椀on may have adverse e昀昀ects on trade and may impede the transfer and
dissemina琀椀on of technology. Members are not prevented from specifying in their legisla琀椀on
licensing prac琀椀ces or condi琀椀ons that may in par琀椀cular cases cons琀椀tute an abuse of intellectual
property rights having an adverse e昀昀ect on compe琀椀琀椀on in the relevant market. Member may adopt
appropriate measures to prevent or control such prac琀椀ces.
12. INFRINGEMENT of COPYRIGHT AND ITS EXCEPTIONS
Answer: Infringement means breach or viola琀椀on. The owner of a copyrighted work has the exclusive
right to do certain acts such as publica琀椀on, the performance of his work, reproduc琀椀on, sale of the
work etc. If any person does any of these acts without the authority of the owner, he will be
commi琀�ng an infringement of the copyright in the work. According to the Supreme Court of the
United States of America infringement of copyright is a trespass on a private domain owned and
occupied by the owner of the copyright. Viola琀椀on of copyright law by any person without a license
or permission by the owner of the crea琀椀on is called an infringement of copyright. Copyright law
provides exclusive legal rights to an author to get all kinds of bene昀椀ts on his crea琀椀on.
As per Sec琀椀on 51 of chapter XI of the Indian copyright act, using any copyrighted work without the
permission of a copyright owner is an infringement of copyright law. Any person who does the
infringement of copyright is solely held responsible for his misconduct
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And the following instances could be considered as an infringement of

copyright:
1. Performing publicly without any consent of the owner where such performance cons琀椀tutes
an infringement of copyright
2. Using copyrighted work for any kind of business which brings 昀椀nancial bene昀椀t
3. Distribu琀椀ng infringing copies for the purpose of trade or import of to such an extent so as to
a昀昀ect prejudicially the interest of the owner of the copyright
4. Reproduc琀椀on of substan琀椀al part of copyrighted work in any material form
5. Circula琀椀ng among the unauthorized persons
6. Adop琀椀on or transla琀椀on of copyright work without any permission
7. Resale or ren琀椀ng of copyrighted material to others
8. Public exhibi琀椀on of infringing copies by way of trade and
9. Importa琀椀on of infringing copies into India
Certain acts not to be an infringement of copyright. —
Sec琀椀on 52 gives a long list of acts which do not cons琀椀tute an infringement of copyright. These are in
the nature of excep琀椀ons to the exclusive rights conferred upon the copyright owner. They also serve
as a defence in an ac琀椀on for infringement of copyright.
The following acts shall not constitute an infringement of copyright,

namely
1. Fair dealing with any work, not being a computer programme, for the purposes of—
A. private or personal use, including research;
B. cri琀椀cism or review, whether of that work or any other work;
C. the repor琀椀ng of current events and current a昀昀airs, including the repor琀椀ng of a lecture
delivered in public.
2. The making of copies or adapta琀椀on of a computer programme by the lawful possessor of a
copy of such computer programme, from such copy—
A. in order to u琀椀lise the computer programme for the purpose for which it was supplied; or
B. to make back-up copies purely as temporary protec琀椀on against loss, destruc琀椀on or damage
in order only to u琀椀lise the computer programme for the purpose for which it was supplied;
3. By a cinematographic 昀椀lm or broadcast or by any means of photographs.
4. Reproduc琀椀on for the purpose of the judicial proceeding or a report of the judicial proceeding.
5. Publica琀椀on or reproduc琀椀on of the musical, literary, drama琀椀c or ar琀椀s琀椀c work in any work
prepared by the secretariat of the legislature.
6. The reproduc琀椀on of any literary, musical work or drama琀椀c in a cer琀椀昀椀ed copy made or supplied
in lines with any law for the 琀椀me being in force.
7. The recita琀椀on or reading in public of any reasonable extract from the published literary or
drama琀椀c work.
8. The publica琀椀on in the collec琀椀on, primarily composed of non-copyright ma琀琀er, bona 昀椀de
intended for the sake of educa琀椀onal ins琀椀tu琀椀ons.
9. The making of sound if made with or by the license or consent of the owner of the right in the
work.
10. Reproduc琀椀on by teacher or pupil in the course of instruc琀椀on or exams
11. Performance to the course of ac琀椀vi琀椀es in educa琀椀onal ins琀椀tu琀椀ons
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12. Making and using of sound recordings without pro昀椀t in closed rooms
13. Performance of literary works by an amateur club or society
14. Reproduc琀椀on of an unpublished work for research and private study
15. Reproduc琀椀on or publica琀椀on of any ma琀琀er published in O昀케cial Gaze琀琀e
16. Reproduc琀椀on or publica琀椀on of any ma琀琀er published in Govt. Reports
17. Reproduc琀椀on or publica琀椀on of any ma琀琀er published in other bodies
18. Reproduc琀椀on of un-prohibited judgment, or order of Court, Tribunal
19. Produc琀椀on or publica琀椀on of the transla琀椀on of Acts of Legislature or Rules
THE DOCTRINE OF FAIR DEALING
The term “fair dealing” has not been de昀椀ned in the Act. It is a legal doctrine, which allows a person
to make limited use of copyrighted work without the permission of the owner.
Whether a person’s use of copyright material is “fair” would depend en琀椀rely upon the facts and
circumstances of a given case. The line between “fair dealing” and infringement is a thin one. In
India, there are no set guidelines that de昀椀ne the number of words or passages that can be used
without permission from the author. Only the Court applying basic common sense can determine
this. It may, however, be said that the extracted por琀椀on should be such that it does not a昀昀ect the
substan琀椀al interest of the Author. Fair dealing is a signi昀椀cant limita琀椀on on the exclusive right of the
copyright owner. It has been interpreted by the courts on several occasions by judging the economic
impact it has on the copyright owner. Where the economic impact is not signi昀椀cant, the use may
cons琀椀tute fair dealing.
The fair nature of the dealing depends on the following four factors:
1. the purpose of use
2. the nature of the work
3. the amount of the work used, and
4. the e昀昀ect of the use of the work on the original
In the case of Kartar Singh Giani v. Ladha Singh, the High court held that:
“Two points have been urged in connec琀椀on with the meaning of the expression fair, in fair dealing (1)
that in order to cons琀椀tute unfairness there must be an inten琀椀on to compete and to derive pro昀椀t from
such compe琀椀琀椀on and (2) that unless the mo琀椀ve of the infringer was unfair in the sense of being
improper the dealing would be fair.”
Case Law: The UNIVERSITY OF OXFORD VS. RAMESHWARI PHOTOCOPY SERVICES.
The infamous DU photocopy case was a landmark copyright viola琀椀on case in India. The genesis of
this case lies in a prevalent prac琀椀ce in the University of Delhi, wherein photocopy shops copy
reading material from prescribed textbooks and sell it to students at subsidized rates.
To contest the same, the chancellors, masters, and scholars of the University of Oxford 昀椀led a case
against Rameshwari Photocopy Services, alleging them of copyright infringement under Sec琀椀on 2(o)
of the Copyright Act.
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OUTCOME: The publishers had to withdraw their lawsuits against the defendants, as it was observed
that the shop had a legal license to operate within the North Campus premises of DU.
LESSON: Having a Reprographics license goes a long way. It saves you money and gives you the
authority to carry on your opera琀椀ons without invi琀椀ng trouble.
Copyright is not a divine right and it is intended to increase the harvest of knowledge, not impede it.
Photocopying with the objec琀椀ve of spreading knowledge and fostering educa琀椀on doesn’t cons琀椀tute
copyright infringement.
13. DEFINE COPYRIGHT. EXPLAIN THE RIGHTS OF THE AUTHORS AND OWNERS (ECONOMIC AND
MORAL).
Answer: Copyright is a property right, which exists to protect the expression of ideas and the use of
works by authors and publishers of various types of works, including literary (e.g. books,
newspapers, magazines and journals), ar琀椀s琀椀c works (including photographs, pain琀椀ngs, sculptures,
diagrams), musical works, sound recordings, 昀椀lms and broadcasts.
Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Sec琀椀on
14 of the Act. These rights can be exercised only by the owner of the copyright or by any other
person who is duly licensed in this regard by the owner of the copyright. These rights include the
right of adapta琀椀on, right of reproduc琀椀on, right of publica琀椀on, right to make transla琀椀ons,
communica琀椀on to public etc.
Copyright protec琀椀on is conferred on all Original literary, ar琀椀s琀椀c, musical or drama琀椀c,

cinematography and sound recording works. Original means, that the work has not been copied
from any other source. Copyright protec琀椀on commences the moment a work is created, and its
registra琀椀on is op琀椀onal. However, it is always advisable to obtain a registra琀椀on for be琀琀er protec琀椀on.
Copyright registra琀椀on does not confer any rights and is merely a prima facie proof of an entry in
respect of the work in the Copyright Register maintained by the Registrar of Copyrights.
As per Sec琀椀on 17 of the Act, the author or creator of the work is the 昀椀rst owner of the copyright. An
excep琀椀on to this rule is that the employer becomes the owner of the copyright in circumstances
where the employee creates a work in the course of and scope of employment.
Authors’ rights belong to the author of a literary or ar琀椀s琀椀c work and are composed of economic and
moral rights. The Copyright Act, 1957 provides copyright protec琀椀on in India. It confers copyright
protec琀椀on in the following two forms:
(A) Economic rights of the author, and
(B) Moral Rights of the author.
(A) Economic Rights: Economic rights are property rights that enable the author to protect his/her
work, authorize and prevent uses of the work. They can be transferred or licensed. Each use of an
author’s economic rights requires payment unless the author decides otherwise.
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Economic rights are those rights which help the author to reap economic bene昀椀ts. These rights have
been recognized in one form or the other since the 昀椀昀琀eenth century. As per Sec琀椀on 14 of the
Copyright Act, 1957, di昀昀erent rights are recognized for the works considering its nature. The sec琀椀on
provides that it is the exclusive right of the author to do or authorize the doing of the acts provided
thereunder. The important rights generally recognized by all types of works under the Indian statute
that a琀琀racted much judicial interpreta琀椀on includes reproduc琀椀on rights, right of distribu琀椀on, right of
transla琀椀on in other languages and right to communicate work to the public.
The copyright subsists in original literary, drama琀椀c, musical and ar琀椀s琀椀c works; cinematographs 昀椀lms
and sound recordings. The authors of copyright in the aforesaid works enjoy economic rights u/s 14
of the Act.
The rights are mainly, in respect of literary, drama琀椀c and musical, other than a computer program,
to reproduce the work in any material form including the storing of it in any medium by electronic
means, to issue copies of the work to the public, to perform the work in public or communica琀椀ng it
to the public, to make any cinematograph 昀椀lm or sound recording in respect of the work, and to
make any transla琀椀on or adapta琀椀on of the work.
(B) Moral Rights: Beside their economic aspects authors’ rights also grant authors moral rights,
including the right to be named as the author and the right to protect their work from being used in
a detrimental way or context. These rights are personal and cannot be traded. They allow individuals
to exercise control over their work. It enables authors to maintain ethical standards which de昀椀ne
and guarantee quality and authen琀椀city of the works produced.
Sec琀椀on 57 of the Act de昀椀nes the two basic “moral rights” of an author. These are:
i. The right of paternity: The right of paternity refers to the right of an author to claim
authorship of work and a right to prevent all others from claiming authorship of his work.
ii. Right of integrity (the right to protect his honour and reputa琀椀on): The right of integrity
empowers the author to prevent distor琀椀on, mu琀椀la琀椀on or other altera琀椀ons of his work, or
any other ac琀椀on in rela琀椀on to said work, which would be prejudicial to his honour or
reputa琀椀on.
iii. A general right (not to have a work falsely a琀琀ributed to him)
Though ini琀椀ally intended to protect only literary works, the concept of moral rights was later
extended to ar琀椀s琀椀c, musical, drama琀椀c and cinematograph 昀椀lms as well.
Can moral rights be transferred or waived?
No, moral rights cannot be transferred but can the author relinquish his/her rights in the work under
Sec琀椀on 21 of the Copyright Act? Since the Statute is silent and very few cases dealing with this, this
ques琀椀on is debatable. It is not legally possible to waive moral rights nor it is possible to include a
clause in the agreement sta琀椀ng that the publisher will not sue or take any ac琀椀on against the author
(as it will be hit by certain sec琀椀ons of the Indian Contract Act). The best bet would be to dra昀琀 an
agreement with a decent severability clause.
Moral rights apply to:
1. Literary works such as most wri琀琀en material and including computer programs.
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2. Ar琀椀s琀椀c works such as photographs, sketches, plans, maps, pain琀椀ngs, three-dimensional works
from po琀琀ery to statuary and buildings, cra昀琀work and murals
3. Musical works
4. Drama琀椀c works such as plays and screenplays
5. Cinematograph 昀椀lms both feature 昀椀lms and documentaries, as well as television programs,
commercials, and music videos.
Amarnath Sehgal vs. Union of Indian & others the court provided a remedy for infringement of his
special rights or moral rights. It was held by the court, in this case, that copyright is a bundle of
rights, which the author can exploit, independently for economic bene昀椀t in exercising these rights. A
copyright owner may exploit his work himself or license others to exploit any one or more of the
rights for a considera琀椀on, which may be in the form of royalty or a lump sum Payment, apart from
these economic rights the author of a work, has certain moral rights as well.
14. Owner of copyright and di昀昀erent modes of transfer of copyright with reference to
assignments.
Answer: Ownership of Copyright in India
The provisions of acquiring copyright ownership are de昀椀ned under Sec琀椀on 17 of the Act. According
to which, the 昀椀rst owner of the copyright is de昀椀ned as under:
Subject to the provisions of this Act, the author of a work shall be the owner of the copyright
therein. Sec琀椀on 17 statutorily recognizes the author of the work to be the 昀椀rst owner of the
copyright.
Section 17 in the Copyright Act, 1957
First owner of copyright: - Subject to the provisions of this Act, the author of a work shall be the 昀椀rst
owner of the copyright therein: Provided that—
(a) in the case of a literary, drama琀椀c or ar琀椀s琀椀c work made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical under a contract of
service or appren琀椀ceship, for the purpose of publica琀椀on in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the 昀椀rst
owner of the copyright in the work in so far as the copyright relates to the publica琀椀on of the work in
any newspaper, magazine or similar periodical, or to the reproduc琀椀on of the work for the purpose of
its being so published, but in all other respects the author shall be the 昀椀rst owner of the copyright in
the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a pain琀椀ng or portrait
drawn, or an engraving or a cinematograph 昀椀lm made, for valuable considera琀椀on at the instance of
any person, such person shall, in the absence of any agreement to the contrary, be the 昀椀rst owner of
the copyright therein;
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(c) in the case of a work made in the course of the author's employment under a contract of service
or appren琀椀ceship, to which clause (a) or clause (b) does not apply, the employer shall, in the
absence of any agreement to the contrary, be the 昀椀rst owner of the copyright therein;
(cc) in the case of any address or speech delivered in public, the person who has delivered such
address or speech or if such person has delivered such address or speech on behalf of any other
person, such other person shall be the 昀椀rst owner of the copyright therein notwithstanding that the
person who delivers such address or speech, or, as the case may be, the person on whose behalf
such address or speech is delivered, is employed by any other person who arranges such address or
speech or on whose behalf or premises such address or speech is delivered;]
(d) in the case of Government work, Government shall, in the absence of any agreement to the
contrary, be the 昀椀rst owner of the copyright therein;
(dd) in the case of a work made or 昀椀rst published by or under the direc琀椀on or control of any public
undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the
昀椀rst owner of the copyright therein;
Transfer of Copyright
One of the important rights of the copyright owner is the right to transfer his rights u/s 14 of the
copyright Act either wholly or par琀椀ally by assignment or license, even exclusive license. In the case
of tangible property by assignment of his property, he loses his rights over it but in the case of IP
even a昀琀er its assignment the owner can s琀椀ll enjoy the property depending upon the rights assigned.
This major di昀昀erence is due to the nature of intellectual property from other property.
Copyright Licensing Agreement
A Copyright Licensing Agreement is a contract under which a copyright owner allows another
individual or organiza琀椀on to use their copyrighted material in various ways such as:
 To re-print
 To distribute
 To use it for a speci昀椀c amount of 琀椀me
In other words, a Copyright Licensing agreement outlines the details of how, where and where a
copyrighted work may be used.
Types of Copyright Licensing Agreement
1. Voluntary License
Licensed copyright is e昀昀ec琀椀ve when the work of the individual comes into existence. If an individual
to whom a license rela琀椀ng to copyright in any future work dies before the work comes into
existence, then his/her legal representa琀椀on shall be en琀椀tled to the bene昀椀t of the license.
The key points required in a license agreement are:
 Dura琀椀on of license
 The condi琀椀on rela琀椀ng to revision, extension/termina琀椀on of the license
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 Iden琀椀昀椀ca琀椀on of work and licensed rights
Any disputes related to the licensing will be catered and solved by the Copyright Board.
2. Compulsory licensing
This licensing will be granted, if a copyright owner of any Indian work has published or performed in
public has:
 Refused republica琀椀on of work

 Refused to allow communica琀椀on of work to the public by broadcast or sound recording
 Refused to allow the performance of work in public and in case the work is not made public
Assignment of Copyright (Sec琀椀on 18)
The owner of the copyright of a work has the right to assign his copyright to any other person. The
e昀昀ect of the assignment is that the assignee becomes en琀椀tled to all the rights related to the
copyright to the assigned work. However, mere grant of the right to publish and sell the copyrighted
work amounts to publishing right and not assignment of copyright.
Where the assignee of copyright becomes en琀椀tled to any right comprised in the copyright, he shall
be treated as the owner of the copyright in respect of those rights. The assignor shall also be treated
as the owner of copyright with respect to unassigned rights. The legal representa琀椀ves of the
assignee shall be en琀椀tled to the bene昀椀ts of assignment if the assignee dies before the work comes
into existence.
Mode of assignment:
Sec琀椀on 19 of the Act lays down the requirements to assign copyright. They are as follows:
1. Unless the assignment is in wri琀椀ng and is signed by the assignor, the agreement will not be
valid;
2. The rights assigned along with dura琀椀on and territorial extent must be established;
3. The amount of royalty or any other considera琀椀on payable must be speci昀椀ed;
4. It is to be noted that if the assignee fails to exercise the rights assigned to him within one
year of the date of assignment, then such assignment shall be deemed to have lapsed
unless there is some provision to the contrary in the agreement;
5. If the period of assignment is not men琀椀oned, then it shall be for 5 years;
6. Similarly, if the territorial extent is not men琀椀oned, it shall be presumed to extend within
India;
Amendment of 2012 to Sec琀椀on 19:
Three clauses have been added with respect to assignment to Sec琀椀on 19 which says that royalty has
to be paid to the authors whose work has been exploited in a cinematographic 昀椀lm other than by
way of exhibi琀椀on of the 昀椀lm in a cinema hall. This simply means that the authors are en琀椀tled to the
subsequent royal琀椀es which may arise in the course of further exploita琀椀on of the 昀椀lm which includes
their work. For example, they will also be en琀椀tled to a royalty for satellite right, home video, internet
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right etc. This again strengthens the posi琀椀on of the authors of the work are the actual owners of
anything apart from their work in the cinematographic 昀椀lm. The second clause that has been added
is for sound recording and is the same as above.
In Saregama India Ltd v. Suresh Jindal, it was held that the owner of the copyright in a future work
may assign the copyright to any person either wholly or par琀椀ally for the whole of the copyright or
any part thereof and once the assignment is made the assignee for the purpose of this Act is treated
as the owner of the copyright.
Disputes with Respect to Assignment of Copyright (Sec琀椀on 19a)
As per sec琀椀on 19(a), the Appellate Board may on the receipt of a complaint from the assignor and on
holding such inquiry as it may deem necessary, revoke such assignment if the assignee fails to make
su昀케cient exercise of the rights assigned to him, and such failure is not a琀琀ributable to any act or
omission of the assignor.
In case of a dispute with respect to the assignment of copyright, the Appellate Board may pass a
suitable order on receiving a complaint from the aggrieved party and a昀琀er holding such inquiry as it
considers necessary including an order for the recovery of any royalty payable.
Assignment by Opera琀椀on of Law (Sec琀椀on 20)
When the owner of copyright dies the copyright will pass on to his representa琀椀ve as part of the
estate, provided that no will has been executed. Sec琀椀on 20 provides that if a person is en琀椀tled to
copyright under bequest and such work has not been published before the death of the testator
unless a contrary inten琀椀on is shown under testators will or any codicil thereto, such person shall be
considered as having copyright in the work so far as testator was the owner of copyright
immediately before his death.
Di昀昀erence between Assignment and License
Assignment of copyright and copyright license is two forms of contract involved in the exploita琀椀on of
copyright work by a third party. Each has its own dis琀椀nct characteris琀椀cs. A license is an authoriza琀椀on
of an act without which authoriza琀椀on would be an infringement. Licensing usually involves licensing
of some of the rights and not the whole. Licenses can be exclusive or non-exclusive. An assignment
involves the disposal of the copyright: the author (assigner) assigns the copyright to another person
(assignee) or transfer of ownership of the copyright. In the case of license only speci昀椀ed interest in IP
is transferred not the ownership is transferred to the licensee. A license normally does not confer
any right to the licensee against licensor or third party but the exclusive licensee has substan琀椀al
rights against the licensor, even to sue the licensor. And by Sec琀椀on 30 if the licensee in the case of
future work dies before the work comes into existence his legal representa琀椀ves shall be en琀椀tled to
such works, in the absence of any provision to the contrary.
15. Dis琀椀nguish infringement of trademark with passing o昀昀 with suitable case laws.
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Answer: A Trademark is a legally protected abstract, word, symbol, colour, mark, slogan or a
combina琀椀on of these associated with a company or a par琀椀cular product that di昀昀eren琀椀ates it from
the others available in the market. Its e昀昀ect is the crea琀椀on of a right with respect to the goodwill
widespread in the market. As per The Trademark Act, 1999, Sec琀椀on 2 (1)(zb) “trademark means a
mark capable of being represented graphically and which is capable of dis琀椀nguishing the goods or
services of one person from those of others and may include the shape of goods, their packaging and
combina琀椀on of colors or any such combina琀椀ons.
A trademark thus, forms an essen琀椀al part of the business for the purpose of marke琀椀ng, expanding
and maintaining the reputa琀椀on. A consumer is also bene昀椀ted from it since he has a clear
iden琀椀昀椀ca琀椀on of a par琀椀cular brand, product, company or service. According to the Act, a valid
registra琀椀on of a trademark shall provide the registered proprietor exclusive rights to use the
Trademark and to obtain relief if there happens an infringement of the trademark.
Sec琀椀on 27 of The Trademark Act 1999, provides a common law remedy of a trademark user to take
ac琀椀on against any person for passing o昀昀 the goods or services as the goods or services of another
person. In a landmark case, Apex Court observed that “passing o昀昀 ac琀椀on depends upon the principle
that nobody has a right to represent his goods as the goods of somebody. In other words, a man is
not to sell his goods or services under the pretence that they are those of another person.” Thus, an
unregistered proprietor of a trademark can also oppose an applica琀椀on for registra琀椀on. In an ac琀椀on
of passing o昀昀, prior use has to be established to secure an injunc琀椀on and other reliefs.
Sec琀椀on 29 of The Trademark Act 1999 has provisions of trademark infringement. A trademark is
infringed in the following circumstances:
1. When a person who is not the registered proprietor uses a mark, which is iden琀椀cal or decep琀椀vely
similar to a registered mark.
2. When the trademark being used is likely to cause confusion in public.
3. When a mark being used is iden琀椀cal or similar to the registered mark having a reputa琀椀on in India.
4. When the mark being used takes unfair advantage of a registered mark and is detrimental to the
dis琀椀nc琀椀ve character of the registered mark.
What is the di昀昀erence between Passing o昀昀 and Infringement?
Trademark Infringement and Passing O昀昀 are both related to the infrac琀椀on (a viola琀椀on or
infringement of a law or agreement) of rights of the trademark user/owner; however, certain
di昀昀erences between the two are noted as below:
1. Trademark Infringement is a statutory remedy whereas Passing O昀昀 is a common law remedy.
2. For an ac琀椀on of Trademark Infringement, registra琀椀on of the trademark is essen琀椀al whereas

for Passing O昀昀 registra琀椀on is irrelevant. For passing o昀昀, the following need to be established:
a. Goodwill
b. Decep琀椀vely similar nature of the mark in ques琀椀on
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c. Losses/ damages incurred due to passing o昀昀 by the other party
3. Trademark Infringement protects the exclusive rights of the registered owner whereas the Passing
O昀昀 protects limited interests.
4. For Trademark Infringement prosecu琀椀on under criminal remedies is fairly easy whereas for
Passing O昀昀, it is rela琀椀vely harder.
5. For Trademark Infringement a suit can be ins琀椀tuted under Sec琀椀on 134 of the Trade Marks Act
1999 whereas for Passing O昀昀 the remedy has to be sought under Sec琀椀on 20 of the Civil Procedure
Code 1908. Rules of jurisdic琀椀on also apply as per the relevant sec琀椀ons.
Trade Dress is the complete packaging of a product that is visually appealing to the eyes of the
buyer. It is the combina琀椀on of di昀昀erent elements of the packaging of the goods that are used for its
promo琀椀on. Applying this law, the Delhi High Court on January 3, 2017, in the case of M/S Castrol
Limited & Anr. v. Iqbal Singh Chawla & Anr. decreed in favour of Castrol Limited and granted a
permanent injunc琀椀on restraining Iqbal Singh Chawla from using the mark ACTIV or ACTIVE.
Cases on Trademark Infringement
The onus to prove infringement on Plain琀椀昀昀
The Supreme Court in the case of Kaviraj Pandit Durga Du琀琀 case held that in an ac琀椀on for
infringement the onus would be on the Plain琀椀昀昀 to establish that the trademark used by the
defendant in the course of trade in the goods in respect of which his mark is registered, is
decep琀椀vely similar.
Test of decep琀椀on in trademark infringement cases
The Bombay High Court in the case of Thomas Bear And Sons (India) v. Prayag Narain held that in
judging the probability of decep琀椀on, the test is not whether the ignorant the thoughtless, or the
incau琀椀ous purchaser is likely to be misled, but we have to consider the average purchaser buying
with ordinary cau琀椀on.
Passing o昀昀 cases;
Lord Oliver in the case of Recki琀琀 & Colman Products Ltd. v. Borden Inc. enumerated three elements
for a successful passing o昀昀 ac琀椀on: (1) Goodwill owned by a trader, (2) Misrepresenta琀椀on and (3)
Damage to goodwill. Thus, the passing ac琀椀on is essen琀椀ally an ac琀椀on in deceit where the common
law rule is that no person is en琀椀tled to carry on his or her business on the pretext that the said
business is of that of another.
Tests in the case of passing o昀昀– The Supreme Court in the case of Cadila Healthcare Ltd. v. Cadila
Pharmaceu琀椀cal Ltd., laid down the test of passing o昀昀 and observed that a passing o昀昀 ac琀椀on
depends upon the principle that nobody has a right to represent his goods as the goods of somebody.
In other words, a man is not to sell his goods or services under the pretence that they are those of
another person.
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As per Lord Diplock in Erwen Warnink BV v. J.Townend & Sons, the modern tort of passing o昀昀 has
昀椀ve elements, namely
 a misrepresenta琀椀on
 made by a trader in the course of trade
 to prospec琀椀ve customers of his or ul琀椀mate consumers of goods or services supplied by him
 which is calculated to injure the business or goodwill of another trade (in the sense that
this is a reasonably foreseeable consequence), and
 which causes actual damage to a business or goodwill of the trader by whom the ac琀椀on is
brought or (in a quia 琀椀met ac琀椀on) will probably do so.
16. De昀椀ne Patent. Explain the rights and du琀椀es of the patentee.
Answer: A patent is an exclusive right granted by the Government to the inventor to exclude others
to use, make and sell an inven琀椀on in a speci昀椀c period of 琀椀me. A patent is also available for
improvement in their previous Inven琀椀on. The main mo琀琀o to enact patent law is to encourage
inventors to contribute more in their 昀椀eld by awarding them exclusive rights for their inven琀椀ons.
The word “patent” is referred from a La琀椀n term “patere” which means “to lay open,” i.e. to make
available for public inspec琀椀on. There are three basic tests for any inven琀椀on to be patentable:
 Firstly, the inven琀椀on must be novel, meaning thereby that the Inven琀椀on must not be in
existence.
 Secondly, the inven琀椀on must be non-obvious, i.e. the Inven琀椀on must be a signi昀椀cant
improvement to the previous one; mere change in technology will not give the right of the
patent to the inventor.
 Thirdly, the inven琀椀on must be useful in a bona昀椀de manner, meaning thereby that the
Inven琀椀on must not be solely used in any illegal work and is useful to the world in a bona昀椀de
manner.
An inven琀椀on considered as new if, on the date of 昀椀ling the applica琀椀on, any such inven琀椀on is not
known to the public in any form, i.e. oral, wri琀椀ng, or any other form. Anything shall not be termed as
inven琀椀ve if such a thing is already known to the public domain. The patent has a limited term of 20
years, which is counted from the date of 昀椀ling of the patent applica琀椀on.
Under the Indian patent law, a patent can be obtained only for an inven琀椀on which is new and useful.
The inven琀椀on must relate to the machine, ar琀椀cle or substance produced by a manufacturer, or the
process of manufacturing of an ar琀椀cle. A patent may also be obtained for innova琀椀on of an ar琀椀cle or
of a process of manufacturing.
Rights and obliga琀椀ons of the patentee
Rights of Patentee
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 Right to exploit patent: A patentee has the exclusive right to make use, exercise, sell or
distribute the patented ar琀椀cle or substance in India, or to use or exercise the method or
process if the patent is for a person. This right can be exercised either by the patentee
himself or by his agent or licensees. The patentee’s rights are exercisable only during the
term of the patent.
 Right to grant license: The patentee has the discre琀椀on to transfer rights or grant licenses or
enter into some other arrangement for a considera琀椀on. A license or an assignment must be
in wri琀椀ng and registered with the Controller of Patents, for it to be legi琀椀mate and valid. The
document assigning a patent is not admi琀琀ed as evidence of 琀椀tle of any person to a patent
unless registered and this is applicable to assignee not to the assignor.
 Right to Surrender: A patentee has the right to surrender his patent, but before accep琀椀ng
the o昀昀er of surrender, a no琀椀ce of surrender is given to persons whose name is entered in
the register as having an interest in the patent and their objec琀椀ons, if any, considered. The
applica琀椀on for surrender is also published in the O昀케cial Gaze琀琀e to enable interested
persons to oppose.
 Right to sue for infringement: The patentee has a right to ins琀椀tute proceedings for
infringement of the patent in a District Court having jurisdic琀椀on to try the suit.
Obliga琀椀ons of patentee
 Government use of patents: A patented inven琀椀on may be used or even acquired by the
Government, for its use only; it is to be understood that the Government may also restrict or
prohibit the usage of the patent under speci昀椀c circumstances. In case of a patent in respect
of any medicine or drug, it may be imported by the Government for its own use or for
distribu琀椀on in any dispensary, hospital or other medical ins琀椀tu琀椀on run by or on behalf of the
Government. The aforesaid use can be made without the consent of the patentee or
payment of any royal琀椀es. Apart from this, the Government may also sell the ar琀椀cle
manufactured by patented process on royal琀椀es or may also require a patent on paying
suitable compensa琀椀on.
 Compulsory licenses: If the patent is not worked sa琀椀sfactorily to meet the reasonable
requirements of the public, at a reasonable price, the Controller may grant compulsory
licenses to any applicant to work the patent. A compulsory license is a provision under the
Indian Patent Act which grants power to the Government to mandate a generic drug maker
to manufacture inexpensive medicine in the public interest even as a patent in the product is
valid. Compulsory licenses may also be obtained in respect of related patents where one
patent cannot be worked without using the related patent.
 Revoca琀椀on of patent: A patent may be revoked in cases where there has been no work or
unsa琀椀sfactory result to the demand of the public in respect of the patented inven琀椀on.
 Inven琀椀on for defence purposes: Such patents may be subject to certain secrecy provisions,
i.e. publica琀椀on of the Inven琀椀on may be restricted or prohibited by direc琀椀ons of Controller.
Upon con琀椀nuance of such order or prohibi琀椀on of publica琀椀on or communica琀椀on of patented
Inven琀椀on, the applica琀椀on is debarred for using it, and the Central Government might use it
on payment of royal琀椀es to the applicant.
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 Restored Patents: Once lapsed, a patent may be restored, provided that few limita琀椀ons are
imposed on the right of the patentee. When the infringement was made between the period
of the date of infringement and the date of the adver琀椀sement of the applica琀椀on for
reinstatement, the patent has no authority to take ac琀椀on for infringement.
17. What is an inven琀椀on? What is not an inven琀椀on as per sec琀椀on 3 of the patents act?
Answer. What Can Be Patented?
Sec琀椀ons 3 and 4 of the Indian Patents Act, 1970 speci昀椀cally state exclusions to what can be patented
in India. That brings us to the ques琀椀on; what can be patented in India?
At the outset, it has to be men琀椀oned that the answer to this is not set in stone. There isn't any
de昀椀ni琀椀ve list as to what can be patented. There are, however, certain criteria that are required to be
met in order to make an inven琀椀on patentable. The patentability of an inven琀椀on is determined by its
ability to meet the criteria.
Even before delving into the criteria, it is important to understand the inven琀椀on meaning and
patented meaning. According to Sec琀椀on 2(j) of the Indian Patents Act, 1970 an inven琀椀on means "a
new product or process involving an inven琀椀ve step and capable of industrial applica琀椀on.” such
inven琀椀on protected under the patent law refers to patented.
The following criteria determine what can be patented in India:
1. Patentable subject ma琀琀er:
The foremost considera琀椀on is to determine whether the inven琀椀on relates to a patentable subject-
ma琀琀er. Sec琀椀ons 3 and 4 of the Patents Act list out the non-patentable subject ma琀琀er. As long as the
inven琀椀on does not fall under any provision of Sec琀椀ons 3 or 4, it means it has patentable subject
ma琀琀er (subject to the sa琀椀sfac琀椀on of the other criteria).
2. Novelty:
Novelty is an important criterion in determining the patentability of an inven琀椀on. Novelty or new

inven琀椀on is de昀椀ned under Sec琀椀on 2(l) of the Patents Act as "any inven琀椀on or technology which has
not been an琀椀cipated by publica琀椀on in any document or used in the country or elsewhere in the
world before the date of 昀椀ling of a patent applica琀椀on with complete speci昀椀ca琀椀on, i.e., the subject
ma琀琀er has not fallen in the public domain or that it does not form part of the state of the art".
Simply put, the novelty requirement basically states that an inven琀椀on should never have been
published in the public domain. It must be new with no same or similar prior arts.
3. Inven琀椀ve step or Non-Obviousness:
Inven琀椀ve step is de昀椀ned under Sec琀椀on 2(ja) of the Patents Act as "a feature of an inven琀椀on that
involves technical advance as compared to the exis琀椀ng knowledge or having economic signi昀椀cance
or both and that makes the inven琀椀on not obvious to a person skilled in the art". This means that the
inven琀椀on must not be obvious to a person skilled in the same 昀椀eld as the inven琀椀on relates to. It
must be inven琀椀ve and not obvious to a person skilled in the same 昀椀eld.
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4. Capable of Industrial Applica琀椀on:
Industrial applicability is de昀椀ned under Sec琀椀on 2(ac) of the Patents Act as "the inven琀椀on is capable
of being made or used in an industry". This essen琀椀ally means that the inven琀椀on cannot exist in the
abstract. It must be capable of being applied in any industry, which means that the inven琀椀on must
have prac琀椀cal u琀椀lity in order to be patentable.
These are the statutory criterion for the patentability of an inven琀椀on. Apart from this, another
important criterion for ge琀�ng a patent is the disclosure of an enabling patent. An enabling patent
disclosure means a patent dra昀琀 speci昀椀ca琀椀on must disclose the inven琀椀on su昀케ciently, so as to enable
a person skilled in the same 昀椀eld as the inven琀椀on relates to, to carry out the inven琀椀on without
undue e昀昀ort. If the patent speci昀椀ca琀椀on does not disclose an enabling patent then a patent will most
de昀椀nitely not be granted.
The following are not considered as inven琀椀ons and are not patentable under Sec琀椀ons 3 and 4 of
the Patents Act 1970:
 an inven琀椀on which is frivolous or which claims anything obviously contrary to well-

established natural laws;
 an inven琀椀on whose primary or intended use or commercial exploita琀椀on is contrary to public

order or morality or which causes serious prejudice to human, animal or plant life, health or
the environment;
 the mere discovery of a scien琀椀昀椀c principle or the formula琀椀on of an abstract theory;
 the discovery of a living thing or a non-living substance occurring in nature;
 the mere discovery of a new form of a known substance which does not enhance the known
e昀케cacy of that substance, the mere discovery of a new property or new use for a known
substance or the mere use of a known process, machine or apparatus unless the known
process results in a new product or employs at least one new reactant (wherein salts, esters,
ethers, polymorphs, metabolites, pure form, par琀椀cle size, isomers, mixtures of isomers,
complexes, combina琀椀ons and other deriva琀椀ves of known substance will be considered to be
the same substance unless they di昀昀er signi昀椀cantly in proper琀椀es with regard to e昀케cacy);
 a substance obtained by a mere admixture resul琀椀ng only in the aggrega琀椀on of the

proper琀椀es of the components thereof or a process for producing such substance;
 the mere arrangement, rearrangement or duplica琀椀on of known devices which func琀椀on

independently of one another in a known way;
 a method of agriculture or hor琀椀culture;
 any process for the medicinal, surgical, cura琀椀ve, prophylac琀椀c, diagnos琀椀c, therapeu琀椀c or
other treatments of human beings, or any process for a similar treatment of animals to
render them free of disease or to increase their economic value or that of their products;
 plants and animals in whole or any part thereof other than microorganisms, including seeds,
varie琀椀es and species and essen琀椀ally biological processes for produc琀椀on or propaga琀椀on of
plants and animals;
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 a mathema琀椀cal or business method, a computer programme per se or algorithms;
 a literary, drama琀椀c, musical or ar琀椀s琀椀c work or any other aesthe琀椀c crea琀椀on, including
cinematographic works and television produc琀椀ons;
 a mere scheme, rule or method of performing a mental act or playing a game;
 a presenta琀椀on of informa琀椀on;
 the topography of integrated circuits;
 an inven琀椀on which, in e昀昀ect, is tradi琀椀onal knowledge or aggrega琀椀on or duplica琀椀on of

known proper琀椀es of a tradi琀椀onally known component or components; and
 Inven琀椀ons rela琀椀ng to atomic energy.
CASES
18. PROTECTION OF COMPUTER PROGRAMS {SECTION 13(1)(a) OF THE COPYRIGHT ACT, 1957}.
A. An IT 昀椀rm intends to protect the computer programme designed by one of its so昀琀ware
engineers. Advise the 昀椀rm as to the proper mode of protec琀椀on under the IPR regime of India.
(May-2014).
B. “A” computer programmer prepared a so昀琀ware programme. He wants to protect the same in
India. Advise him. (July-2012).
ISSUE:
1. Can a computer programme be protected under IPR? Yes
2. Under which IPR a computer programmed comes? Comes under copyright protec琀椀on.
RULE:
Sec琀椀on 14 of the Copyright Act, 1957 Meaning of copyright.-- For the purposes of this Act,
"copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the
doing of any of the following acts in respect of a work or any substan琀椀al part thereof, namely--
(a) in the case of a literary, drama琀椀c or musical work, not being a computer programme,-
(i) to reproduce the work in any material form including the storing of it in any medium by
electronic means;
(ii) to issue copies of the work to the public not being copies already in circula琀椀on;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph 昀椀lm or sound recording in respect of the work;
(v) to make any transla琀椀on of the work;
(vi) to make any adapta琀椀on of the work;
(vii) to do, in rela琀椀on to a transla琀椀on or an adapta琀椀on of the work, any of the acts speci昀椀ed in
rela琀椀on to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme:
(i) to do any of the acts speci昀椀ed in clause (a);
(ii) to sell or give on commercial rental or o昀昀er for sale or for commercial rental any copy of the
computer programmer.
Poonam Singh 45

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APPLICATION:
The so昀琀ware in its simplest sense can be understood as a set of instruc琀椀ons provided to the
computer in order to produce the desired result. The most common methods of so昀琀ware piracy are
so昀琀-li昀琀ing, hard disk loading and unauthorized ren琀椀ng. In addi琀椀on, the ease of duplica琀椀on and high
quality of pirated so昀琀ware pose a great threat to the so昀琀ware industry. Thus, so昀琀ware protec琀椀on by
way of intellectual property rights is necessary to ensure that the creator is adequately bene昀椀琀琀ed
and also to encourage crea琀椀vity and inven琀椀veness in the future.
In India, the so昀琀ware can be protected under the Copyright Act, 1957 or the Patents Act, 1970, and
a touch of ingenuity, too, is required to protect it correctly. It can be protected under the Patent Act
only if it has a technical e昀昀ect. Otherwise, it can be protected only under the Copyright Act, 1957.
Sec琀椀on 2(o) of the Copyright Act de昀椀nes "literary work" and includes computer programs, tables and
compila琀椀ons including computer databases. Thus, it is explicitly protected. The same remedies will
follow from the infringement of the copyrighted computer so昀琀ware which is allowed in case of any
other infringements.
CONCLUSION:
A computer programme can be registered under the Copyright Act, 1957. In the given case the IT
昀椀rm is the owner of the computer programme because the employee made this computer
programme in the course of his employment. The IT 昀椀rm can apply for the copyright of the
computer programme provided that the so昀琀ware quali昀椀ed for registra琀椀on under the Act.
Poonam Singh 46

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19. WHO IS THE OWNER OF THE FILM SONG/ACTION?

A. A poet was asked to write a song for a 昀椀lm and paid for it. The song went on to become a
bit hit. Who is the owner of copyright in the song? Decide (May-2016).
B. A cinema actor claimed copyright in his performance in a movie, and 昀椀led a suit against
the cinema producer seeking injunc琀椀on against the release of the cinema? Discuss with
reasons. (May-2015).
ISSUE:
Who is the owner of the song? The poet was duly paid for his work and the person who paid is the
昀椀rst owner of the song under the Copyright Act, 1957, Sec琀椀on 17.
RULE:
As per Sec琀椀on 17 of the Copyright Act, 1957 the 昀椀rst owner of copyright:- Subject to the provisions
of this Act, the author of a work shall be the 昀椀rst owner of the copyright therein: Provided that—
(a) in the case of a literary, drama琀椀c or ar琀椀s琀椀c work made by the author in the course of his
service or appren琀椀ceship, for the purpose of publica琀椀on in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the 昀椀rst
owner of the copyright in the work in so far as the copyright relates to the publica琀椀on of the work in
any newspaper, magazine or similar periodical, or to the reproduc琀椀on of the work for the purpose of
its being so published, but in all other respects the author shall be the 昀椀rst owner of the copyright in
the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a pain琀椀ng or portrait
drawn, or an engraving or a cinematograph 昀椀lm made, for valuable considera琀椀on at the instance of
any person, such person shall, in the absence of any agreement to the contrary, be the 昀椀rst owner of
the copyright therein;
(c) in the case of a work made in the course of the author's employment under a contract of
service or appren琀椀ceship, to which clause (a) or clause (b) does not apply, the employer shall, in
the absence of any agreement to the contrary, be the 昀椀rst owner of the copyright therein;
APPLICATION:
Who is the owner of a copyrighted work?
As a general rule, the author of a work is the 昀椀rst owner of the copyright in a work. For an original
literary, musical, drama琀椀c and ar琀椀s琀椀c work, it is the person who created or composed such work
and for a sound recording and cinematograph 昀椀lm, it is the producer of such a work. In case of a
photograph, it is the photographer. For computer-generated works, the author (ie, the 昀椀rst owner of
the copyright) is the person who causes the work to be created.
The excep琀椀ons to this rule are covered in sec琀椀on 17 of the Copyright Act, as summarised below:
In the case of literary, drama琀椀c or ar琀椀s琀椀c works made by the author in the course of his or her
service or appren琀椀ceship for the purpose of publica琀椀on in the newspaper, magazine or periodical,
then the proprietor of the publica琀椀on shall be the 昀椀rst owner of the work for the purposes of its
publica琀椀on in a newspaper, magazine or similar periodical. In all other respects, the author is the
昀椀rst owner.
In the case of a work that is a photograph, pain琀椀ng, portrait, engraving or cinematograph 昀椀lm that
has been created at the instance of any person for valuable considera琀椀on, then such person is the
昀椀rst owner of the copyright in the work. However, this does not a昀昀ect the rights of an author in any
original literary, drama琀椀c, musical or ar琀椀s琀椀c work that is incorporated in a cinematograph 昀椀lm.
In the case of Indian Heritage Society & Anr v Meher Malhotra & Anr [CS(OS)No. 2717 of 2011], the
Delhi High Court granted a permanent injunc琀椀on in favour of the plain琀椀昀昀 who was not the
Poonam Singh 47

lOMoARcPSD|28401756
photographer but was held to be the 昀椀rst owner of the copyright in the photographs. This was
because it was at the plain琀椀昀昀’s instance that the photographs were taken for a valuable
considera琀椀on paid to the photographer.
In the case of a work created by an author in the course of his or her employment under a contract
of service or appren琀椀ceship, then the employer is the 昀椀rst owner of the work. However, this does
not a昀昀ect the rights of an author in any original literary, drama琀椀c, musical or ar琀椀s琀椀c work that is
incorporated in a cinematograph 昀椀lm as has been clari昀椀ed by the 2012 amendments to the
Copyright Act.
CONCLUSION:
In the given case the person on whose behalf the poet has wri琀琀en the song becomes the 昀椀rst owner
and he has every right over the poet is having only moral rights over the song.
20. CAN ANYONE COPY A HISTORICAL MONUMENT?

A. A historical monument’s architecture was copied by a person to construct his house.
Discuss whether any intellectual property is violated thereby. (May-2017).
B. A person wants to construct a house with the design similar to Charminar. Can he do it?
Explain. (Aug-2013).
ISSUE:
RULE:
APPLICATION:
CONCLUSION:
21. INFRINGEMENT OF REGISTERED TRADEMARKS. — SECTION 29(4) OF THE TRADEMARKS ACT,

1999.
A. A garments manufacturer started using the trademark ‘Audi’ for his range of readymade
clothes. Audi car manufacturers objected to it. Decide (May-2017).
B. ‘Benz’ is the trademark used by a well-known carmaker. A garment manufacturer in India
used the same trademark for one of the undergarments. Can the car maker sue the Indian
garment manufacturer? If so, on what grounds? (May-2016).
C. A small trader in a rural area wants to use the trademark ‘TATA’ for his product. He has no
connec琀椀on whatsoever with the Tata company. Has he commi琀琀ed any viola琀椀on of the
law? Discuss (May-2015).
D. A Hyderabad Real Estate company applied to the trademarks registry for registra琀椀on of
‘Reliance Real Estate” as a trademark for its new construc琀椀on venture. Can it succeed?
Discuss (May-2014).
ISSUE:
Can anyone other than the owner of the registered trademark use the trademark? No, it amounts to
infringement of trademark and punishable.
RULE:
Sec琀椀on 29(4) of the Trade Marks ACT, 1999, A registered trademark is infringed by a person who,
not being a registered proprietor or a person using by way of permi琀琀ed use, uses in the course of
trade, a mark which—
(a) is iden琀椀cal with or similar to the registered trademark; and
(b) is used in rela琀椀on to goods or services which are not similar to those for which the trademark is
registered; and
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(c) the registered trademark has a reputa琀椀on in India and the use of the mark without due cause
takes unfair advantage of or is detrimental to, the dis琀椀nc琀椀ve character or repute of the registered
trademark.
APPLICATION:
Tata Sons Ltd. & Anr. Vs Amit Mahna & Ors. The present suit has been ins琀椀tuted by the plain琀椀昀昀s
against the defendants seeking permanent injunc琀椀on restraining infringement of trademarks TATA
by the defendants. The plain琀椀昀昀 submits that in September 2004, it came across pressure cookers in
the market bearing the trademark TATA. The impugned products contained the trade name „TATA
GOLD‟, which is represented in a manner wherein the mark TATA is portrayed in a bold and
prominent manner, while the mark GOLD is wri琀琀en in small print. Upon further inves琀椀ga琀椀on, it
appeared that these goods are being manufactured and/or sold by the defendant no. 1, Mr Amit
Mahna.
This suit has been 昀椀led by Tata Sons Ltd., a company incorporated under the Indian Companies Act,
1913. The plain琀椀昀昀 has contended that it was established in the year 1917 and is the principal
investment holding company of the Tata Group, which is India’s oldest, largest and best-known
conglomerate with a turnover of USD 9 Billion. The name TATA is stated to be have been derived
from the surname of its founder Mr Jamsetji Nusserwanji Tata. It is also stated that the name TATA is
being used by the plain琀椀昀昀s since its incep琀椀on in the year 1917 and it is claimed that on account of its
highly descrip琀椀ve nature and pioneering ac琀椀vi琀椀es of the founder, the name TATA has consistently
been associated with and exclusively denotes the conglomera琀椀on of companies forming the Tata
group, which is known for a high quality of products manufactured and/or services rendered by it
under the trademark/name TATA.
The suit of the plain琀椀昀昀 is accordingly decreed and an order of permanent injunc琀椀on restraining the
defendants from manufacturing, selling, adver琀椀sing pressure cookers or goods of any descrip琀椀on
bearing a trademark that is iden琀椀cal or similar to the plain琀椀昀昀’s trademark TATA. The defendants are
also directed to destroy the goods and packaging material or any other printed material bearing the
trademark TATA within a period of four weeks from today.
CONCLUSION:
The given case is similar to the above discussed TATA’s case hence the using of ‘Audi’ trademark by a
garment manufacturer is prohibited, the owner of the ‘Audi’ trademark can object to it and can
ini琀椀ate legal proceedings against the garment manufacture for infringement of the trademark.
22. PATENTS OF IMPROVEMENT TO A MEDICINE - VALIDITY 20 YEARS.

A. A pharmacist invented a medicine for cold and cough in 1999 and got it patented in 2002.
In 2008, he made a remarkable improvement in that medicine to treat not only cold and
cough but also fever. How can he protect such improvement? Advice. (May-2016).
B. A patentee made further improvements to one of the patented products. How can he
protect such improvements? (May-2014).
ISSUE:
Can an improvement to a patent allowed? Yes, improvement to a patent is patentable.
RULE:
The Patents Act, 1970, Sec琀椀on 54, Patents of addi琀椀on. -
(1) Subject to the provisions contained in this sec琀椀on, where an applica琀椀on is made for a patent in
respect of any improvement in or modi昀椀ca琀椀on of an inven琀椀on described or disclosed in the
complete speci昀椀ca琀椀on 昀椀led therefor (in this Act referred to as the "main inven琀椀on") and the
applicant also applies or has applied for a patent for that inven琀椀on or is the patentee in respect
thereof, the Controller may, if the applicant so requests grant the patent for the improvement or
modi昀椀ca琀椀on as a patent of addi琀椀on.
Sec琀椀on 55, Term of patents of addi琀椀on. -
Poonam Singh 49

lOMoARcPSD|28401756
(1) A patent of addi琀椀on shall be granted for a term equal to that of the patent for the main
inven琀椀on,
APPLICATION:
A昀琀er arriving at an inven琀椀on and obtaining a patent on it, there remains a scope of improvement or
modi昀椀ca琀椀on of such inven琀椀on. The improvements or modi昀椀ca琀椀ons may take place as an ordinary
process of improving an inven琀椀on, or as a result of feedback received from the market or the
industry. In such a scenario, where the inven琀椀on is already protected by a patent, the improvement
or modi昀椀ca琀椀on over the original patented product or process may be protected by a "Patent of
Addi琀椀on" in India. It is here when the Patent of Addi琀椀on comes into the picture for protec琀椀ng the
novel, industrial applicability and non-inven琀椀ve improvements or modi昀椀ca琀椀ons to an already 昀椀led or
granted the patent applica琀椀on.
An innova琀椀on which is built upon exis琀椀ng knowledge with the modern technological changes is
higher in competence with the exis琀椀ng products. Patent of Addi琀椀on can be converted into a
standard patent if the improvement or modi昀椀ca琀椀on is inven琀椀ve in its own right. This provision of
Patent of Addi琀椀on in India, New Zealand and Australia is in conformity with that of con琀椀nuous-in-
part applica琀椀on under the American Patent System.
A Patent of Addi琀椀on enables the applicant to apply for an improvement or modi昀椀ca琀椀ons made on
the inven琀椀on disclosed in the complete speci昀椀ca琀椀on1. The improvement must be something more
than a mere workshop improvement. The term for a Patent of Addi琀椀on shall not exceed the term of
a regular patent, and shall not be granted prior to the date of grant of a patent for the main
inven琀椀on. A Patent of Addi琀椀on cannot be ques琀椀oned on the ground that the inven琀椀on ought to
have been the subject of an independent patent.
CONCLUSION:
The Pharmacist can apply for addi琀椀on to his previous patent under Sec琀椀on 54 and will be granted a
patent of addi琀椀on for a term of 20 years.
23. AN INVENTION OF A NEW AGRICULTURAL PROCESS FOR MORE YIELDS, CAN HE GET PATENT
FOR THE INVENTION?
A. ‘A’ has invented a process of making agricultural land more fer琀椀le and capable of yield
higher produce. He wants to obtain patent for his inven琀椀on. Will he succeed? (July-2019).
B. Professor X has developed a process to increase the economic value of jute. He wants to
patent the same in India. Whether his inven琀椀on can be patented in India? (Aug-2018).
ISSUE:
Can a process for improving agricultural yield be patented? No.
RULE:
Sec琀椀on 3 of THE PATENTS ACT, 1970
(h) a method of agriculture or hor琀椀culture;
(i) any process for the medicinal, surgical, cura琀椀ve, prophylac琀椀c diagnos琀椀c, therapeu琀椀c or other
treatment of human beings or any process for a similar treatment of animals to render them free of
disease or to increase their economic value or that of their products.
(j) plants and animals in whole or any part thereof other than micro-organisms but including seeds,
varie琀椀es and species and essen琀椀ally biological processes for produc琀椀on or propaga琀椀on of plants and
animals.
APPLICATION:
CONCLUSION:
Poonam Singh 50

lOMoARcPSD|28401756
For case laws part
In Godrej Soaps (P) Ltd v Dora Cosme琀椀cs Co, the Delhi High Court held that where the cartoon was
designed for valuable considera琀椀on by a person in the course of his employment for and on behalf
of the plain琀椀昀昀 and the defendant had led no evidence in his favour, the plain琀椀昀昀 is the assignee
and the legal owner of the copyright in the carton including the logo.
Poonam Singh 51

lOMoARcPSD|28401756
Land Laws – 4th Semester
LLB 4 th SEMESTER
LAND LAWS

lOMoARcPSD|28401756
LAND LAWS STUDY MATERIAL
SL IMPORTANT SHORT QUESTIONS RE

NO P
1 DOCTRINE OF ESCHEAT 4
2 DEFINE THE TERMS LAND AND OWNERSHIP AND TYPES OF OWNERSHIP (LIMITED AND 4
ABSOLUTE)
3 ZAMINDARIS (ZAMINDARI SETTLEMENT) 3
4 RYOTWARY SETTLEMENT (SYSTEM) 4
5 IX SCHEDULE OF THE CONSTITUTION 4
6 DEFINE URBAN LAND AND WHAT IS URBAN LAND CEILING 4
7 LAND GRABBING ACT 3
8 PUBLIC PURPOSE 4
9 LAND REFORMS 4
10 EXPLAIN DOCTRINE OF EMINENT DOMAIN AND BONA VACANTIA 3
11 PROCEDURE FOR ACQUIRING LAND UNDER THE LAND ACQUISITION ACT, 2013 6
12 SALIENT FEATURES OF THE LAND REFORMS (CEILING ON AGRICULTURAL LAND 4
HOLDINGS) ACT, 1973
13 VARIOUS PROVISIONS OF THE A.P. ASSIGNED LANDS (PROHIBITION OF TRANSFER) 3
ACT, 1977
14 EXPLAIN THE EFFECTIVENESS OF A.P. LAND GRABBING (PROHIBITION) ACT, 1982 3
15 CULTIVATOR OF LAND AND HIS RIGHTS AND WHEN CAN TERMINATION OF TENANCY 3
BE AFFECTED
16 PARAMETERS FOR DETERMINATION OF PAYMENT OF COMPENSATION FOR THE LAND 3
ACQUISITION
IMPORTANT CASES
17 CONSTITUTIONALITY OF THE LAND REFORMS LEGISLATION 3

18 PROCEDURE FOR ACQUIRING LAND UNDER THE LAND ACQUISITION ACT, 2013 (FOR 4
PUBLIC PURPOSE)
19 ACQUIRING PRIVATE LAND FOR A FACTORY OF A MNC/SEZ 3
20 MORTGAGE OF ASSIGNED LAND/SELLING OF ASSIGNED LAND 4
21 LAND GRABBING ACT 4
22 A TRIBAL SOLD HIS LAND TO A NON-TRIBAL 4

lOMoARcPSD|28401756
PAPER-IV: LAND LAWS SYLLABUS
Unit-I: Classi昀椀ca琀椀on of lands — Ownership of Land — Absolute and limited ownership (tenancy,
lease etc.) — Doctrine of Eminent Domain — Doctrine of Escheat - Doctrine of Bona Vacan琀椀a —
Maintenance of land records and issue of Pa琀琀as and Title Deeds etc.
Unit-II: Law Reforms before and a昀琀er independence — Zamindari Se琀琀lement — Ryotwari
Se琀琀lement — Mahalwari System — Intermediaries — Cons琀椀tu琀椀onal Provisions — Aboli琀椀on of
Zamindaries, Jagirs and Inams -Tenancy Laws — Conferment of ownership on tenants/ryots.
Unit-III: Laws rela琀椀ng to acquisi琀椀on of property — The Right to Fair Compensa琀椀on and
Transparency in Land Acquisi琀椀on, Rehabilita琀椀on and Rese琀琀lement Act, 2013- salient Features-
Procedure for Land Acquisi琀椀on: Issue of no琀椀昀椀ca琀椀on, Social impact assessment -Consent of
landowners- Award enquiry, Payment of compensa琀椀on & Reference to civil courts etc.
Unit-IV: Laws rela琀椀ng to Ceiling on Land Holdings — A.P. Land Reforms (Ceiling on Agricultural
Holdings) Act, 1973 — E昀昀ect of inclusion in the IX Schedule of the Cons琀椀tu琀椀on — Interpreta琀椀on
of Direc琀椀ve Principles of State Policy.
Unit-V: Laws rela琀椀ng to aliena琀椀on — Scheduled Areas Land Transfer Regula琀椀on — Assigned
Lands (Prohibi琀椀on of Transfers) Act, - Resump琀椀on of Lands to the Transferor/Government - Land
Grabbing (Prohibi琀椀on) Act – ROR proceedings and Sada Bainama – Muta琀椀on of 琀椀tles-Role of
Revenue Courts.
Suggested Readings: 1. P. Rama Reddi and P. Srinivasa Reddy: Land Reform Laws in A.P., Asia
Law House, Hyderabad. 2. P.S. Narayana: Manual of Revenue Laws in A.P., Gogia Law Agency,
Hyderabad. 3. Land Grabbing Laws in A.P., Asia Law House, Hyderabad. 4. G.B. Reddy: Land Laws
in A.P., Gogia Law Agency, Hyderabad 5. N.Maheshwara Swamy Lectures on Land Laws, Asia Law
House, Hyderabad.

lOMoARcPSD|28401756
SHORT ANSWERS
1. DOCTRINE OF ESCHEAT.
Answer: As per Byrne Dic琀椀onary, it is provided that “where person possessed of personal property,
intestate and leaving no next-of-kin, the Crown becomes en琀椀tled to all such property.
Black’s Law Dic琀椀onary de昀椀nes escheat as “the preferable right of the state to an estate le昀琀 vacant, and
without there being any one in existence able to make a claim thereto.” Although dense, the de昀椀ni琀椀on,
once parsed, describes a rela琀椀vely simple concept: under the laws of nearly every state, a business that is
holding property on behalf of a third-party (called the “owner”) is obligated to report and turn over the
unclaimed property to the state, a昀琀er passage of a prescribed “dormancy” period.
Escheat in Hindu Law
The law of escheat of lands for want of heirs was witnessed in old Hindu society. It was called then as
‘Gayari’.
In Biswanath Khan and others vs. Prafulla Kumar Khan, Jus琀椀ce A.M. Bha琀琀acharjee observed that:
“not that such a doctrine (escheat) was unknown in India for our ancient law-giver Manu, for example,
declared more than 2000 years ago thus in Manusawhita (Chapter IX, Verse 189) Aharajyam
Brahmanadravyam Rajna Nityami琀椀 Sthi琀椀, Itareshantu Varnanam Sarbabhave Harenripa. This, while
nega琀椀ving the king’s right to Brahminical property even of failure of all heirs, a昀케rmed the king's 琀椀tle to all
the proper琀椀es belonging to person of other classes dying leaving without any heir”.
Sec琀椀on 2(iv) of the Telangana Escheats and Bona Vacan琀椀a Act, 1974, de昀椀nes the term “escheat” to mean
any property the owner of which dies intestate and without leaving legal heirs. That means, for
cons琀椀tu琀椀ng escheat two condi琀椀ons must prevail, namely,
A. The property owner must die intestate and
B. He must not have any legal heirs.
In such cases, the State becomes the owner of such property.
Ar琀椀cle 296, Property accruing by escheat or lapse or as bona vacan琀椀a: Subject as hereina昀琀er provided
any property in the territory of India which, would have accrued to His Majesty or, as the case may be, to
the Ruler of an Indian State by escheat or lapse, or as bona vacan琀椀a for want of a righ琀昀ul owner, shall, if it
is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.
Provided that any property which at the date when it would have so accrued to his Majesty or the Ruler
of an Indian State was in the possession or under the control of the Government of India or the
Government of a State shall, according to as the purposes for which it was then used or held were
purposes of the Union or a State, vest in the Union or in that State.
2. DEFINE THE TERMS LAND AND OWNERSHIP AND TYPES OF OWNERSHIP (LIMITED AND ABSOLUTE).
Answer: Land Meaning:
The land is immovable property, real or immovable property consists of:
a. Land,
b. That which is 昀椀xed to land,
c. That which is incidental or appurtenant (belonging; per琀椀nent. E.g. "proper琀椀es appurtenant to the
main building") to land,
d. That what is immovable by law.
In economics, land does not mean soil. According to Marshall, ‘Land’ means ‘the materials and forces
which nature gives freely for man’s aid in land and water, in air and light and heat’. As a factor of
produc琀椀on, land represents the natural resources which are scarce and useful in many ways and yield
income.
Definitions of ‘Land’:
As per Sec琀椀on 3(a) of the Land Acquisi琀椀on Act, 1894 “The expression ‘Land’ includes bene昀椀ts to arise
out of land, and things a琀琀ached to the earth or permanently fastened to anything a琀琀ached to the earth”.

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According to Sec琀椀on 3 (iv) of the Land Revenue Code, 1879, “The term ‘Land’ includes bene昀椀ts to arise
out of land, and things a琀琀ached to the earth, or permanently fastened to anything a琀琀ached to the earth,
and also shares in, or charges on, the revenue or rent of villages, or other de昀椀ned por琀椀ons of territory”.
Collins Dic琀椀onary of Law de昀椀nes land as “Land not only the physical surface of the land but everything
growing on or underneath that surface, anything permanently a昀케xed to the surface (such as a building)
and the airspace above that surface. It includes not only the soil or earth but always any water, a pond, for
example, being regarded as land covered by water. Land may be divisible both horizontally and ver琀椀cally;
thus, ownership of the surface may be vested in one person while ownership of mines and minerals are
vested in another. It is perfectly possible to have ‘昀氀ying freeholds’, where ownership of di昀昀erent storeys
of the same building is vested in di昀昀erent persons. Scotland has a developed law of the tenement which
has been given an even more coherent statutory basis in the twenty-昀椀rst century”.
Definition of Ownership
Aus琀椀n de昀椀nes ownership as “a right availing against the world inde昀椀nite in point of the user,
unrestricted in point of disposi琀椀on and unlimited in point of dura琀椀on over a determinate thing”.
Holland de昀椀nes ownership as “a plenary control over the object”. According to him, an owner has
three rights on the object owned:
1. Possession,
2. Enjoyment,
3. Disposi琀椀on.
According to Salmond, “ownership in most comprehensive signi昀椀ca琀椀on denotes the rela琀椀on between a
person and any rights that are vested in him. That which a man owns in this sense is in all cases a right.
Ownership, in this wide sense, extends to all clauses of rights, whether proprietary or personal in rem or
in personam, in re-propria, or in re-alieva (encumbrance); and it applies not only to rights in the strict
sense, but to liber琀椀es, powers and immuni琀椀es”.
Pollock says, “Ownership may be described as the en琀椀ty of the powers of use and disposal allowed by
law”.
In short, ownership, in sensu stricto (strictly speaking), is a right of an individual or a body corporate or
unincorporated, to possess a thing, to exclusively use it, to alienate or even to dissolve it in a lawful
manner – we may de昀椀ne ownership as a right to the enjoyment of the uses of the subject ma琀琀er (corpus)
with a right to alienate or deal with the property. Ownership is a proprietary right.
Kinds of Ownership
Ownership refers to the legal right of an individual, group, corpora琀椀on or government to the possession of
a thing. The subject of ownership is of two types - material and immaterial things. Material ownership is
that which is tangible like property, land, car, book, etc. Immaterial ownership is that which is intangible
like patent, copyright, trademark, etc. Now we will discuss the kinds of ownership.
1. Absolute ownership: Ownership in land can be either an absolute or limited ownership. When in a
person all the rights of ownership i.e.
A. Jus utendi – the right to the use of a thing,
B. Jus porsidendi – the right to possess a thing,
C. Jus abutendi – the right to enjoy a thing,
D. Jus disponendi vel transferendi – the right dispose a thing or to transfer it as by sale, gi昀琀, etc.
(right of aliena琀椀on),
E. Jus sibi habendi – the right to hold a thing for oneself, and
F. Jus alteri nan habendi or jus prohibendi – the right to exclude others from its use.
Absolute ownership is a free transferable and inheritable property a person can have as his actual
right.

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An absolute owner is the one in who have vested all the rights over a thing to the exclusion of all. When
all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a person without any
restric琀椀on, the ownership is absolute.
2. Limited ownership: Limited ownership is the ownership that is not absolute or perfect. Where the
owner enjoys the right to use and enjoy the property for a limited period of 琀椀me as long as some
other person is alive. When there is a limita琀椀on on user, or dura琀椀on or disposal, the ownership is
called limited ownership. For example, limited ownerships in English law is life tenancy when an
estate is held only for life. Under a lease, the cul琀椀vator has limited ownership for the lease period
only. The tenants can have limited ownership un琀椀l the cease of the tenancy.
And, before the enactment of the Hindu Succession Act, 1956, a woman had only limited ownership
over the estate because she held the property only for her life and a昀琀er her death; the property
passed on to the last heir or last holder of the property. Another example of limited ownership in
English law is life tenancy when an estate is held only for life.
*Absolute and Limited ownerships are important, below-given types are only for reference.
3. Corporeal ownership: Corporeal ownership is of that object which is tangible in nature. Example:
Land, goods, etc.
4. Incorporeal ownership: Incorporeal ownership is that which is intangible in nature. Example:
Copyright, reputa琀椀on, etc.
5. Sole ownership: When a property is owned by only one legal owner it is called sole ownership.
Example: A person owns a car.
6. Co-ownership: When a property is owned by two or more legal owners it is called co-ownership or
joint ownership. Example: Partnership of business between three partners.
7. Legal ownership: It is the legal claim or 琀椀tle to an asset or property. Therefore, a person who has
legal ownership on a property can transfer it to another party. Example: a lender who has lent
money for a property is the legal owner of that property.
8. Equitable ownership: We do not consider equitable ownership as true ownership because it is only
the bene昀椀t of the property that the buyer will use and enjoy. Example: If MR. X is the legal owner of
a property and MR.Y is the equitable owner. Then MR.X is not en琀椀tled to the use and enjoyment of
the property whereas, MR.Y doesn’t own the property but has the right to use and enjoy it,
something which MR.X cannot do.
9. Trust and bene昀椀cial ownership: Legal and bene昀椀cial ownership belongs to an en琀椀ty who has the
speci昀椀c property right “use and Title” in equity. But the property belongs to some other person.
Example: If MR. John’s property is transferred to trustees to hold it for the bene昀椀t of the
bene昀椀ciaries. It is not MR. John’s trust that owns the land or shares but the trustees of MR. John’s
who owns it. So their names would be used as the trust and bene昀椀ciaries.
10. Vested ownership: According to law vested ownership has the complete and full ownership on the
property. Example: Two people sharing ownership of a property. If one dies the other gets the gain
of vested ownership of the property.
11. Con琀椀ngent ownership: In Con琀椀ngent ownership, the owner does not have the full claim to the
property, but he can claim it on the ful昀椀lment of some condi琀椀ons. These condi琀椀ons are of two types
namely condi琀椀on precedent and condi琀椀on subsequent. Condi琀椀on Precedent is where on the
ful昀椀lment of it the 琀椀tle is completed. Condi琀椀on subsequent is whenever on the ful昀椀lment of it the
琀椀tle already completed is ex琀椀nguished.
3. ZAMINDARIS (ZAMINDARI SETTLEMENT).

Answer:
Land Revenue Systems in Bri琀椀sh India: Three major systems of land revenue collec琀椀on existed in India.
They were – Zamindari, Ryotwari and Mahalwari.
Meaning of Zamindari: “Zamindar” is the holder of large estate, who derived rights from the sovereign to
realize the rent from the tenants.

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Zamindari System:
 Zamindari System was introduced by Cornwallis in 1793 through the Permanent Se琀琀lement Act.
 It was introduced in provinces of Bengal, Bihar, Orissa and Varanasi.
 The Zamindars were con昀椀rmed by the Bri琀椀sh Government in 1802.
 Under this system, the land was held by Zamindars and they are responsible for the payment of
land revenue.
 Also known as the Permanent Se琀琀lement System.
 Zamindars were recognized as the owner of the lands.
 Zamindars were given the rights to collect the rent from the peasants.
 Zamindars never cul琀椀vated the land they owned, they rented them out to the cul琀椀vators.
 The realized amount would be divided into 11 parts. 1/11 of the share belongs to Zamindars and
10/11 of the share belongs to East India Company.
 The total amount of revenue was 昀椀xed for each locality.
 The amount of land revenue may be 昀椀xed once for all when it was called ‘permanent se琀琀lement’
or the se琀琀lement with regard to land revenue may only be temporary and may, therefore, be
revised a昀琀er every 30 or 40 years, as the prac琀椀ce may be.
 Zamindars were given virtually free power to evict the occupier or ryot who failed to pay the rent.
 The original rent payable by each ryot to his Zamindar had to be speci昀椀ed by Zamindar in wri琀椀ng.
 In case any doubt or dispute about rent assessment, the Dewani-Adalat was empowered to decide
the ma琀琀er.
 Under the Bri琀椀sh Empire, the Zamindars were to be subordinate to the crown and not act as
independent lords.
 The Zamindar system is known as ‘absentee landlordism’.
 The Zamindari system covered about 57 per cent of the area of the country.
Advantages of the Zamindari System

1) The Company was assured of the exact amount of revenue every year and it made the revenue certain
and permanent.
2) This se琀琀lement created a loyal class of landed aristocrats.
3) The evils of periodical assessment were removed.
4) The procedure of land revenue collec琀椀on becomes easy.
5) It made the revenue administra琀椀on less costly and the collec琀椀on of revenue easy.
6) It resulted in an extraordinary increase in agricultural produc琀椀on due to extensive cul琀椀va琀椀on of land.
7) It increased the 昀椀nancial posi琀椀on of the Government.
8) It provides security to the interests of Zamindars; and
9) It gave impetus to trade and commerce.

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The disadvantage of the Zamindari system

1) The Zamindars became permanent owners of land and it created absentee landlordism.
2) The cul琀椀vators could not get protec琀椀on but they were le昀琀 to the mercy of the Zamindars because they
did not do anything to promote their well-being and the cul琀椀vators became tenants and they lost their
rights.
3) The Zamindars used to charge heavy amounts of money as rent and on non-payment, evict the
cul琀椀vators.
4) The Zamindars did not take much interest in the development of the lands and this resulted in low
yields from lands.
However, the permanent se琀琀lement of the Zamindari system of 1793 is the wisest and most successful
measure which the Bri琀椀sh Government had adopted in India.
4. RYOTWARY SETTLEMENT (SYSTEM).

Answer: Ryotwari system: ‘Ryot’ means individual cul琀椀vator, peasant, subject and tenant of land,
‘Ryotwari’ is the arrangement about rent made annually in India, directly between the Government and
the ryots.
 This system of land revenue was ins琀椀tuted in the late 18th century by Sir Thomas Munro,
Governor of Madras in 1820.
 This was prac琀椀sed in the Madras and Bombay areas, as well as Assam and Coorg provinces.
 In this system, the peasants or cul琀椀vators were regarded as the owners of the land. They had
ownership rights, could sell, mortgage or gi昀琀 the land.
 The taxes were directly collected by the government from the peasants.
 The rates were 50% in dryland and 60% in the wetland.
 The rates were high and unlike in the Permanent System, they were open to being increased.
 If they failed to pay the taxes, they were evicted by the government.
 Ryot means peasant cul琀椀vators.
 Here there were no middlemen as in the Zamindari system. But, since high taxes had to be paid
only in cash (no op琀椀on of paying in kind as before the Bri琀椀sh) the problem of moneylenders came
into the show. They further burdened the peasants with heavy interests.
 The revenue assessment is announced by the land-owner, when the tenant objects, he is heard
and may be able to sustain his plea for an abatement, so that there is really, a se琀琀lement in that
sense.
Ryotwari system is one of the three principal methods of revenue collec琀椀on in Bri琀椀sh India. It was
prevalent in most of southern India, being the standard system of the Madras Presidency (a Bri琀椀sh-
controlled area now cons琀椀tu琀椀ng much of present-day Tamil Nadu and por琀椀ons of neighbouring states).
The system was devised by Capt. Alexander Read and Thomas (later Sir Thomas) Munro at the end of the
18th century and introduced by the la琀琀er when he was governor (1820–27) of Madras (now Chennai). The
principle was the direct collec琀椀on of the land revenue from each cul琀椀vator by government agents. For this
purpose, all holdings were measured and assessed according to crop poten琀椀al and actual cul琀椀va琀椀on. The
advantages of this system were the elimina琀椀on of middlemen, who o昀琀en oppressed villagers, and an
assessment of the tax on land actually cul琀椀vated and not merely occupied. O昀昀se琀�ng these advantages
was the cost of detailed measurement and of the individual collec琀椀on. This system also gave much power
to subordinate revenue o昀케cials, whose ac琀椀vi琀椀es were inadequately supervised.
The name of the system comes from the word ryot, an Angliciza琀椀on by the Bri琀椀sh in India of the Arabic
word raʿīyah, meaning a peasant or cul琀椀vator. The Arabic word passed into Persian (raʿeyyat) and was
carried by the Mughals, who used it throughout India in their revenue administra琀椀on. The Bri琀椀sh
borrowed the word from them and con琀椀nued to use it for revenue purposes in the Anglicized form. The
word has passed into various Indian languages, but in northern India, the Hindi term Kisan is generally
used.
5. IX SCHEDULE OF THE CONSTITUTION.

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Answer: 9th schedule along with Ar琀椀cle 31A and 31B was added in 1951 through the First Amendment to
the Indian Cons琀椀tu琀椀on. It was meant to enact some new laws which were important to transform India
into a more egalitarian society. The amendment was the need of the hour as Sri Kameshwar Singh,
Maharaja of Darbhanga challenged the validity of the Bihar Land Reforms Act, (in the case of Kameshwar
Singh v. The State of Bihar) government’s decision to classify Zamindars into di昀昀erent categories for
procuring their land was cri琀椀cized by the judiciary and it was a major setback as the Court stated that
doing so was a viola琀椀on of Art. 14 that guarantees equal protec琀椀on of laws to the ci琀椀zens as such
classi昀椀ca琀椀on was discriminatory.
To give cons琀椀tu琀椀onal validity to land reform laws, it had become necessary to bring the Amendment to
the Cons琀椀tu琀椀on. As a result, the Parliament inserted the following Ar琀椀cles and Schedule:
1. Ar琀椀cle 31-A by the Cons琀椀tu琀椀on (First Amendment) Act, 1951 with retrospec琀椀ve e昀昀ect,
2. Ar琀椀cle 31-B validates all the Acts enacted by the States for the purpose of land reforms and
tenancy.
3. Schedule – IX incorporates all such Acts and validates them.
Ar琀椀cle 31B states that “none of the Acts and Regula琀椀ons speci昀椀ed in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act,
Regula琀椀on or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any
provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regula琀椀ons shall, subject to the power of any competent Legislature to
repeal or amend it, con琀椀nue in force”.
Hence, when any legisla琀椀on is kept under the 9th schedule, it does not ma琀琀er whether it violates the
fundamental rights of a person. This provision restricted the rights of the judiciary and on other hands,
increased the power of the legislature. Hence, it started the con昀氀ict between the judiciary and the
government.
Features of Article 31B

 Retrospec琀椀ve in nature- If an act is held uncons琀椀tu琀椀onal and therea昀琀er is put under 9th
scheduled it will be considered as its part since its commencement.
 Jeejeebhoy v. Assistant Collector— the court stated that “Ar琀椀cle 31B shows that it is a dras琀椀c and
novel method of an amendment”.
 To protect property rights- Ar琀椀cle 31B was inserted in the cons琀椀tu琀椀on for legisla琀椀on governing
rights rela琀椀ng to the property. But, in the years following, it has resulted in the inser琀椀on of other
laws also for purposes other than that related to society and economics.
9th Schedule
The 9th schedule was dra昀琀ed by the 昀椀rst government of independent India in the tenure of J L Nehru. It
represents a dras琀椀c but innova琀椀ve technique of amending the Indian Cons琀椀tu琀椀on. It is a method to
bypass the judicial review and judicial scru琀椀ny. Any act which is added under the 9th schedule gets
resistant from any encroachment from judiciary even if it infringes the fundamental rights of an individual.
The result of the clash of ideology between the conserva琀椀ve judiciary and progressive and growth-
oriented legislature and execu琀椀ves, it was added to cover only a few legisla琀椀ons under its ambit, but with
the passage of 琀椀me, the government used it as a blanket for many types of legisla琀椀on covering over 280
Acts in the present.
Objectives
1. To implement various land reforms, a昀琀er independence.
2. Aboli琀椀on of Zamindari system in order to put an end to feudalis琀椀c society and to provide a
pavement for socialism to take its place.

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3. To immunize certain legisla琀椀ons which act as a blockade in bringing reforms and that have the
poten琀椀al to infringe fundamental rights.
4. To uphold the interests of weaker sec琀椀ons of the society by bringing them on par with the other
sec琀椀ons of the society.
5. To meet the cons琀椀tu琀椀onal goal of establishing an egalitarian society and to reduce the
concentra琀椀on of land in few hands by dividing it into the farmers.
6. DEFINE URBAN LAND AND WHAT IS URBAN LAND CEILING.

Answer:
7. LAND GRABBING ACT.

Answer: It has come to the no琀椀ce of the Government that there are organised a琀琀empts on the part of
certain lawless persons opera琀椀ng individually and in groups to grab either by force or by deceit or
otherwise lands belonging to the Government, a local authority, a religious or charitable ins琀椀tu琀椀on or
endowment, including wakf or any other private person.
An Act to prohibit the ac琀椀vity of land grabbing in the State of Andhra Pradesh and to provide for
ma琀琀ers connected therewith, and whereas public order is adversely a昀昀ected by such unlawful ac琀椀vity of
land grabbers.
In MRO, Saroor Nagar Mandal, R.R. District v. Special Court, it has been observed that the Act is
protec琀椀ve legisla琀椀on in favour of owners but not otherwise. It is intended to obviate the di昀케cul琀椀es and
hardship faced by these landowners whose land is grabbed illegally.
Salient features of the Andhra Pradesh/Telangana Land Grabbing (Prohibition) Act, 1982:
1. The Telangana Land Grabbing (Prohibi琀椀on) Act, 1982 is a penal law and its object is to prohibit the
ac琀椀vity of land grabbing in the State of Telangana and to provide for ma琀琀ers connected therewith
(Preamble).
2. The Act extends to the whole of the State of Telangana and is applicable to all lands situated
within the limits of Urban Agglomera琀椀on or any other lands no琀椀昀椀ed by the Government. The Act
shall be deemed to have come into force on the 29th June 1982 (Sec琀椀on 1).
3. The Act consists of 17 Sec琀椀ons followed by Sec琀椀ons 7A, 17A and 17B and one schedule.
4. In Sec琀椀on 2 of the Act the terms like Government, land, land belonging to a private person, land
grabber, land grabbing, no琀椀昀椀ca琀椀on, person, prescribed, schedule, a special court, special Tribunal
and unauthorised structures are de昀椀ned.
In Mandal Revenue O昀케cer vs. Goundla Venkaiah, it has been held that the Act deals with all types
of land grabbing, whether the land is public or private.
5. The Act declares that land grabbing in any form is unlawful and is an o昀昀ence punishable under the
Act (Sec琀椀on 3).
6. The Act prohibits land grabbing and makes any con琀椀nuous occupa琀椀on of grabbed land belonging
to the Government, Local Authority, Religious or Charitable Ins琀椀tu琀椀on or Endowment or Wakf or a
private person, by any person otherwise than as a lawful tenant, is an o昀昀ence and provides
speci昀椀ed punishments, for such acts (Sec琀椀on 4).
7. The Act provides penal provisions for sale or allotment or o昀昀ering or adver琀椀sing for sale or
allotment of the grabbed land.
8. The Act extends the penal provisions in respect of o昀昀ences commi琀琀ed by a company (Sec琀椀on 6).
9. The Act empowers the Government to cons琀椀tute special courts or tribunals for the purpose of
land grabbing ma琀琀ers (Sec琀椀on 7).
10. The Special Court may, either suo motu or on an applica琀椀on made by any person, o昀케cer or
authority take cognizance of and try every case arising out of any alleged act of land grabbing.
11. The Act envisages that the Special Courts will have the powers of the civil courts and the courts of
the session (Sec琀椀on 9).

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12. Once a land alleged to be grabbed comes before a special court, the burden of proof lies on the
person so alleged to establish that the land has not been grabbed by him (Sec琀椀on 10).
13. The Act makes null and voids all the transac琀椀on rela琀椀ng to any aliena琀椀on of land grabbed or any
part thereof by way of sale, lease, gi昀琀, exchange, se琀琀lement, surrender, usufructuary mortgage or
otherwise (Sec琀椀on 17).
14. The Act empowers the special court to review its own judgment to prevent the miscarriage of
jus琀椀ce (Sec琀椀on 17-A).
8. PUBLIC PURPOSE.
Answer:
Sec琀椀on 2(1) of the Right to Fair Compensa琀椀on and Transparency in Land Acquisi琀椀on, Rehabilita琀椀on and
Rese琀琀lement Act, 2013, The provisions of this Act rela琀椀ng to land acquisi琀椀on, compensa琀椀on,
rehabilita琀椀on and rese琀琀lement, shall apply, when the appropriate Government acquires land for its own
use, hold and control, including for Public Sector Undertakings and for a public purpose, and shall include
the following purposes, namely:--
(a) For strategic purposes rela琀椀ng to the naval, military, air force, and armed forces of the Union, including
central paramilitary forces or any work vital to na琀椀onal security or defence of India or State police, the
safety of the people; or
(b) For infrastructure projects, which includes the following, namely:
(i) all ac琀椀vi琀椀es or items listed in the no琀椀昀椀ca琀椀on of the Government of India in the Department of
Economic A昀昀airs (Infrastructure Sec琀椀on) number 13/6/2009-INF, dated the 27th March 2012, excluding
private hospitals, private educa琀椀onal ins琀椀tu琀椀ons and private hotels;
(ii) projects involving agro-processing, supply of inputs to agriculture, warehousing, cold storage facili琀椀es,
marke琀椀ng infrastructure for agriculture and allied ac琀椀vi琀椀es such as dairy, 昀椀sheries, and meat processing,
set up or owned by the appropriate Government or by a farmers' coopera琀椀ve or by an ins琀椀tu琀椀on set up
under a statute;
(iii) project for industrial corridors or mining ac琀椀vi琀椀es, na琀椀onal investment and manufacturing zones, as
designated in the Na琀椀onal Manufacturing Policy;
(iv) Project for water harves琀椀ng and water conserva琀椀on structures, sanita琀椀on;
(v) Project for Government administered, Government aided educa琀椀onal and research schemes or
ins琀椀tu琀椀ons;
(vi) Project for sports, health care, tourism, transporta琀椀on or space programme;
(vii) Any infrastructure facility as may be no琀椀昀椀ed in this regard by the Central Government and a昀琀er
tabling of such no琀椀昀椀ca琀椀on in Parliament;
(c) Project for project a昀昀ected families;
(d) Project for housing for such income groups, as may be speci昀椀ed from 琀椀me to 琀椀me by the appropriate
Government;
(e) Project for planned development or the improvement of village sites or any site in the urban areas or
provision of land for residen琀椀al purposes for the weaker sec琀椀ons in rural and urban areas;
(f) project for residen琀椀al purposes to the poor or landless or persons residing in areas a昀昀ected by natural
calami琀椀es, or to persons displaced or a昀昀ected by reason of the implementa琀椀on of any scheme undertaken
by the Government, any local authority or a corpora琀椀on owned or controlled by the State.
Instances of Public Purpose:

Railways, telegraph, roads, railway sta琀椀ons, bus sta琀椀ons, aerodrome, industrial estates dairy projects,
mining, defence opera琀椀ons, dams, parks, archaeological sites, 昀椀re sta琀椀on, educa琀椀onal ins琀椀tu琀椀ons, public
libraries, widening of roads, construc琀椀on of buildings for hospitals, maternity homes, and child welfare
centre, providing houses for slum dwellers etc. are all the instances of public purpose.

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Public Purpose includes the following aims:

1. In which general interest of the community, or a sec琀椀on of the community, as opposed to the par琀椀cular
interests of the individuals, is directly or vitally concerned;
2. Which would preserve or promote public health, comfort or safety of the public, or a sec琀椀on of it,
whether or not the individual members of the public may make use of the property acquired;
3. Which would promote the public interest, or tend to develop the natural resources of the state;
4. Which would enable the department of the government to carry on its governmental func琀椀ons;
5. Which would serve the public, or a sectn of it, with some necessarily or the convenience of life, which
may be required by the public as such, provided that the public may enjoy such service as of right; or
6. Which would enable individuals to carry on a business, in a manner in which it could not be otherwise
be done, if their success will indirectly enhance public welfare, even if the acquisi琀椀on is made by a private
individual, and the public has no right to any service from him, or to enjoy the property acquired; or
7. If the use to which the property would be put, is one of the widespread general public bene昀椀t not
involving any right on the part of the general public itself, to use the property or;
8. Which would result in an advantage to the public; it is not necessary that the property, or the work
upon it, should be available to the public as such; the acquisi琀椀on may be in favour of individuals, but, in
furtherance of the scheme of public u琀椀lity, which would result in enhancement of public welfare.
One of the tests of public purpose is if the purpose would sa琀椀sfy the expenditure of public funds and in
a number of judgements, courts have said that government is the best judge of public purpose. The
declara琀椀on of public purpose by the government is 昀椀nal except if there is a colourable exercise of power.
To allege mala 昀椀de or colourable exercise of the power of eminent domain the facts or grounds should be
pleaded in support, which would show at least some nexus between the party for whose bene昀椀t the
power is sought to be exercised and the authori琀椀es of the state which could support a reasonable
suspicion that there has been an improper exercise, of such power exceeding the ambit of eminent
domain as to cons琀椀tute a fraud. The power to select the lands is le昀琀 to the reasonable discre琀椀on of the
government and the courts cannot interfere in this regard. The view held by court is that a declara琀椀on
under Sec琀椀on 6 (Public of Social Impact Assessment Study) is conclusive evidence of public purpose and
unless it is shown that there has been a colourable exercise of power courts cannot go on to look whether
it is a public purpose or not.
With the march of civiliza琀椀on, the no琀椀ons as to the scope of the general interest of community changes
and widens, with the result that old and narrower no琀椀ons as to the sanc琀椀ty of private interest or
individual no longer stem the forward 昀氀owing 琀椀de of 琀椀me and give way to broader no琀椀ons of the general
interest of the community.
In the State of Bihar vs. Kameshwar Singh, 1952, it has been observed that whatever furthers the
general interests of the community ‘as opposed to the par琀椀cular interest of the individual must be
regarded as a public purpose’. The phrase has to be construed according to the spirit of the 琀椀me in which
the par琀椀cular legisla琀椀on is enacted.

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LONG ANSWERS
9. LAND REFORMS.
Answer: Land Reforms in India a昀琀er Independence: Purposes and Features
Meaning of Land Reforms:

Land reform is a broad term. It refers to an ins琀椀tu琀椀onal measure directed towards altering the exis琀椀ng
pa琀琀ern of ownership, tenancy and management of land.
It entails “redistribu琀椀on of the rights of ownership and/or use of land away from large landowners and
in favour of cul琀椀vators with very limited or no landholdings.”
Land reforms programmes in India include Aboli琀椀on of Intermediaries, Tenancy reforms, consolida琀椀on
of holdings and determina琀椀on of holdings per family and to distribute surplus land among landless
peoples.
At the 琀椀me of independence ownership of land was concentrated in the hands of a few. This led to the
exploita琀椀on of the farmers and was a major hindrance towards the socio-economic development of the
rural popula琀椀on. Equal distribu琀椀on of land was, therefore, an area of focus of Independent India's
government. Laws for the land ceiling were enacted in various states during the 50s & 60s which were
modi昀椀ed on the direc琀椀ves of the central government in 1972.
Objectives of Land Reforms:

Land reform is a part of the heritage of the country’s freedom movement since the agrarian structure
that we inherited from the Bri琀椀sh at the 琀椀me of independence was of the feudalis琀椀c exploita琀椀ve
character. Zamindars- intermediaries-moneylenders played a big role in exploi琀椀ng the masses.
It is in this background that we have to examine the objec琀椀ves of land reform policy in India. Land
reform measures aim not only at raising agricultural produc琀椀vity. It is also viewed as a tool for social
upli昀琀.
The major objectives of the land reform package, as identified in the Eighth Plan, are:
1. Restructuring of agrarian rela琀椀ons to achieve an egalitarian structure;

2. Elimina琀椀on of exploita琀椀on in land rela琀椀ons;
3. The actualiza琀椀on of the goal of “land to the 琀椀ller”;
4. Improvement of socio-economic condi琀椀ons of the rural poor by widening their land base;
5. Increasing agricultural produc琀椀on and produc琀椀vity;
6. Facilita琀椀ng land-based development of rural poor; and
7. Infusion of a great measure of equality in local ins琀椀tu琀椀ons.
In 昀椀ne, growth and social jus琀椀ce are the basic objec琀椀ves of land reform measures. Under the 1949
Indian cons琀椀tu琀椀on, states were granted the powers to enact (and implement) land reforms. This
autonomy ensures that there has been signi昀椀cant varia琀椀on across states and 琀椀me in terms of the number
and types of land reforms that have been enacted. We classify land reform acts into four main categories
according to their main purpose.
Measures of Land Reforms:

The comprehensive land reform policy that evolved so far a昀琀er independence consisted of:
1. Aboli琀椀on of intermediaries between the State and tenants;
2. Tenancy reforms that provide
(a) Security to tenants,
(b) Ra琀椀onalisa琀椀on and regula琀椀on of rent and
(c) Conferment of ownership rights on tenants;
3. Fixa琀椀on of ceiling on landholdings; and

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4. Consolida琀椀on of holdings.
1. Abolition of intermediaries:
Aboli琀椀on of Zamindari and similar intermediary tenures during 1950-55 essen琀椀ally involved removal of
intermediary levels or layers of various amorphous and parasi琀椀c groups in the land between the State and
the actual cul琀椀vators. However, such aboli琀椀on of intermediaries involved compensa琀椀on to the owners of
the land.
As a result of this measure, about 2.5 crore farmers were brought into direct rela琀椀onship with the
State. This facilitated distribu琀椀on of 61 lakh hectares of land to landless farmers. Large areas of privately-
owned forests and wasteland now vested in the State.
Despite the aboli琀椀on of intermediary rights, poor peasantry con琀椀nued to be exploited in various ways.
It led to large-scale ejectment of poor tenants from land. While landlordism has been abolished, absentee
landlordism now con琀椀nues to 昀氀ourish. The legisla琀椀on conferred ownership rights not upon the actual
cul琀椀vator, but on the statutory tenant, who himself was an intermediary with a chain of sub-tenants
under him.
All this happened because:
(i) The law permi琀琀ed the intermediaries to retain their home farms,
(ii) No limit was put on the area of land they could retain,
(iii) The term ‘personal cul琀椀va琀椀on’ was ill-de昀椀ned, and
(iv) No protec琀椀on was given to sharecroppers and other tenants-at-will.
Thus, the aboli琀椀on of intermediary rights on land has not been an unmixed blessing. “Not every Y was
crossed and every ‘i’ was do琀琀ed, but the job was done.” Undoubtedly, this zamindari aboli琀椀on has paved
the way for a remarkable shi昀琀 in the balance of power. But the goal of “land to the 琀椀ller” is yet to be
achieved.
We can men琀椀on the case of Kameshwar Singh vs. the State of Bihar
2. Tenancy Reforms:
Tenancy legisla琀椀ons have taken three forms:

(i) Regula琀椀on of rent,
(ii) Providing security of tenure, and
(iii) Conferring rights of ownership to tenants.
Rent payable to the landowners should not exceed one-昀椀昀琀h to one-fourth of the gross produce of the
land. In the light of this guideline, all the states have enacted laws for 昀椀xa琀椀on of rent. However, large
inter-state varia琀椀ons exist in the 昀椀xa琀椀on of land rental rates. Further, one no琀椀ces inter-state di昀昀erences
in land rents.
Even the tenancy reforms have failed to regulate rent. Owing to the weak posi琀椀on of tenants, demand
for fair and just rent from landowners occasionally lead to ejectment from land.
Tenancy Legisla琀椀ons have made it clear that in no case the tenants can be evicted except only in the
situa琀椀on where landlords themselves want to resume cul琀椀va琀椀on. Even in the event of a resump琀椀on of
cul琀椀va琀椀on by the owners, tenancy legisla琀椀ons have made it obligatory to leave a minimum area for the
tenant.
A very important aspect of land reform is the conferment of ownership rights to tenants in respect of
non-resumable land. As a result of this measure, by 2000, around 124.2 lakh tenants opera琀椀ng on more

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than 4 p.c. of the cul琀椀vated area have been bene昀椀ted from this ownership rights or their rights have been
protected on 63.2 lakh hectares of land.
On the eve of tenancy reforms, the area under tenancy was around 50 p.c. As a result of this ac琀椀on, this
area has been reduced to 15 p.c. of the operated area by 2000.
Tenancy laws that have been framed in di昀昀erent states contained a provision for the resump琀椀on of
land by the landowners for ‘personal cul琀椀va琀椀on’ with the object of protec琀椀ng the interests of landowners,
rather than tenants.
3. The ceiling on Landholdings:

To reduce the exis琀椀ng dispari琀椀es in the pa琀琀ern of land-ownership and make some land available for
distribu琀椀on to landless agricultural workers, the Second Plan (1956-1961) recommended the imposi琀椀on of
ceilings on agricultural holdings.
It was envisaged that land above a certain limit would be acquired by the State and redistributed among
the landless workers and small farmers so as to meet their hunger for land and, thus, to enable them to
create economic holdings.
Land ceiling laws were passed in two phases. In the 昀椀rst phase—which lasted up to the end of 1972—
‘landholder’ was treated as the unit of the cul琀椀va琀椀on. This ceiling unit was changed to ‘family’ a昀琀er 1972.
The ceiling limits have also been lowered in the second phase with di昀昀erences varying as between
irrigated land with two crops, irrigated land with one crop, and dry land. But the exemp琀椀on for orchards,
grazing land, ca琀琀le- breeding farms, religious/charitable/educa琀椀onal trusts, sugarcane planta琀椀ons, tank,
昀椀sheries have made the ceiling laws virtually redundant.
Up to end September 2001, the total amount of land declared surplus was 73.67 lakh acres, 64.95 lakh
acres of land have been taken over by the states. A total of 53.79 lakh acres of land have been distributed
among 54.84 lakh landless poor. This amounts to saying that about 12 lakh acres of land could not be
distributed because of a variety of reasons, of which li琀椀ga琀椀on is considered to be the most inhibi琀椀ng
factor.
4. Consolidation of Landholdings:
Fragmented and subdivided landholdings, as well as small-sized holdings, have made Indian agriculture
un-remunera琀椀ve. So consolida琀椀on of these lands is necessary to boost e昀케ciency and economy in India’s
agriculture. It has been completed in the states of Punjab, Haryana and U琀琀ar Pradesh.
Till December 2001, nearly, 163.3 lakh acres of land or 1 /3rd of the total cul琀椀vated area have been
consolidated. Thus, the success story in this regard is rather disappoin琀椀ng. One of the reasons for the
tardy progress of this aspect of land reforms is that small farmers have a strong fear that consolida琀椀on
favours large farmers.
An Overall Appraisal of Land Reforms:

A昀琀er more than 70 years of independence, one no琀椀ces some achievements in the sphere of land reforms.
At the same 琀椀me, our e昀昀orts in this direc琀椀on have not yielded the desired results. Most of the planks of
land reform measures are ambivalent and there are large gaps between policy and legisla琀椀on and
between legisla琀椀on and implementa琀椀on. And “land reform measures were conceived boldly but were
implemented badly”—observed an expert.

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Finally, we have Acts which a琀琀empted to allow consolida琀椀on of disparate land-holdings.' Though these
reforms and in par琀椀cular the la琀琀er was jus琀椀昀椀ed partly in terms of achieving e昀케ciency gains in agriculture
it is clear from the acts themselves and from the poli琀椀cal manifestos suppor琀椀ng the acts that the main
impetus driving the 昀椀rst three reforms was poverty reduc琀椀on.
Exis琀椀ng assessments of the e昀昀ec琀椀veness of these di昀昀erent reforms are highly mixed. Though promoted by
the centre in various Five Year Plans, the fact that land reforms were a state subject under the 1949
Cons琀椀tu琀椀on meant that enactment and implementa琀椀on were dependent on the poli琀椀cal will of state
governments. The perceived oppressive character of the Zamandari and their close alliance with the
Bri琀椀sh galvanized broad poli琀椀cal support for the aboli琀椀on intermediaries and led to widespread
implementa琀椀on of these reforms most of which were complete by the early 1960s. Centre-state alignment
on the issue of tenancy reforms was much less pronounced. With many state legislatures controlled by the
landlord class, reforms which harmed this class tended to be blocked, though where tenants had
substan琀椀al poli琀椀cal representa琀椀on notable successes in implementa琀椀on were recorded.
10. EXPLAIN DOCTRINE OF EMINENT DOMAIN AND BONA VACANTIA.

Answer:
Definition by Wikipedia: Eminent domain (United States, Philippines), land acquisi琀椀on (India, Malaysia,
Singapore), compulsory purchase (United Kingdom, New Zealand, Ireland), resump琀椀on (Hong Kong,
Uganda), resump琀椀on/compulsory acquisi琀椀on (Australia), or expropria琀椀on (France, Italy, Mexico, South
Africa, Canada, Brazil, Portugal, Spain, Chile, Denmark, Norway, Sweden, Finland, Germany, Panama) is
the power of a state, provincial, or na琀椀onal government to take private property for public use. It doesn’t
include the power to take and transfer ownership of private property from one property owner to another
private property owner without a valid public purpose. However, this power can be legisla琀椀vely delegated
by the state to municipali琀椀es, government subdivisions, or even to private persons or corpora琀椀ons, when
they are authorized by the legislature to exercise the func琀椀ons of public character.
Meaning of Eminent Domain
The doctrine of ‘Eminent domain’, in its general connota琀椀on means the supreme power of the king or
the government under which property of any person can be taken over in the interest of the general
public. However, over the years such taking over the property by the king or the government has been
made possible only a昀琀er compensa琀椀ng the landowner of such property. Thus eminent domain explained
as the power of the king or the government to take over the property of a private person when it is
needed for a public purpose. The doctrine of ‘eminent domain’ is based on two maxims namely
 Salus Populi supreme lex esto, which means that the welfare of the people is the paramount law,
and
 Necessita public major est quam, which means that public necessity is greater than the private
necessity.
At present, the exercise of eminent domain is not limited to real property. Governments may also
condemn personal property, such as supplies for the military in war琀椀me, franchises, this includes
intangible property such as a contract rights, patents, trade secrets, and copyrights.
Eminent Domain is the power of the State to appropriate private property for its own use without the
owner’s consent. The Land Acquisi琀椀on Act, 1894 contained the power of an eminent domain. The
meaning of the power in its irreducible term is:
 power of the sovereign
 to acquire the property of an individual
 for public use
 without the necessity of his consent.
This power is based on the sovereignty of the State. Payment of just compensa琀椀on to the owner of the
land which is acquired is part of the exercise of this power. Eminent domain power is regarded as an
inherent power of the State to take private property for a public purpose. This power depends on the
superior domain of the State over all the property within its boundaries. An incidental limita琀椀on of this
power is that the property shall not be taken without just compensa琀椀on. The expression “eminent

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domain” means permanent (eminent) dominion (domain) of the state on the property. The power of the
State to take private property for public use and the consequent right of the owner to compensate now
emerge from the cons琀椀tu琀椀on of India. In entry 42 list III of the seventh schedule under Indian
Cons琀椀tu琀椀on, both union and States government are empowered to enact laws rela琀椀ng to the acquisi琀椀on
of property. The use of eminent domain power for land acquisi琀椀on is also jus琀椀昀椀ed when the public
purpose in ques琀椀on can be served by only a speci昀椀c piece of land, which has no subs琀椀tute
The doctrine of Bona Vacantia

Meaning of Bona Vacan琀椀a:
 ‘Bona” is a La琀椀n term means goods and ‘Vacan琀椀a” is a La琀椀n term means vacant.
 ‘Bona Vacan琀椀a’ literally means vacant goods and is the legal term given to an ownerless
property that passes to the Crown.
The principle behind the doctrine of Bona Vacan琀椀a is that ‘the State may more properly be custodian
and bene昀椀ciary of abandoned property than any other person.
The doctrine of Bona Vacan琀椀a was declared to be part of the law of India by Privy Council as early as in
1860 in the case of Collector of Masulipatnam vs. Cavaly Vancata Narrainappa.
In India, the scope of Bona Vacan琀椀a is wider than England. In England, the states right to Bona Vacan琀椀a
is limited only to a treasure trove, wreck, waifs, estrays or whole or sturgeon. But in India, a property
which has no righ琀昀ul claimant will in all cases be taken by the state.
In Bombay Dyeing and Manufacturing Co. vs. The state of Bombay, it has been held that the term ‘Bona
vacan琀椀a’ comprises proper琀椀es of two di昀昀erent kinds, those which come in by escheat and those over
which no one has a claim.
Bona vacan琀椀a is used to describe a situa琀椀on where a certain amount of goods are unclaimed over a
period of 琀椀me. No ownership is claimed over those goods or property. When such a situa琀椀on arises then
the goods or the property goes to the government and the government serves as the custodian of those
goods or property. The government has to take such goods and act as their owners for perpetuity. The
cases of such ownership arise when the goods or the property are being abandoned when the person dies
without any living heirs. Such a situa琀椀on can also arise when a business or unincorporated associa琀椀on is
dissolved the assets thereof are not distributed appropriately. Other processes how such situa琀椀on arises
are when a trust in the path of failing or when the property owner is nowhere to be found and does not
any informa琀椀on about its whereabouts. In other words, it is a property without any claim. Bona vacan琀椀a
is used for those goods and property which does not have any ownership. Ownership and property are
two interrelated concepts. There cannot be any ownership without any property and also there can be
any property without ownership. However, Bona vacan琀椀a are those goods and property which loses its
ownership over a period of 琀椀me and remains the same for a long 琀椀me.
A 昀椀ne line of dis琀椀nc琀椀on between ‘escheat’ and ‘bona vacan琀椀a’ is that is ‘escheat’, the state becomes
the owner of the property when a person dies without heir or successor as his ul琀椀mate heir, whereas in
‘Bona Vacan琀椀a’ there is not even an owner of the property and the state merely takes possession of the
property, which is an abandoned one.
11. PROCEDURE FOR ACQUIRING LAND UNDER THE LAND ACQUISITION ACT, 2013.
Answer:
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 is a legisla琀椀on that regulates the land acquisi琀椀on and provides laid down rules
for gran琀椀ng compensa琀椀on, rehabilita琀椀on and rese琀琀lement to the a昀昀ected persons in India. The Act has
provisions to provide fair compensa琀椀on to those whose land is taken away, brings transparency to the
process of acquisi琀椀on of land to set up factories or buildings, infrastructural projects and assures
rehabilita琀椀on of those a昀昀ected. The Act will replace the Land Acquisi琀椀on Act, 1894, a nearly 120-year-old
law enacted during Bri琀椀sh rule.

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Aims and objectives: The aims and objectives of the Act include:
 To ensure, in consulta琀椀on with ins琀椀tu琀椀ons of local self-government and Gram Sabhas a humane,
par琀椀cipa琀椀ve, informed and transparent process for land acquisi琀椀on for industrializa琀椀on,
development of essen琀椀al infrastructural facili琀椀es and urbaniza琀椀on with the least disturbance to
the owners of the land and other a昀昀ected families.
 Provides just and fair compensa琀椀on to the a昀昀ected families whose land has been acquired and to
those who are a昀昀ected by such acquisi琀椀on.
 Make adequate provisions for such a昀昀ected persons for their rehabilita琀椀on and rese琀琀lement.
Purpose and scope:

The Act aims to establish the law on land acquisi琀椀on, as well as the rehabilita琀椀on and rese琀琀lement of
those directly a昀昀ected by the land acquisi琀椀on in India. The scope of the Act includes all land acquisi琀椀on
whether it is done by the Central Government of India, or any State Government of India or any local
body.
The Act is applicable when:

 Government acquires land for its own use, hold and control, including land for Public sector
undertakings.
 Government acquires land with the ul琀椀mate purpose to transfer it for the use of private
companies for a stated public purpose. The purpose of LARR 2013 includes public-private-
partnership projects but excludes land acquired for state or na琀椀onal highway projects.
 Government acquires land for immediate and declared use by private companies for a public
purpose.
The provisions of the Act does not apply to acquisi琀椀ons under 16 exis琀椀ng legisla琀椀ons including the Special
Economic Zones Act, 2005, the Atomic Energy Act, 1962, the Railways Act, 1989, etc.
Steps for acquiring land:
First Step Social Impact Assessment Study, Sections 4 – 10A:

1. Prepara琀椀on of Social Impact Assessment Study (SIAS)(Sec琀椀on 4):
A. Whenever the appropriate Government intends to acquire land for a public purpose, it shall
consult the concerned Panchayat, Municipality in the a昀昀ected area and carry out a SIAS in
consulta琀椀on with them.
B. The no琀椀ce for SIAS should be made available in the local language to the Panchayat,
Municipality, Collector O昀케ce, Tehsil etc. and shall be published in the a昀昀ected areas.
C. Adequate representa琀椀on should be given to the local bodies.
D. The SIA study should be completed within a period of six months from the date of its
commencement.
E. The SIAS report shall be made available to the public.
F. The SIAS includes
 Whether the acquisi琀椀on serves a public purpose.
 Es琀椀ma琀椀on of a昀昀ected families.
 The extent of lands, public and private, houses, se琀琀lements and other common
proper琀椀es likely to be a昀昀ected by the proposed acquisi琀椀on.
 Whether the extent of land proposed for acquisi琀椀on is the absolute bare minimum
extent needed for the project.
 Whether the land acquisi琀椀on at an alternate place has been considered and found not
feasible.
 Study of the social impact of the project.
 Study of the overall costs of the project vis-à-vis the bene昀椀ts of the project.
 Study of impact on the livelihood of the a昀昀ected families.

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2. Public hearing for social impact Assessment (Sec琀椀on 5):

Whenever an SIA is required to be prepared under Sec琀椀on 4, the appropriate Government shall ensure
that a public hearing is held at the a昀昀ected area, a昀琀er giving adequate publicity about the date, 琀椀me and
venue, to ascertain the views of the a昀昀ected families to be recorded and included in the SIA Report.
3. Publica琀椀on of SIAS (Sec琀椀on 6):
 The appropriate government prepares the SIA report as per the above-stated Sec琀椀ons and made
available in the local language to the Panchayat, Municipality, District Collector, the Sub-Divisional
Magistrate and the Tehsil, and shall be published in the a昀昀ected areas, and in the website.
 Wherever Environment Impact Assessment is carried out, a copy of the SIA report shall be made
available to the Impact Assessment Agency.
4. Appraisal of SIAR by an Expert Group (Sec琀椀on 7):
 The Appropriate Government shall ensure that the SIA report is evaluated by an independent
mul琀椀-disciplinary Expert Group.
 The Expert Group consists of two members of social scien琀椀sts, local body, experts on
rehabilita琀椀on and a technical expert.
5. Examina琀椀on of the proposal for land acquisi琀椀on and SIA report (Sec琀椀on 8).
6. Exemp琀椀on from SIA (Sec琀椀on 9): Under Sec 40 the appropriate Government may exempt
undertaking of the SIA study.
7. Special provision to safeguard food security (Sec琀椀on 10): Only under excep琀椀onal circumstances
no irrigated mul琀椀-cropped land shall be acquired under this Act.
Second Step, Notification and Acquisition, Sections 11 –30.

1. Publica琀椀on of preliminary no琀椀昀椀ca琀椀on and power of o昀케cers thereupon (Sec琀椀on 11):
A preliminary no琀椀昀椀ca琀椀on for acquisi琀椀on of land to be given in the following manner
A. In the o昀케cial Gaze琀琀e,
B. In two daily newspapers including one in the regional language,
C. No琀椀ce in the o昀케ces of the Panchayat, Municipality, o昀케ce of the District Collector, the Sub-
divisional Magistrate and the Tehsil,
D. Uploading in the website.
E. The contents of the no琀椀ce should be informed to the local body,
F. The no琀椀ce issued includes nature of the public purpose involved, a昀昀ected families, a summary of
the SIA report etc.,
G. No transac琀椀ons in the land speci昀椀ed in the preliminary no琀椀昀椀ca琀椀on,
H. The Collector shall update the land records.
2. Preliminary survey of land (Sec琀椀on 12): For the purpose of acquiring the intended land the
Government conducts survey rela琀椀ng to the boundary, soil test, take levels of the land and any
other measure which requires to test the land.
3. Payment for damage (Sec琀椀on 13): If any damage takes place to the standing crops etc. while
surveying under Sec琀椀on 12 of the Act, will be awarded to the landlord.
4. Lapse of SIA report (Sec琀椀on 14): where a preliminary no琀椀昀椀ca琀椀on under Sec琀椀on 11 is not issued
within twelve months from the date of appraisal of the SIA report, then such report shall be
deemed to have lapsed. Provided that the appropriate Government shall have the power to
extend the period of 12 months if in its opinion circumstances exist jus琀椀fying the same.
5. Hearing of objec琀椀ons (Sec琀椀on 15):
A. Any a昀昀ected person within 60 days from the publica琀椀on of the preliminary no琀椀昀椀ca琀椀on can 昀椀le
objec琀椀ons.
B. The objec琀椀ons should be made to the Collector in wri琀椀ng, and the collector shall give the
objector an opportunity of being heard.
C. The decision of the appropriate Government on the objec琀椀ons made shall be 昀椀nal.
6. Prepara琀椀on of Rehabilita琀椀on and Rese琀琀lement (R & R) Scheme by the Administrator (Sec 16):

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A. The Administrator for R & R conducts a survey and undertakes a census of the a昀昀ected
families to know:
 Par琀椀culars of lands and immovable proper琀椀es being acquired of each a昀昀ected family.
 Livelihoods lost in respect of land losers and landless whose livelihoods are dependent
on the lands being acquired.
 A list of public u琀椀li琀椀es and Government buildings which are a昀昀ected.
 Details of ameni琀椀es which are a昀昀ected.
7. Review of the R & R scheme (Sec琀椀on 17): The Collector shall review dra昀琀 scheme submi琀琀ed under
Sec琀椀on 16(6), and submits the dra昀琀 R & R Scheme along with his sugges琀椀ons to the Commissioner
R & R for approval of the Scheme.
8. Approved R & R Scheme to be made public (Sec琀椀on 18),
9. Publica琀椀on of declara琀椀on and summary of R & R (Sec琀椀on 19): If the appropriate Government
sa琀椀s昀椀es with the R & R Scheme it makes it public the report.
10. Land to be marked out, measured and planned including marking of speci昀椀c areas (Sec 20),
11. No琀椀ce to Persons interested (Sec琀椀on 21):
A. The Collector shall publish the public no琀椀ce,
B. A no琀椀ce to all the a昀昀ected persons to a琀琀end personally before the Collector,
12. Power to require and enforce the making of statements as to names and interests (Sec 22):
13. Enquiry and land acquisi琀椀on award by Collector (Sec琀椀on 23): The Collector shall enquire into the
objec琀椀ons (if any) raised by the a昀昀ected par琀椀es.
14. Period within which an award shall be made (Sec琀椀on 25): within 12 months from the date of
publica琀椀on of the declara琀椀on under Sec琀椀on 19 the Collector shall make an award.
15. Determina琀椀on of market value of land by Collector (Sec琀椀on 26): The Collector shall adopt the
following criteria in assessing and determining the market value of the land, whichever is higher
A. The Market value,
B. The average sale price for similar land situated in the nearest area.
C. Consented amount of compensa琀椀on in case of lands for private companies.
16. Determina琀椀on of amount of compensa琀椀on (Sec琀椀on 27): Land value as calculated under Sec琀椀on 26
and value of the assets a琀琀ached to the land.
17. Determina琀椀on of value of things a琀琀ached to land or building (Sec 29).
18. Award of Sola琀椀um (Sec琀椀on 30): It is the amount in addi琀椀on to the compensa琀椀on payable to the
a昀昀ected party.
A. The Collector having determined the total compensa琀椀on to be paid, shall, to arrive at the 昀椀nal
award, impose a “sola琀椀um”, an amount equivalent to one hundred per cent of the
compensa琀椀on amount.
B. The Collector shall issue individual awards detailing the par琀椀culars of compensa琀椀on payable
and the details of payment of the compensa琀椀on as speci昀椀ed in the First Schedule.
C. Interest will be paid in addi琀椀on to the market value under Sec 26, @ 12%.
Third step: Payment of compensation or deposit of same in Authority (Section 77):

A. A昀琀er making an award u/s 30, the Collector shall tender payment of the compensa琀椀on awarded
by him to the persons a昀昀ected.
B. Investment of money deposited in respect of lands belonging to person incompetent to alienate
(Sec 78)
C. Payment of interest (Sec琀椀on 80), when the payment of compensa琀椀on is not paid before taking
possession of the land, the Collector shall pay the amount awarded with interest thereon at the
rate of nine per cent, per annum from the 琀椀me of so taking possession un琀椀l it shall have been so
paid or deposited.

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12. SALIENT FEATURES OF THE TELANGANA LAND REFORMS (CEILING ON AGRICULTURAL LAND
HOLDINGS) ACT, 1973.
Answer: Salient features of the Act:
1. As per the Preamble of the Act, the object of the Act is to consolidate and amend the law rela琀椀ng
to the 昀椀xa琀椀on of ceiling on agricultural holdings and taking over of surplus lands and to provide
for the ma琀琀ers connected therewith.
2. The Act, which consists of 30 Sec琀椀ons, has come into force with e昀昀ect from the date of
no琀椀昀椀ca琀椀on i.e., 1.1.1975 although the assent of President was published on 1.1.1973.
3. As per Sec琀椀on 2 of the Act, it gives e昀昀ect to the Direc琀椀ve Principles of State Policy speci昀椀ed in
Clauses (b) and (c) of Ar琀椀cle 30 of the Cons琀椀tu琀椀on of India.
4. Under Sec琀椀on 3, the terms used in the Act, such as Appellate Tribunal, Bank, Ceiling Area, Double
Crop Wetland, Dryland, Family Unit, Government source of irriga琀椀on, Holding, Land, Donor,
Pension, Revenue Divisional O昀케cer, special date standard holding, Tenant, Tribunal, Wet Lands
etc., have been de昀椀ned.
5. The Act prescribes a ceiling area in respect of a family unit consis琀椀ng of not more than 昀椀ve
members to an extent of land equal to one standard holding. In case of family units consis琀椀ng of
more than 昀椀ve members, the ceiling area is an extent of land equal to one standard holding plus
an addi琀椀onal extent of one-昀椀昀琀h of one standard holding for every excess member subject to a
maximum not exceeding two standard holdings (Sec琀椀on 4).
6. Under Sec琀椀on 4A of the Act, there is a provision to increase the limit of ceiling area in respect of
family units or individuals who have one or more major sons who have no land.
7. Sec琀椀on 5 of the Act provides the standard holding for di昀昀erent classes of lands and the manner of
such computa琀椀on of standards.
8. As per Sec琀椀on 6 of the Act, the Government is empowered to cons琀椀tute Tribunals by no琀椀昀椀ca琀椀on
specifying the jurisdic琀椀ons of each such Tribunal and other issues.
9. The Act provides special provisions in respect of transfers made on or a昀琀er 24 th January 1971, but
before the no琀椀昀椀ed date of land by way of sale, gi昀琀, usufructuary mortgage, exchange, se琀琀lement,
surrender or by a trust or any other manner (Sec琀椀on 7).
10. The Act imposes a duty on the persons whose land holdings exceed the speci昀椀ed limit to make a
declara琀椀on of such holdings and surrender such excess land the possession of which vests in the
authorised Revenue O昀케cer (Sec琀椀on 8).
11. The Act empowers the Tribunal to determine the ceiling area under Sec琀椀on 9 of the Act.
12. The Act requires a person whose holdings are in excess of the ceiling area to surrender such excess
land (Sec琀椀on 10).
13. The Act empowers the Revenue Divisional O昀케cer or his authorised o昀케cer to take over the land
surrendered or deemed to have been surrendered by an owner thereof and the possession of such
land vests in such o昀케cer (Sec琀椀on 11).
14. The Act provides special provision for protected Tenants where the holding of any owner included
land held by him, as speci昀椀ed in Sec琀椀on 13 of the Act.
15. The Act requires in Sec琀椀on 14 that the excess lands vested in the Government shall be allo琀琀ed for
the use of house sites for agricultural labourers, village ar琀椀sans or other poor persons who have
no house or house sites or to the weaker sec琀椀ons of the people depending on agriculture.
16. The Act provides provision for payment of the amount in respect of land vested in Government
with the speci昀椀ed rates either in cash or in bonds or both (Sec琀椀on 15).
17. According to Sec琀椀on 16 of the Act, the Tribunal is empowered to determine the amount payable
for the lands vested in the Government.
18. The Act under Sec琀椀on 17 prohibits aliena琀椀on of holding in respect of excess land by any manner.
19. Under Sec琀椀on 21 of the Act, the High Court has revisional powers from any order passed by an
Appellate Tribunal in respect of ma琀琀ers rela琀椀ng to jurisdic琀椀on.

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20. The Act provides exemp琀椀ons from the applicability of the Act to the lands held by the State or the
Central Government or any local authori琀椀es or religious, charitable or educa琀椀onal ins琀椀tu琀椀ons or a
Wakf of a public nature (Sec琀椀on 23).
21. The Act bars the jurisdic琀椀on of Civil Courts in respect of any ac琀椀on taken by any o昀케cer or
authority under the Act (Sec琀椀on 26).
22. Under Sec琀椀on 27 of the Act, the Government can make rules.
23. Sec琀椀on 28 of the Act facilitates the provisions of the Act to override other laws.
24. This Act repeals the Andhra Pradesh Ceiling on Agricultural Holding Act, 1961 and the Andhra
Pradesh Agricultural Land (Prohibi琀椀on of Aliena琀椀on) Act, 1972.
13. VARIOUS PROVISIONS OF THE A.P. ASSIGNED LANDS (PROHIBITION OF TRANSFER) ACT, 1977.
Answer: Objec琀椀ves of the Act:
1. To prohibit assigned land aliena琀椀on.
2. To regulate assigned land.
3. To issue pa琀琀as as ‘D’ Form.
Salient features of the Act:
1. The preamble of the Act provides that the object of the Act is to prohibit the transfer of certain
lands.
2. The Act is a small Act containing only 12 Sec琀椀ons without dividing into Chapters.
3. Sec琀椀on 2 of the Act gives the de昀椀ni琀椀ons of the term used in the Act such as assigned land,
Government, landless poor person, no琀椀昀椀ca琀椀on, prescribed and transfer.
4. Sec琀椀on 3 of the Act provides that no landless poor person shall transfer any assigned land and no
person shall acquire any assigned land, either by purchase, gi昀琀, lease, mortgage, exchange or
otherwise.
5. The District Collector or any of his authorised o昀케cer not below the rank of a Mandal Revenue
O昀케cer (now Tahsildar) is empowered to take possession of the assigned land and restore the same
to the original assignee or his legal heirs, or to resume the assigned land to the Government for
assignment to landless poor, as the case may be, in a case where the land is transferred under
Sec琀椀on 3 (Sec琀椀on 4).
6. The aggrieved party may appeal against an order passed by the Mandal Revenue O昀케cer (Tahsildar)
within the prescribed 琀椀me to the Revenue Divisional O昀케cer (Sec琀椀on 4A).
7. The District Collector has revisional powers, either suo motu or on an applica琀椀on made to him as to
the regularity of any proceedings not being an appeal made by an aggrieved person against the
order passed by the Revenue Divisional O昀케cer under Sec琀椀on 4A(1) of the Act (Sec琀椀on 4B).
8. The registra琀椀on of documents rela琀椀ng to the transfer of any assigned lands, or documents crea琀椀ng
any interest therein has been prohibited Sec琀椀on 5.
9. The Act exempts applicability of the Act to the assigned lands held on a mortgage by the State,
Central Government, and local authority, a co-opera琀椀ve society, a scheduled bank or such other
昀椀nancial ins琀椀tu琀椀on-owned, controlled or managed by a State or the Central Government (Sec琀椀on
6).
10. A penal provision is there in the Act in respect of persons who acquire any assigned lands in
contraven琀椀on of the provision of Sec琀椀on 3(2) of the Act with a punishment of imprisonment which
may extend to six months or with 昀椀ne which may extend to Rs. 2000 or with both. The person who
opposes or impedes the District Collector or any person authorised in taking possession of any
assign land to be punished with imprisonment which may extend to six months or with 昀椀ne which
may extend to Rs. 5000 or with both (Sec琀椀on 7).
11. No Court shall take cognizance of an o昀昀ence punishable under Sec琀椀on 7 of the Act except with the
previous sanc琀椀on of the District Collector [Sec琀椀on 7(3)].
12. The Act protects the ac琀椀ons taken by any person o昀케cer or authority for anything done in good faith
(Sec琀椀on 8).

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13. The Government has the power to make rules (Sec琀椀on 9).
14. The Act overrides other laws (Sec琀椀on 10).
15. The Government has the power to remove di昀케cul琀椀es (Sec琀椀on 11).
14. EXPLAIN THE EFFECTIVENESS OF A.P. LAND GRABBING (PROHIBITION) ACT, 1982.
Answer:
15. CULTIVATOR OF LAND AND HIS RIGHTS AND WHEN TERMINATION OF TENANCY CAN BE AFFECTED.
Answer: Tenants:
 As per Sec琀椀on 2(1)(v) of the Telangana Tenancy and Agricultural Lands Act, 1950, ‘tenant’ means
an Asami, shikmi who holds land on lease, and includes a person who is deemed to be a tenant
under the provisions of the Act.
 Sec琀椀on 5. Persons deemed to be tenants: A person lawfully cul琀椀va琀椀ng any land belonging to
another person shall be deemed to be a tenant if such land is not cul琀椀vated personally by the
landholder and if such person is not,-
(a) a member of the landholder‘s family, or
(b) a servant on wages payable in cash or kind, but not in crop share or a hired labourer cul琀椀va琀椀ng
the land under the personal supervision of the landholder or any member of the landholder‘s
family, or
(c) a mortgagee in possession.
Rights of Tenant: The following are some of the important rights of a tenant under the Act:
1. Right to hold the land in tenancy 琀椀ll the expiry of the period of the lease (Sec琀椀on 19): No tenancy
of land shall be terminated before the expira琀椀on of the period for which the land is leased or
deemed to be leased or by the tenant by the surrender of his rights to the landholder at least a
month before the commencement of the year, provided that such surrender is made by the tenant
in wri琀椀ng.
2. Right to not to be evicted from dwelling house (Sec琀椀on 20): If a tenant is in the occupa琀椀on of a
dwelling house on a site belonging to his landholder, such tenant shall not be evicted from such
dwelling house.
3. Right of pre-emp琀椀on: First priority right to purchase the site on which the tenant has built up a
dwelling house including house and site acquired by agricultural labourers or ar琀椀sans.
4. Right to trees planted by him: If a tenant has planted any trees on any land leased to him, he shall
be en琀椀tled to the produce and wood of such trees during the con琀椀nuance of his tenancy and shall
on the termina琀椀on of his tenancy be en琀椀tled to such compensa琀椀on for such trees as may be
determined by the Tahsildar.
5. Right to produce of naturally growing trees: A tenant shall during the con琀椀nuance of his tenancy
be en琀椀tled to two-thirds of the total produce of trees naturally growing on the land, the
landholder being en琀椀tled to one-third of the produce of such trees.
6. Right to recover expenses from the landholder regarding protected bounds under Sec琀椀on 26 of
the Act,
7. Right to the restora琀椀on of land if the landholder fails to serve no琀椀ce of termina琀椀on of tenancy on
the ground of destruc琀椀on or injury to the land.

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8. Right to relief against termina琀椀on of the tenancy for non-payment of rent: where a tenancy of
any land held by a tenant is terminated for non-payment of rent and the landholder 昀椀les any
proceeding to eject the tenant, the Tehsildar shall call upon the tenant to tender all the dues 琀椀ll
now and gives 90 days 琀椀me, if the tenant pays the amount within the 琀椀me, the Tehsildar pass an
order direc琀椀ng that the tenancy has not been terminated.
9. Right to receive a receipt for the amount of rent from the landholder.
10. Right to become a member of the co-opera琀椀ve farming society.
11. Right not to a琀琀ach or sell the land in a lease in the execu琀椀on of a decree or order of a Civil Court
(Sec琀椀on 31).
Termina琀椀on of Tenancy: Under Sec琀椀on 19 of the Act, a tenancy can be terminated either by a tenant or
by the landholder. Sec琀椀on 19 of the Act provides that:
1. A昀琀er the expira琀椀on of the tenancy period.
2. By the tenant by the surrender of his rights to the landholder at least a month before the
commencement of the year.
3. By the landholder, if the tenant has failed to pay the rent.
4. If the tenant has done any act which is destruc琀椀ve or permanently injurious to the land, the
landlord can terminate the tenancy.
5. If the tenant has sub-divided the land, the landlord can terminate the tenancy,
6. If the tenant has sub-let the land, the landlord can terminate the tenancy.
7. If the tenant has used the land for other than agriculture, the landlord can terminate the tenancy.
16. PARAMETERS FOR DETERMINATION OF PAYMENT OF COMPENSATION FOR THE LAND ACQUISITION.
Answer:
Acquisition Award
The new Act s琀椀pulates that the minimum compensa琀椀on is to be a mul琀椀ple of the total of the ascertained
market value, plus the value of the assets a琀琀ached to the property, plus a sola琀椀um equal to 100% of the
market value of the property including value of assets.
Under Sec琀椀on 23 of the Right to Fair Compensa琀椀on and Transparency in Land Acquisi琀椀on, Rehabilita琀椀on
and Rese琀琀lement Act, 2013 the Collector shall proceed to enquire into the objec琀椀ons which any person
interested has stated pursuant to a no琀椀ce given under Sec琀椀on 21 and into the respec琀椀ve interests of the
persons claiming the compensa琀椀on and rehabilita琀椀on and rese琀琀lement, shall make an award under his
hand of–
(a) the true area of the land;
(b) the compensa琀椀on as determined under Sec琀椀on 27 along with Rehabilita琀椀on and Rese琀琀lement Award
as determined under Sec琀椀on 31 and which in his opinion should be allowed for the land; and
(c) the appor琀椀onment of the compensa琀椀on among all the persons known or believed to be interested in
the land, or of whose claims, he has informa琀椀on, whether or not they have respec琀椀vely appeared before
him.
Period for Award:

Under Sec琀椀on 25 the Collector shall make an award within a period of 12 months from the date of
publica琀椀on of the declara琀椀on and if no award is made within that period, the en琀椀re proceedings for the
acquisi琀椀on of the land shall lapse.
Provided that the appropriate Government may take the decision to extend the period of 12 months if, in
its opinion, circumstances exist jus琀椀fying the same but such decision shall be recorded in wri琀椀ng and the
same shall be no琀椀昀椀ed and be uploaded on the website of the authority concerned.

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Determining Market Value:

The claimant will be en琀椀tled to the compensa琀椀on which is determined based on the market value of the
land determined as on the date of preliminary no琀椀昀椀ca琀椀on. The market value of the proposed land under
Sec琀椀on 26 to be acquired shall be set as the higher of:
 the minimum land value, if any, speci昀椀ed in the Indian Stamp Act, 1899 for the registra琀椀on of sale
deeds in the area, where the land is situated; or
 the average of the sale price for a similar type of land being acquired, ascertained from the highest
昀椀昀琀y per cent of the sale deeds registered during the preceding three years in the nearest village or
nearest vicinity of the land being acquired.; or
 the consented amount in case the land is acquired for private companies or public-private
partnership projects.
 The market value would be mul琀椀plied by a factor of, at least one to two 琀椀mes the market value
for land acquired in rural areas and at least one 琀椀mes the market value for land acquired in urban
areas.
Value of Things Attached:

The Collector in determining the market value of the building and other immovable property, assets
a琀琀ached or trees plants a琀琀ached to the land or building which are to be acquired, under Sec琀椀on 29 will
use the services of a competent engineer or any other experienced persons in the 昀椀eld of agriculture,
forestry, hor琀椀culture, sericulture, or any other 昀椀eld, as may be considered necessary by him.
Determination of Compensation:
The Collector having determined the market value of the land to be acquired shall under Sec琀椀on 27
calculate the total amount of compensa琀椀on to be paid to the landowner whose land has been acquired by
including all assets a琀琀ached to the land.
In determining the amount of compensa琀椀on to be awarded for land acquired under this Act, the
Collector shall under Sec琀椀on 28 take into considera琀椀on–
 the market value as determined under sec琀椀on 26 and the award amount in accordance with the
First and Second Schedules;
 the damage sustained by the person interested, because of the taking of any standing crops and
trees which may be on the land at the 琀椀me of the Collector’s taking possession thereof;
 the damage sustained by the person interested, at the 琀椀me of the Collector’s taking possession of
the land, by reason of severing such land from his other land;
 the damage sustained by the person interested, at the 琀椀me of the Collector’s taking possession of
the land, by reason of the acquisi琀椀on injuriously a昀昀ec琀椀ng his other property, movable or
immovable, in any other manner, or his earnings;
 in consequence of the acquisi琀椀on of the land by the Collector, the person interested is compelled
to change his residence or place of business, the reasonable expenses incidental to such change;
 the damage bona 昀椀de resul琀椀ng from diminu琀椀on of the pro昀椀ts of the land between the 琀椀me of the
publica琀椀on of the declara琀椀on under sec琀椀on 19 and the 琀椀me of the Collector’s taking possession of
the land: and
 any other ground which may be in the interest of equity, jus琀椀ce and bene昀椀cial to the a昀昀ected
families.
Award of Solatium:
The Collector a昀琀er having determined the total compensa琀椀on to be paid shall arrive at the 昀椀nal award,
under Sec琀椀on 30 impose a “Sola琀椀um” which is the amount equivalent to 100% of the compensa琀椀on
amount.

lOMoARcPSD|28401756
This sola琀椀um amount shall be in addi琀椀on to the compensa琀椀on payable to any person whose land has
been acquired. The Collector shall issue individual awards detailing the par琀椀culars of compensa琀椀on
payable and the details of payment of the compensa琀椀on as speci昀椀ed in the First Schedule.
In addi琀椀on to the market value of the land provided under sec琀椀on 26, the Collector shall award an
amount calculated at the rate of 12% per annum on such market value for the period commencing from
the date of the publica琀椀on of the no琀椀昀椀ca琀椀on of the Social Impact Assessment study under sec琀椀on 4(2), 琀椀ll
the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
CASES
17. CONSTITUTIONALITY OF THE LAND REFORMS LEGISLATION.

A Land Reforms Legisla琀椀on has included in the IX Schedule 2009. Can its validity be challenged on the
ground of viola琀椀on of fundamental rights? (July-19, Aug-18, & May-15).
ISSUE:
Can a land reform legisla琀椀on a昀琀er inclusion in 9th Schedule be challenged on its cons琀椀tu琀椀onality? No
With the inclusion of 31A, 31B and 9th Schedule to the Cons琀椀tu琀椀on by the Ist Amendment in the year
1951, a昀琀er the judgment in Kameshwar Singh vs. the State of Bihar, the land legisla琀椀ons of the various
States acquired Cons琀椀tu琀椀onality.
RULE:
Ar琀椀cle 31B in the Cons琀椀tu琀椀on of India 1949
31B. Valida琀椀on of certain Acts and Regula琀椀ons Without prejudice to the generality of the provisions
contained in Ar琀椀cle 31A, none of the Acts and Regula琀椀ons speci昀椀ed in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act,
Regula琀椀on or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any
provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regula琀椀ons shall, subject to the power of any competent Legislature to
repeal or amend it, con琀椀nue in force.
APPLICATION:
9th schedule along with Ar琀椀cle 31A and 31B was added in 1951 through the First Amendment to the
Indian Cons琀椀tu琀椀on. It was meant to enact some new laws which were important to transform India into a
more egalitarian society. The amendment was the need of the hour as Sri Kameshwar Singh, Maharaja of
Darbhanga challenged the validity of the Bihar Land Reforms Act, (in the case of Kameshwar Singh v. The
State of Bihar) government’s decision to classify Zamindars into di昀昀erent categories for procuring their
land was cri琀椀cized by the judiciary and it was a major setback as the Court stated that doing so was a
viola琀椀on of Art. 14 that guarantees equal protec琀椀on of laws to the ci琀椀zens as such classi昀椀ca琀椀on was
discriminatory.
To give cons琀椀tu琀椀onal validity to land reform laws, it had become necessary to bring the Amendment to
the Cons琀椀tu琀椀on. As a result, the Parliament inserted the following Ar琀椀cles and Schedule:
1. Ar琀椀cle 31-A by the Cons琀椀tu琀椀on (First Amendment) Act, 1951 with retrospec琀椀ve e昀昀ect,
2. Ar琀椀cle 31-B validates all the Acts enacted by the States for the purpose of land reforms and tenancy.
3. Schedule – IX incorporates all such Acts and validates them.
CONCLUSION:
Hence, when any land reform legisla琀椀on is kept under the 9th schedule of the Cons琀椀tu琀椀on, it does not
ma琀琀er whether it violates the fundamental rights of a person or not, it gets cons琀椀tu琀椀onality. This

lOMoARcPSD|28401756
provision restricted the rights of the judiciary and on other hands, increased the power of the legislature.
Hence, it started the con昀氀ict between the judiciary and the government.
18. PROCEDURE FOR ACQUIRING LAND UNDER THE LAND ACQUISITION ACT, 2013 (FOR PUBLIC PURPOSE).
A. The Government of Telangana State proposed to acquire wet agricultural lands from farmers in
order to allot those lands to the Airport. A farmer wants to challenge it. Advise him. (July-2019).
B. ‘A’, the owner of 3 acres agricultural land objected to the land acquisi琀椀on taken by government
authori琀椀es that his livelihood would be e昀昀ected and he had no other means. Can he succeed
against the government? Decide. (May-2017).
C. State Government acquired an agricultural land belonging to Zamindar (private person) to
construct a hospital. Zamindar wants to challenge it in the Court of Law. Discuss its validity.
(May-2015).
D. The Government issued a Sec琀椀on 4 no琀椀昀椀ca琀椀on for acquisi琀椀on of A’s land under the Land
Acquisi琀椀on. However, the objec琀椀ons raised against such acquisi琀椀on proposal were not considered
by the Land Acquisi琀椀on O昀케cer who issued a declara琀椀on of acquisi琀椀on. Explain the remedies
available to ‘A’. (June-2014).
ISSUE:
Is the land acquisi琀椀on for the airport comes under ‘public purpose’? Yes.
Can the Government take acquire wetland? Yes.
RULE:
Rese琀琀lement Act, 2013, the provisions of this Act rela琀椀ng to land acquisi琀椀on, compensa琀椀on,
rehabilita琀椀on and rese琀琀lement, shall apply, when the appropriate Government acquires land for its own
use, hold and control, including for Public Sector Undertakings and for a public purpose.
Sec琀椀on 10(1) Irrigated mul琀椀-cropped land shall not be acquired under this Act.
Provided that the provisions of this sec琀椀on shall not apply in the case of projects that are linear in
nature such as those rela琀椀ng to railways, highways, major district roads, irriga琀椀on canals, airports etc..
APPLICATION:
In Maheswar Bhara琀椀 v State of Assam, it has been observed that the expression ‘public purpose’ has been
interpreted to include ‘a purpose i.e. an object or aim, in which the general interest of the community, as
0pposed to the par琀椀cular interest of individuals, is directly and vitally concerned. All that is necessary is
that it should serve the general interest of the community.
CONCLUSION:
In the given case the acquisi琀椀on is for the airport and which is a public purpose hence the acquisi琀椀on is
lawful.
19. ACQUIRING PRIVATE LAND FOR A FACTORY OF A MNC/SEZ.

A. A private land was acquired by the Government for establishment of a factory by a mul琀椀na琀椀onal
corpora琀椀on. Is such acquisi琀椀on valid? Discuss (June-2014).
B. The Government of A.P. issued no琀椀昀椀ca琀椀on for acquisi琀椀on of agricultural land for construc琀椀on of
factory by a foreign company. The local poli琀椀cal leaders raised objec琀椀on. Discuss. (July-2012).
C. The Government of A.P. acquired a private land for the establishment of a Special Economic Zone
(SEZ) by a well-known business group. Can that purpose be considered as Public Purpose? (Aug-
2013).
ISSUE;

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Can a private land be acquired for private purpose? Yes.
RULE:
Rese琀琀lement Act, 2013, provisions of this Act rela琀椀ng to land acquisi琀椀on, consent, compensa琀椀on,
rehabilita琀椀on and rese琀琀lement, shall also apply, when the appropriate Government acquires land for the
following purposes, namely:--
(a) for public private partnership projects, where the ownership of the land con琀椀nues to vest with the
Government, for public purpose as de昀椀ned in sub-sec琀椀on (1);
(b) for private companies for public purpose, as de昀椀ned in sub-sec琀椀on (1):
Provided that in the case of acquisi琀椀on for
(i) private companies, the prior consent of at least eighty per cent, of those a昀昀ected families, as de昀椀ned
in sub-clauses (i) and (v) of clause (c) of sec琀椀on 3; and
(ii) public private partnership projects, the prior consent of at least seventy per cent. of those a昀昀ected
families, as de昀椀ned in sub-clauses (i) and (v) of clause (c) of sec琀椀on 3,
shall be obtained through a process as may be prescribed by the appropriate Government:
Provided further that the process of obtaining the consent shall be carried out along with the Social
Impact Assessment study referred to in sec琀椀on 4.
APPLICATION:
 The term “Private Company” was changed to “Private En琀椀ty” to encompass other forms of
companies like proprietorship, partnership, corpora琀椀on, non-pro昀椀t organisa琀椀ons and other non-
governmental en琀椀琀椀es.
 The Consent of 80% of land-owners concerned was needed for acquiring land for private projects
and 70% of land-owners for public-private projects (P.P.P).
CONCLUSION:
In the given case the private land can be acquired for establishment of a private factory and the consent of
80% landholders is required against 70% for a public purpose.
20. MORTGAGE OF ASSIGNED LAND/SELLING OF ASSIGNED LAND.

A. The Government of A.P. has given 2 acres land adjacent to the city for the landless agricultural
poor for farming. The farmer converted that land into house sites. Is it valid? (May-2015).
B. ‘A’, a landless poor was assigned two acres of agricultural land by the government. He wants to
sell one acre out of it for performing the marriage of his daughter. Can he do it legally? Explain.
(June-2014).
C. An assigned land was mortgaged by the assignee to raise loan for personal purpose. Is such
mortgage valid? (Aug-2013).
D. The Government has given 1 acre of land adjacent to the city for the landless agricultural poor for
farming. The farmer converted that land into house sites. Is it valid? (July-2012).
ISSUE:
Can assigned land/house sites be sold? No, the sale is null and void.
RULE:
As per Section 2(1) of the Telangana Assigned Lands (Prohibi琀椀on of Transfers) Act, 1977, “assigned
lands” means lands assigned by the Government to the landless poor persons under the rules for the 琀椀me
being in force, subject to the condi琀椀on of non-aliena琀椀on and includes lands allo琀琀ed or transferred to
landless poor persons under the relevant law for the 琀椀me being in force rela琀椀ng to land ceilings; and the
word “assigned” shall be construed accordingly;

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Section 2(6) “transfer” means any sale, gi昀琀, exchange, mortgage with or without possession, lease or
any other transac琀椀on with assigned lands, not being a testamentary disposi琀椀on and includes a charge on
such property or a contract rela琀椀ng to assigned lands in respect of such sale, gi昀琀, exchange, mortgage,
lease or other transac琀椀on.
Sec琀椀on 3(1) Where, before or a昀琀er the commencement of this Act any land has been assigned by the
Government to a landless poor person for purposes of cul琀椀va琀椀on or as a house-site then, notwithstanding
anything to the contrary in any other law for the 琀椀me being in force or in the deed of transfer or other
document rela琀椀ng to such land, it shall not be transferred and shall be deemed never to have been
transferred; and accordingly, no right or 琀椀tle in such assigned land shall vest in any person acquiring the
land by such transfer.
(2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned
land, either by purchase, gi昀琀, lease, mortgage, exchange or otherwise.
(3) Any transfer or acquisi琀椀on made in contraven琀椀on of the provisions of sub-sec琀椀on (1) or sub-sec琀椀on (2)
shall be deemed to be null and void.
APPLICATION:
In G.Surya Kumari v. Mandal Revenue O昀케cer, it has been observed that the de昀椀ni琀椀on of ‘transfer’ is so
sweeping that it takes all kinds of transac琀椀on of sale, gi昀琀, exchange, even a simple mortgage without
possession, lease or any other transac琀椀on with assigned lands including that of charge on such property or
a contract rela琀椀ng to the sale, gi昀琀, exchange, mortgage, lease or other transac琀椀ons. Nothing is le昀琀 out of
this de昀椀ni琀椀on of transfer excep琀椀ng testamentary disposi琀椀on i.e., a will.
CONCLUSION:
Any transfer of assigned land is null and void and a琀琀racts penal provisions as below
Sec琀椀on 7(1) of the Act, Whoever acquires any assigned land in contraven琀椀on of the provisions of sub-
sec琀椀on (2) of sec琀椀on 3 shall be punished with imprisonment which may extend to six months or with 昀椀ne
which may extend to two thousand rupees or with both.
In the given case conver琀椀ng the assigned land into house sites is a contraven琀椀on of the provision of the
said Act and null and void, and transferee will not get any rights on that transfer.
21. LAND GRABBING ACT.

A. A poli琀椀cal party occupied lands belonging to the government and now wants to construct houses
for the weaker sec琀椀ons and distribute them free of cost. The police have registered a case against
the party for land grabbing. Decide (May-2017, May-2016).
B. ‘A’ encroached upon the neighbouring land belonging to ‘B’. Can ‘B’ ini琀椀ate proceedings under the
A.P. Land (Prohibi琀椀on) Act against ‘A’? (Aug-2013).
C. The Government of A.P. issued a no琀椀ce for evic琀椀on for occupying wasteland. Is the no琀椀ce valid?
(July-2012).
ISSUE:
Can a poli琀椀cal party or any individual grab the land of Government/private? No, no one is allowed to grab
the land of others including Government, even though it is for distribu琀椀ng to weaker sec琀椀ons.
RULE:
As per the Telangana Land Grabbing (Prohibi琀椀on) Act, 1982:
 Sec琀椀on 2(d) "land grabber" means a person or a group of persons who commits land grabbing and
includes any person who gives 昀椀nancial aid to any person for taking illegal possession of lands or
for construc琀椀on of unauthorised structures thereon, or who collects or a琀琀empts to collect from
any occupiers of such lands rent, compensa琀椀on and other charges by criminal in琀椀mida琀椀on, or who
abets the doing of any of the above-men琀椀oned acts; and also includes the successors in interest.

lOMoARcPSD|28401756
 Sec琀椀on 2(e) "land grabbing" means every ac琀椀vity of grabbing of any land (whether belonging to
the Government, a local authority, a religious or charitable ins琀椀tu琀椀on or endowment, including a
wakf, or any other private person) by a person or group of persons, without any lawful
en琀椀tlement and with a view to illegally taking possession of such lands, or enter into or create
illegal tenancies or lease and licences agreements or any other illegal agreements in respect of
such lands, or to construct unauthorised structures thereon for sale or hire, or give such lands to
any person on rental or lease and licence basis for construc琀椀on, or use and occupa琀椀on, of
unauthorised structures; and the term "to grab land" shall be construed accordingly.
APPLICATION:
In Konda Lakshmana Bapuji v. Government of Andhra Pradesh, the Supreme Court has observed that
“land grabber” is:
1. A person who has taken unauthorisedly, unfairly, greedily, snatched forcibly, violently or
unscrupulously any land belonging to government or a local authority, a religious or charitable
ins琀椀tu琀椀on or endowment, including a wakf or any other private person.
2. Without any lawful en琀椀tlement,
3. With a view to illegally taking possession of such lands, or enter or create illegal tenancies or lease
and licences agreements, or any other illegal agreements in respect of such lands or to construct
unauthorised structures thereon for sale or hire, or give such lands to any person on rental or
lease and licence basis for construc琀椀on, or use and occupa琀椀on of unauthorised structures,
4. A person who has given 昀椀nancial aid to any person for taking illegal possession of lands or for
construc琀椀on of unauthorised structures thereon,
5. A person who is collec琀椀ng or a琀琀emp琀椀ng to collect from any occupiers of such lands rent,
compensa琀椀on and other charges by criminal inten琀椀on,
6. A person who is abe琀�ng the doing of any of the above-men琀椀oned acts,
7. A person who is the successor in interest of any such person.
CONCLUSION:
As discussed and de昀椀ned above, land grabbing in any form is illegal and the given case also falls under
land grabbing and punishable under the below stated provision:
Prohibi琀椀on of land grabbing:-
Sec琀椀on 4(1) No person shall commit or cause to be commi琀琀ed land grabbing.
(2) Any person who, on or a昀琀er the commencement of this Act, con琀椀nues to be in occupa琀椀on, otherwise
than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or
charitable ins琀椀tu琀椀on or endowment including a wakf, or other private person, shall be guilty of an o昀昀ence
under this Act.
(3) Whoever contravenes the provisions of sub-sec琀椀on (1) or sub-sec琀椀on (2) shall on convic琀椀on, be
punished with imprisonment for a term which shall not be less than six months but which may extend to
昀椀ve years, and with 昀椀ne which may extend to 昀椀ve thousand rupees.
22. A TRIBAL SOLD HIS LAND TO A NON-TRIBAL.

A. A S.T. person intends to transfer his land situated in a region not declared as a scheduled area.
Can he transfer the said land by sale to non-tribal person? (Aug-2018).
B. ‘X’ a non-tribal purchased land from ‘Y’ a tribal and registered the same in his name. ‘Y’ wanted to
regain his land. Can he succeed? Decide (May-2017 & May-2016).
C. A scheduled tribe person intends to transfer his land situated in a region not declared as a
scheduled area. Can he transfer the said land by sale to non-tribal person? (May-2015).
ISSUE:
Can an S.T. person sell his land which is not situated in a Scheduled Area to a non-S.T.? Yes, he can.

lOMoARcPSD|28401756
Is there any bar on transfer of land from an S.T. person to non-S.T. person, when the land is situated in a
non-scheduled area? No there is no bar under any law.
RULE:
As per Sec琀椀on 3 of the Telangana Scheduled Areas Land Transfer Regula琀椀on, 1959 Transfer of immovable
property by a member of a Scheduled Tribe. –
(1) (a) Notwithstanding anything in any enactment, rule or law in force in the Agency tracts any
transfer of immovable property situated in the Agency tracts by a person. Whether or not such
person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is
made in favour of person, who is a member of a Scheduled Tribe or a society registered or deemed
to be registered under the Andhra Pradesh Co-opera琀椀ve Socie琀椀es Act, 1964 (Act7 of 1964) which is
composed solely of members of the Scheduled Tribes.
As per Sec琀椀on 5 of the Transfer of Property Act, 1882, “Transfer of property” de昀椀ned.— an act by which a
living person conveys property, in present or in future, to one or more other living persons, or to himself,
or to himself and one or more other living persons; and “to transfer property” is to perform such act. In
this sec琀椀on “living person” includes a company or associa琀椀on or body of individuals, whether
incorporated or not, but nothing herein contained shall a昀昀ect any law for the 琀椀me being in force rela琀椀ng
to transfer of property to or by companies, associa琀椀ons or bodies of individuals.
APPLICATION:
As per Sec琀椀on 3 of the Telangana Scheduled Areas Land Transfer Regula琀椀on, 1959 Act, any transfer of
immovable property situated in the Agency tracts belonging to a member of the scheduled tribe, shall be
absolutely null and void. The Act applies to the land/property which is situated or located in Agency
Tracts in the Districts of Adilabad, Warangal, Khammam, and Mahbubnagar. As the lands are in a region
not declared as a scheduled area.
CONCLUSION:
In the given case ‘A’, scheduled tribe person can transfer his land to a non-tribal person by sale and the
transfer is valid because the land is not situated in a scheduled area declared by the Government. And we
know that all the rules and regula琀椀ons s琀椀pulated in the Indian Contract Act, 1872 and the Transfer of
Property Act, 1882 apply to all the immovable property transac琀椀ons.
*****

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Public Interna琀椀onal Law
LLB 4 th SEMESTER
PUBLIC INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW

lOMoARcPSD|28401756
IMPORTANT SHORT QUESTIONS

SL
NO
1 MONISM
2 "A STATE IS AND BECOMES AN INTERNATIONAL PERSON THROUGH RECOGNITION ONLY
AND EXCLUSIVELY" by Oppenheim
3 NATIONALITY
4 EXTRADITION (IMP - DOUBLE CRIMINALITY)
5 FREEDOM OF HIGH SEAS
6 OUTERSPACE TREATY, 1967
7 GIVE AN ACCOUNT OF THE SECURITY COUNCIL AND VETO AND DOUBLE VETO
8 WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

9 INTERNATIONAL LAW IS NOT LAW IN THE STRICT SENSE (INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE)
10 RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
11 WHAT IS STATE SUCCESSION? EXPLAIN DIFFERENT KINDS OF STATE SUCCESSION
12 MODES OF ACQUIRING STATE TERRITORY
13 EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS (IMMUNITY FROM
THE LOCAL JURISDICTION IMPORTANT)
14 DIFFERENTIATE BETWEEN HIGH SEAS, TERRITORIAL WATERS, CONTIGUOUS ZONE AND
CONTINENTAL SHELF
15 EXPLAIN THE PURPOSE AND PRINCIPLES OF UNITED NATIONS
IMPORTANT CASES
16 DE FACTO AND DE-JURE RECOGNITION - BANK OF ETHIOPIA v. NATIONAL BANK OF

EGYPT AND LIGUORI
17 MOB VIOLENCE - INDIRECT STATE RESPONSIBILITY
18 EXTRADITION
19 DIPLOMATIC ASYLUM - COLOMBIA V PERU
20 EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS
21 THE INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS, 1971
PAPER-II: PUBLIC INTERNATIONAL LAW SYLLABUS

lOMoARcPSD|28401756
Unit-I: De昀椀ni琀椀on, Nature, Scope and Importance of Interna琀椀onal Law — Rela琀椀on of

Interna琀椀onal Law to Municipal Law — Sources of Interna琀椀onal Law — Codi昀椀ca琀椀on.
Unit-II: State Recogni琀椀on — State Succession — Responsibility of States for Interna琀椀onal

delinquencies — State Territory — Modes of acquiring State Territory
Unit-III: Posi琀椀on of Individual in Interna琀椀onal Law — Na琀椀onality — Extradi琀椀on — Asylum

— Privileges and Immuni琀椀es of Diploma琀椀c Envoys — Trea琀椀es – Forma琀椀on of Trea琀椀es -
Modes of Consent, Reserva琀椀on and termina琀椀on.
Unit-IV: The Legal Regime of the Seas – Evolu琀椀on of the Law of the Sea – Freedoms of the
High Seas – Common Heritage of Mankind – United Na琀椀ons Conven琀椀on on the Law of the
Seas – Legal Regime of Airspace – Important Conven琀椀ons rela琀椀ng to Airspace – Paris,
Havana, Warsaw and Chicago Conven琀椀ons – Five Freedoms of Air – Legal Regime of Outer
space – Important Conven琀椀ons such as Outer space Treaty, Agreement on Rescue and
Return of Astronauts, Liability Conven琀椀on, and Agreement on Registra琀椀on of Space
objects, Moon Treaty - Uni space.
Unit-V: Interna琀椀onal Organiza琀椀ons — League of Na琀椀ons and United Na琀椀ons —

Interna琀椀onal Court of Jus琀椀ce —Interna琀椀onal Criminal Court - Specialized agencies of the
UN — WHO, UNESCO, ILO, IMF and WTO.
Suggested Readings: 1. J.G. Starke: Introduc琀椀on to Interna琀椀onal Law, Aditya Books, 10th
Edi琀椀on, 1989. 2. J.I. Brierly: The Law of Na琀椀ons, Oxford Publishers, London. 3. Ian
Brownlie: Principles of Public Interna琀椀onal Law, Oxford Publishers, London. 4. S.K.
Kapoor, Public Interna琀椀onal Law, Central Law Agencies, Allahabad. 5. H.O. Agarwal,
Interna琀椀onal Law and Human Rights, Central Law Publica琀椀ons, Allahabad. 6 .S.K. Verma,
An Introduc琀椀on to Public Interna琀椀onal Law, Pren琀椀ce Hall of India.

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SHORT ANSWERS
1. MONISM.
ANSWER: Monis琀椀c theory was pronounced in the Eighteenth Century. It was put forward by two
German scholars Moser and Martens. However, it was not un琀椀l the nineteenth century that their
concepts were elaborated into a full-昀氀edged doctrine. According to this doctrine, there exists only
one set of the legal system, i.e., the domes琀椀c legal order. It has been denied by the exponents of
this theory that Interna琀椀onal Law is a dis琀椀nct and autonomous body of law. It followed that there
was obviously no need for interna琀椀onal rules to be incorporated into municipal legisla琀椀on; since
they have been made by the States themselves. The monis琀椀c doctrine was later developed in the
early twen琀椀eth century by the Austrian jurist Hans Kelsen.
According to monis琀椀c theory, municipal law, as well as Interna琀椀onal Law, are parts of one
universal legal system serving the needs of the human community in one way or the other. In the
opinion of its theorists, the two together form a single legal order. Interna琀椀onal Law is therefore
indis琀椀nguishable from the internal law of States and is of signi昀椀cance only as part of the universal
legal order.
In a pure monist state, interna琀椀onal law does not need to be translated into na琀椀onal law. It is
simply incorporated and a昀昀ects automa琀椀cally in na琀椀onal or domes琀椀c laws. The act of ra琀椀fying an
interna琀椀onal treaty immediately incorporates the law into na琀椀onal law, and customary
interna琀椀onal law is treated as part of na琀椀onal law as well. Interna琀椀onal law can be directly
applied by a na琀椀onal judge and can be directly invoked by ci琀椀zens, just as if it were na琀椀onal law. A
judge can declare a na琀椀onal rule invalid if it contradicts interna琀椀onal rules because, in some
states, interna琀椀onal rules have priority. In other states, like in Germany, trea琀椀es have the same
e昀昀ect as legisla琀椀on, and by the principle of Lex posterior derogat priori ("Later law removes the
earlier"), only take precedence over na琀椀onal legisla琀椀on enacted before their ra琀椀昀椀ca琀椀on.
Features of Monism:
1. The monis琀椀c theory was pronounced in the Eighteenth century,
2. Austrian jurist Hans Kelsen has developed this theory in the early twen琀椀eth century.
3. According to Monism, there exists only one set of the legal system i.e., the domes琀椀c legal
order.
4. Interna琀椀onal law and Municipal law are the same.
5. Once the Interna琀椀onal Rule is passed, the na琀椀on follows it without any municipal law.
6. In case of contradic琀椀on between municipal law and interna琀椀onal law, interna琀椀onal law will
prevail over municipal law.
2. "A STATE IS AND BECOMES AN INTERNATIONAL PERSON THROUGH RECOGNITION ONLY AND
EXCLUSIVELY" by Oppenheim.
Answer: What is the recognition of State?
1) Introduction:
In the world number of states is not 昀椀xed and it is ever-changing. Due to passage of 琀椀me,
old State disappears or unites with other states to form a new state or disintegrate and split into
several new states; or former colonial or vassal territories may, by a process of emancipa琀椀on
(free) themselves and a琀琀ain statehood. It is the process by which a poli琀椀cal community acquires
personality in Interna琀椀onal Law by becoming a member of the family of Na琀椀ons. Only by
Recogni琀椀on State becomes a par琀椀cipant.
2) Requirements of Statehood
There is no 昀椀xed or commonly agreed that what is the minimum requirement of Statehood

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for the existence of State. According to Ar琀椀cle 1 of the Montevideo Conven琀椀on, the minimum
requirements of Statehood are as follows:
(1) Permanent Popula琀椀on
(2) Well Organised Government
(3) De昀椀nite or Fixed Territory
(4) Capacity to enter into a rela琀椀onship or an agreement with other States.
According to Kelsen, a community to be recognised as an interna琀椀onal person must ful昀椀l

some condi琀椀ons such as the community must be a poli琀椀cal organiza琀椀on, it should have control
over a de昀椀nite territory, this control tends towards permanence and community thus cons琀椀tuted
must be independent. But Interna琀椀onal Law does not provide as to how those essen琀椀al condi琀椀ons
are to be determined.
3) Definitions of Recognition:
Recogni琀椀on can be de昀椀ned as a formal acknowledgement by an exis琀椀ng member of the

interna琀椀onal community of the interna琀椀onal personality of a State or poli琀椀cal group not hitherto
maintaining o昀케cial rela琀椀ons with it
a) J. Jessup:
According to J. Jessup, it is a poli琀椀cal community acquiring or sa琀椀sfying the requirements of
statehood, qualifying itself to be the member of the interna琀椀onal community.
b) Professor Oppenheim:
"In recognising state as a member of the Interna琀椀onal community the exis琀椀ng state declares
that in their opinion the new state ful昀椀ls the condi琀椀ons of statehood as required by interna琀椀onal
law.
Oppenheim, who is known as the Father of Interna琀椀onal Law, gave the famous theory of
recogni琀椀on in interna琀椀onal law. The given statement by him has given rise to two theories of
recogni琀椀on in interna琀椀onal law-cons琀椀tu琀椀ve theory and declaratory theory. Recogni琀椀on in his
terms refers to the acknowledgement of one State by another State. However, interna琀椀onal law is
so昀琀 law and thus does not impose obliga琀椀ons on the States. The cons琀椀tu琀椀ve theory has been
adopted by Oppenheim himself and states that a State can come into existence and becomes an
interna琀椀onal person only through recogni琀椀on by other States. This theory was applied widely
during the nineteenth century for coming to a consensus on acceptance of States and was used
last in 1973 to recognize East Germany by the Western powers. The declaratory theory, on the
other hand, states that any State that ful昀椀lls the criteria of statehood as per the poli琀椀cal de昀椀ni琀椀on
is a State. The need for recogni琀椀on is only an a昀케rma琀椀on of exis琀椀ng poli琀椀cal territory. It is debated
to remove the element of discre琀椀on present in the cons琀椀tu琀椀ve theory. But there exists a
substan琀椀al debate on the two theories of recogni琀椀on given the ambiguity in their de昀椀ni琀椀ons.
There are two main Theories of Recogni琀椀on. Viz Cons琀椀tu琀椀ve theory and Declaratory Theory
or Eviden琀椀ary theory.
1) Cons琀椀tu琀椀ve Theory:
Recogni琀椀on is a process whereby a State is cons琀椀tuted; hence it is called as a cons琀椀tu琀椀ve

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theory. Hegel is a pioneer of this theory. Which is supported and propounded by Anzilo琀�,
Holland and Oppenheim.
According to Anzilo琀�, since the rules of Interna琀椀onal law have grown up by the common
consent of the States, is a subject of interna琀椀onal law comes into being with the conclusion of the
昀椀rst agreement as expressed by the Treaty of recogni琀椀on. Such recogni琀椀on is reciprocal and
cons琀椀tu琀椀ve, crea琀椀ng rights and obliga琀椀ons which did not exist before.
According to Holland, a State cannot be said to have a琀琀ained maturity unless it is stamped
with the seal of recogni琀椀on, which is indispensable to the full enjoyment of rights which it
connotes.
According to Oppenheim, a State is and becomes an interna琀椀onal person through recogni琀椀on

only and exclusively. According to the Cons琀椀tu琀椀ve theory, statehood and par琀椀cipa琀椀on in the
interna琀椀onal legal order are a琀琀ained by poli琀椀cal group only in so far as they are recognised by
established State. According to this theory, recogni琀椀on gives the rights and du琀椀es to recognized
States under interna琀椀onal law. The recogni琀椀on of Poland and Czechoslovakia through the
instrumentality of the Treaty and Versailles lends support to the cons琀椀tu琀椀ve theory of
recogni琀椀on.
Cri琀椀cism -Jurists have cri琀椀cized the Cons琀椀tu琀椀ve theory. The view of Judge Lauterpacht that there
is a legal duty on the part of the exis琀椀ng States to recognize any community that has in fact
acquired the characteris琀椀cs of statehood, does not seem to be correct. In prac琀椀ce, the State does
not accept any such obliga琀椀on. "The prac琀椀ce indicates, however, that although established States
normally recognize new States and new governments that in fact exist, they have not consented
to law norms that obligate them to do so. ”Besides this, the Cons琀椀tu琀椀ve theory presents several
other serious di昀케cul琀椀es. According to this theory, if a State is not recognized it can have neither
duty nor rights under interna琀椀onal law. This is a very absurd sugges琀椀on. If we accept this
proposi琀椀on, it will create di昀케cul琀椀es in the case of a new State which is recognized by some States
but not recognized by others. The examples of China and Bangladesh can be cited in this
connec琀椀on. China was not recognized by America and other Western countries for a number of
years although China possessed all the essen琀椀al a琀琀ributes of the State. But to assert that China,
therefore, did not have rights and du琀椀es under interna琀椀onal law would be an absurd proposi琀椀on.
Similarly, Bangladesh was not recognised for some 琀椀me by China, Pakistan, Albania, etc.
However, in support of the cons琀椀tu琀椀ve theory, it must be admi琀琀ed that once a state is recognized
it acquires status and is recognized as such by the municipal courts of the recognising state.
2) Declaratory theory or Eviden琀椀ary Theory:

The declaratory theory is also called as an eviden琀椀ary theory. The chief exponents of this
theory are Professor Hall, Wagner, Pi琀琀 Cobbe琀琀, and Brierly. This theory requires evidence/
declara琀椀on. It is some sort of con昀椀rma琀椀on on the already exis琀椀ng State. It is exactly the reverse
process of cons琀椀tu琀椀ve theory for example 昀椀rst statehood then recogni琀椀on.
According to Professor Hall "the State, which is theore琀椀cally a poli琀椀cal is organized

Community, enters as of right into the family of States and must be treated according to the law as
soon as it can show the marks of statehood no state has a right to withhold recogni琀椀on when it
was being earned.
According to Brierly the gran琀椀ng of recogni琀椀on to a new state it is not a 'cons琀椀tu琀椀ve' but a
'declaratory' act it does not bring into legal existence a State which did not exist before. A State
may exist without being recognized, and if it does exist in fact then, whether or not it has been
formally recognized by other states, It has a right to be treated by them as a State.

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Conclusion
Recogni琀椀on is the status of Poli琀椀cal Community. Cons琀椀tu琀椀ve and declara琀椀ve are the two
main theories of recogni琀椀on but none of them is perfect. Each theory has its merits and demerits.
There are certain legal e昀昀ects of recogni琀椀on and also the consequences of non-recogni琀椀on.
3. NATIONALITY.
Answer: Definition:
Individuals of a par琀椀cular na琀椀on are supposed to owe allegiance to their States. Such
individuals who owe permanent allegiance to a State are known as na琀椀onals of a State.
Na琀椀onality may, therefore, be de昀椀ned as the ‘status of a natural person who is a琀琀ached to a State
by the 琀椀e of allegiance’. Thus, the term ‘na琀椀onality’ signi昀椀es the legal 琀椀e between individuals and
the State. Oppenheim has very rightly stated that the na琀椀onality of an individual is his quality of
being a subject of a certain State.
Na琀椀onality is the medium through which an individual can enjoy the bene昀椀ts of Interna琀椀onal
Law. A State exercises jurisdic琀椀on over its na琀椀onals, travelling or residing abroad, remain under
its personal supremacy. Interna琀椀onal Law permits the exercise of such jurisdic琀椀on and sets the
limits within which it can be exercised. In Mavromma琀椀s case, the Permanent Court of
Interna琀椀onal Jus琀椀ce observed that ‘It is an elementary principle of Interna琀椀onal Law that a State
is en琀椀tled to protect its subjects when injured by acts contrary to Interna琀椀onal Law commi琀琀ed by
another State, from whom they have been unable to obtain sa琀椀sfac琀椀on through ordinary
channels. The right of protec琀椀on extends to the property of the na琀椀onals as well. Further, if a
na琀椀onal of a State is expelled from a foreign State, it becomes the duty of the former to receive
back its na琀椀onals. The refusal to receive and the expulsion of a State’s own na琀椀onals are
inconsistent with Interna琀椀onal Law as they may involve a burden on other States which they are
not bound to undertake. Thus, in dealing with any interna琀椀onal legal problems involving an
individual, it is always essen琀椀al to know his na琀椀onality, the legal bond which 琀椀es him personally
to a given State for many purposes.
The international importance of Nationality

The laws rela琀椀ng to na琀椀onality have the following importance under Interna琀椀onal law:
(1) The protec琀椀on of the rights of diploma琀椀c agents is the consequence of na琀椀onality.
(2) If a State does not prevent o昀昀ences of its na琀椀onals or allows them to commit such harmful acts
as might a昀昀ect other States, then that State shall be responsible for the acts commi琀琀ed by such a
person.
(3) Ordinarily, States do not refuse to take the persons of their na琀椀onality. By na琀椀onality, we may
mean loyalty towards a par琀椀cular State.
(4) Na琀椀onality may also mean that the na琀椀onal of a State may be compelled to do military service
for the State.
(5) Yet another e昀昀ect of na琀椀onality is that the State can refuse to extradite its own na琀椀onals.
(6) According to the prac琀椀ce of a large number of States during the war, enemy character is
determined on the basis of na琀椀onality.
(7) States frequently exercise jurisdic琀椀on over criminal and other ma琀琀ers over the persons of their
na琀椀onality.
Modes of Acquisi琀椀on of Na琀椀onality
A person may acquire the na琀椀onality of a State in accordance with the rules of municipal law. It
implies that municipal law determines as to who may be a na琀椀onal of a par琀椀cular State. Modes of
acquisi琀椀on of na琀椀onality are therefore not uniform. They di昀昀er from State to State. Following are
the modes by which na琀椀onality may be acquired:-

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1. By Birth: Na琀椀onality is conferred to a person by many States on the basis of birth. All
those persons whose birth takes place within territorial limits of a State acquire the
na琀椀onality of that State. The above principle is called jus soli. The Indian Ci琀椀zenship Act
of 1955 under Sec琀椀on 3 had provided na琀椀onality on the basis of birth. Merely birth in the
territory of India, even though both the parents are foreigners, would make a person an
Indian ci琀椀zen.
2. By Descent: Na琀椀onality of a State may also be acquired by a person on the basis of the
na琀椀onality of either parent. Thus a child may become a na琀椀onal of that State of which his
parents are na琀椀onals. This principle is known as jus sanguinis. Sec琀椀on 4 of the Indian
Ci琀椀zenship Act of 1955 provides that a person may be an Indian na琀椀onal on the basis of
the principle of jus sanguinis.
3. By Naturaliza琀椀on: A person may acquire na琀椀onality through naturaliza琀椀on in di昀昀erent
ways. They are: through marriage, legi琀椀ma琀椀on, op琀椀on, acquisi琀椀on of domicile,
appointment as Government o昀케cial and grant of applica琀椀on. Adop琀椀on of children by
parents who are na琀椀onals of the other States also en琀椀tles the children to acquire the
na琀椀onality of his parents.
4. By Resump琀椀on: A person, who has lost his na琀椀onality by naturaliza琀椀on or by any other
reasons, may acquire the na琀椀onality of the same State again. The acquisi琀椀on of this kind
is called reintegra琀椀on or resump琀椀on.
5. By Subjuga琀椀on (the act of defea琀椀ng country and ruling them): A person may acquire
na琀椀onality through subjuga琀椀on a昀琀er the conquest. When a part of the territory of a State
or a State itself is subjugated by another State, all the inhabitants of the territory become
the na琀椀onals of the la琀琀er State.
6. By Cession: when a part of the territory of a State is ceded to another State, all the
na琀椀onals of the former acquire the na琀椀onality of the la琀琀er State.
7. By Op琀椀on: When a State is par琀椀琀椀oned into two or more States, the na琀椀onals of the
former State have an op琀椀on to become the na琀椀onals of any of the successor States. The
same principle applies in the case of an exchange of territory.
8. By Registra琀椀on: A person may acquire the na琀椀onality of a State through registra琀椀on. The
process of registra琀椀on may be di昀昀erent from one state to another depending upon the
laws of that State.
Modes of Loss of Na琀椀onality: A person may lose the na琀椀onality of a State in many ways. They are
as follows:
1. By Release: Some States give their ci琀椀zens the right to ask to be released from their
na琀椀onality. Release occurs only when an applica琀椀on is made to that e昀昀ect, and if it has
been accepted by the State concerned.
2. By Depriva琀椀on: A na琀椀onal of a State may be deprived of na琀椀onality in case of certain
happenings. Legisla琀椀on of many States recognizes numerous grounds of depriva琀椀on of
na琀椀onality. For instance, if a ci琀椀zen enters into foreign civil or military service without
permission, he may be deprived of his na琀椀onality.
3. By Renuncia琀椀on: A person may renounce his na琀椀onality of a State. The ques琀椀on of
renuncia琀椀on of na琀椀onality arises when a person acquires it of more than one State.
4. By Subs琀椀tu琀椀on: A person may lose the na琀椀onality of a State when he acquires na琀椀onality
in some other State by naturaliza琀椀on.
5. By Expira琀椀on: A person may lose the na琀椀onality of a State by expira琀椀on. For instance,
some State has provided by legisla琀椀on that ci琀椀zenship expires in the case of such of their
subjects as having le昀琀 the country and stayed abroad for a certain length of 琀椀me.
6. By subjuga琀椀on: A person may lose his na琀椀onality through subjuga琀椀on a昀琀er the conquest.
When a part of the territory of a State or a State itself is subjugated by another State, all
the inhabitants of the defeated State lose their na琀椀onality i.e. crea琀椀on of Bangladesh.

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7. By Cession: when a part of the territory of a State is ceded to another State, all the
na琀椀onals of the former lose the na琀椀onality.
4. EXTRADITION (DOUBLE CRIMINALITY IS IMPORTANT)

Answer:
De昀椀ni琀椀on
It is quite possible for a person to escape to another State a昀琀er commi琀�ng a crime in his own
State. Such cases have started occurring more frequently with the result of the development of
air tra昀케c. A ques琀椀on arises as to whether fugi琀椀ve shall be tried in the country where he has 昀氀ed
away or in the State where the crime has been commi琀琀ed. Normally, a State 昀椀nds itself in a
di昀케cult situa琀椀on to punish a person who has commi琀琀ed a crime elsewhere primarily because of
the lack of jurisdic琀椀on, and therefore, such persons are some琀椀mes surrendered to the state where
the crime has been commi琀琀ed. Surrender of an accused or of a convict is referred to extradi琀椀on.
Purpose of Extradi琀椀on
A criminal is extradited to the reques琀椀ng State because of the following reasons:

1. Extradi琀椀on is a process towards the suppression of Crime: Normally a person cannot be
punished or prosecuted in a State where he has 昀氀ed away because of lack of jurisdic琀椀on or
because of some technical rules of criminal law. Criminals are therefore extradited so that
their crimes may not go unpunished.
2. Extradi琀椀on acts as a warning to the criminals that they cannot escape punishment by
昀氀eeing to another State. Extradi琀椀on, therefore, has a deterrent e昀昀ect.
3. Criminals are surrendered as it safeguards the interest of the territorial State. If a
par琀椀cular state adopts a policy of non-extradi琀椀on of criminals they would like to 昀氀ee to
that state only. The State, therefore, would become a place for interna琀椀onal criminals.
4. Extradi琀椀on is based on reciprocity. A State which is requested to surrender the criminal
today may have to request for extradi琀椀on of a criminal on some future date.
5. Extradi琀椀on is done because it is a step towards the achievement of interna琀椀onal co-
opera琀椀on in solving interna琀椀onal problems of a social character. Thus, it ful昀椀ls one of the
purposes of the United Na琀椀ons as provided under Para 3 of Ar琀椀cle 1 of the Charter.
6. The State on whose territory the crime has been commi琀琀ed is in a be琀琀er posi琀椀on to try
the o昀昀ender because the evidence is more freely available in that State only.
Is Extradi琀椀on a Legal Duty of a State?
Gro琀椀us was of the view that a State of refuge has a duty either to punish the o昀昀ender or to
surrender him to the State seeking his return. The principle of ‘prosecu琀椀on or extradi琀椀on’ was
recognized by him as a legal duty of the State where the o昀昀ender is found.
A legal duty to surrender a criminal, therefore, arises only when trea琀椀es are concluded by the
States and a昀琀er the formali琀椀es have taken place which is s琀椀pulated in the extradi琀椀on trea琀椀es.
Only in excep琀椀onal cases, a State may extradite a person on the basis of reciprocity. However,
this is done not because of any legal duty on their part, but because of reciprocity or courtesy.
Law of Extradi琀椀on
In Interna琀椀onal Law, rules regarding extradi琀椀on are not well established mainly because
extradi琀椀on is a topic which does not come exclusively under the domain of Interna琀椀onal law. Law
of extradi琀椀on is dual law. It has opera琀椀on – na琀椀onal and interna琀椀onal. Extradi琀椀on or non-
extradi琀椀on of a person is determined by the municipal courts of a State, but at the same 琀椀me, it is
also a part of Interna琀椀onal law because it governs the rela琀椀ons between two States over the
ques琀椀on of whether or not a given person should be handed over by one State to another State.

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Presently, in the absence of any mul琀椀lateral treaty or Conven琀椀on, extradi琀椀on is done by States
on the basis of bilateral trea琀椀es. Bilateral trea琀椀es, na琀椀onal laws of several States, and the judicial
decisions of municipal courts led to developing certain principles regarding extradi琀椀on which are
deemed as general rules of Interna琀椀onal Law. Important amongst them are as follows:
1. Extradi琀椀on Trea琀椀es: The 昀椀rst and the foremost important condi琀椀on of extradi琀椀on is the
existence of an extradi琀椀on treaty between the territorial State and the reques琀椀ng State.
Some states, such as the United States, Belgium and the Netherlands, require a treaty as
an absolute pre-condi琀椀on. The strict requirement of an extradi琀椀on treaty may be
regarded as the most obvious obstacle to interna琀椀onal coopera琀椀on in the suppression of
crimes.
2. Non-extradi琀椀on of Poli琀椀cal O昀昀enders: It is a customary rule of Interna琀椀onal Law that
poli琀椀cal o昀昀enders are not extradited. In other words, they are granted asylum by the
territorial State.
3. The doctrine of Double Criminality: The doctrine of double criminality, also known as dual
criminality, denotes that a crime must be an o昀昀ence recognized in the territorial as well as
in the reques琀椀ng State. No person is extradited unless this condi琀椀on is ful昀椀lled. The
doctrine appears to be based on the considera琀椀on that it would o昀昀end that conscience of
the territorial State if it has to extradite a person when its own law does not regard him a
criminal. The reques琀椀ng State would also not ask for the surrender of a person for those
crimes which are not recognized in its State. The doctrine thus sa琀椀s昀椀es double purpose. It
helps the reques琀椀ng State to enforce its criminal law, and to the territorial State in the
sense that the rule protects it from fugi琀椀ve criminals.
The rule of double criminality has put a State into a di昀케cult situa琀椀on when it has to
request another State for extradi琀椀on in respect of those o昀昀ences which do not 昀椀nd a place
in the list of crimes embodied in a treaty. In order to overcome the above di昀케culty it is
desirable that instead of laying down the names of various crimes speci昀椀cally in the
trea琀椀es, some general criterion should be adopted. For instance, any o昀昀ence punishable
with a de昀椀nite minimum penalty under the laws of both the States should eligible a
person for extradi琀椀on appears to be more appropriate.
4. Rule of Speciality: According to this principle, a fugi琀椀ve may be tried by the reques琀椀ng
State only for that o昀昀ence for which he has been extradited. In other words, the
reques琀椀ng State is under a duty not to try or punish the fugi琀椀ve criminal for any other
o昀昀ence than that for which he has been extradited unless he has given an opportunity to
return to the territorial State. The rule has been made to provide safeguard to the
fugi琀椀ves against fraudulent extradi琀椀on. The rule of speciality is an established principle of
interna琀椀onal law rela琀椀ng to extradi琀椀on.
5. Prima Facie Evidence: There should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial State must sa琀椀sfy itself that there is a prima
facie evidence against the accused for which extradi琀椀on is demanded. The purpose of
laying down the rule of prima facie evidence is to check the fraudulent extradi琀椀on.
6. Time-barred Crimes: A fugi琀椀ve criminal shall not be surrendered, if he has been tried and
has served sentence for the o昀昀ence commi琀琀ed in the territorial State. Thus, extradi琀椀on is
not granted if the o昀昀ence for which extradi琀椀on has to be made has become 琀椀me-barred.
7. Extradi琀椀on of Own Na琀椀onals: In many cases, a person a昀琀er commi琀�ng a crime in a
foreign country 昀氀ees back to his own country. Whether a State would extradite such
persons, i.e., its own na琀椀onals, to a State where crime has been commi琀琀ed is a
controversial point and prac琀椀ce of States considerably di昀昀ers on it. Na琀椀onals may be
extradited if there is no bar in the na琀椀onal extradi琀椀on law or the treaty.
8. Military O昀昀enders: Extradi琀椀on trea琀椀es generally exclude military o昀昀ences. Broadly,
military o昀昀ences fall into two categories, i.e., those which cons琀椀tute o昀昀ences under
ordinary criminal law and those which relate speci昀椀cally to military ma琀琀ers. Only the

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second category quali昀椀es as military o昀昀ences in respect of which extradi琀椀on will not
apply.
9. For religious crimes also persons are not extradited.
10. For extradi琀椀on, it is also necessary that certain other prescribed formali琀椀es should be
ful昀椀lled.
Cases:
Veer Savarkar case (1911): Savarkar was an Indian revolu琀椀onary who was being brought to India
to be prosecuted on the ground of crimes which he was alleged to have commi琀琀ed. When the
ship was in the port of Marcelese, Savarkar escaped, but later on, he was apprehended by French
police. But the Captain of the French ship returned Savarkar to the Captain of the Bri琀椀sh ship.
Sucha Singh’s case: Sucha Singh was accused of murdering Pratap Singh Kairon, the former
Chief Minister of Punjab and had 昀氀ed away to Nepal and on the request of the Government of
India, the Government of Nepal a昀琀er star琀椀ng proceedings against him in accordance with the law
of Nepal, extradited him.
5. FREEDOMS OF HIGH SEAS.

Answer: High Seas: By the term, ‘high seas’ is meant under the customary rule of Interna琀椀onal
Law that part of the sea which is not included in the territorial waters. The rule was formulated in
1609 by Gro琀椀us in his trea琀椀se Mare Liberum by arguing that the sea cannot be owned. According
to him ‘the sea is one of those things which is not an ar琀椀cle of merchandise, and which cannot
become private property’. Hence, it follows to speak strictly, that no part of the sea can be
considered as the territory of any people whatsoever. However, the regime of the high seas has
been considerably changed under the Conven琀椀on on the law of the Sea of 1982 which lays down
under Ar琀椀cle 86 that all parts of the sea that are not included in the
 Exclusive economic zone
 Territorial sea
 Internal waters of a state
 Archipelagic waters of an archipelagic State (a group of islands).
Thus, the area of the high seas has been substan琀椀ally reduced under the Conven琀椀on of 1982.
Freedoms of the High Seas: Under the customary rule of Interna琀椀onal Law, high seas were free
and open to all States both for coastal and non-coastal States. ‘Freedom of the high sea’ was a
well-recognized principle which means that the high seas being common to all States, no State
may purport to subject any part of them to its territorial sovereignty. Since the open sea is not the
territory of any State, no State, as a rule, has a right to exercise its legisla琀椀on, administra琀椀on,
jurisdic琀椀on or police over parts of the high seas. Further, since the high seas can never be under
the sovereignty of any State, no State has a right to acquire parts of the high seas through
occupa琀椀on.
Although the open sea is not the territory of any State, it is nevertheless an object of the law of
na琀椀ons. Legal order was created through the co-opera琀椀on of the law of na琀椀ons and the municipal
laws of such States as possess a mari琀椀me 昀氀ag. The following rules of the law of na琀椀ons were
universally recognised.
Firstly: That every state which has a mari琀椀me 昀氀ag must lay down rules according to which vessels
can claim to sail under its 昀氀ags, and must furnish such vessels with some o昀케cial voucher
authorising them to make use of its 昀氀ag;
Secondly: Every state has a right to punish all such foreign vessels as sail under its 昀氀ag without
being authorised to do so;
Thirdly: All vessels with their persons and goods are, whilst on the open sea, considered under the
sway of the 昀氀ag state;
Fourthly: Every state has a right to punish piracy on the open sea even if commi琀琀ed by foreigners,
and that, with a view to the ex琀椀nc琀椀on of piracy, warships of all na琀椀ons can acquire all subject
vessels to show their 昀氀ag.

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States had freedoms of high seas as to:
1. Naviga琀椀on,
2. Fisheries,
3. Conduc琀椀ng scien琀椀昀椀c research,
4. Laying submarine cables and pipelines,
5. Freedom of over昀氀ight.
It was established that all vessels, public or private, on the high seas were subject to the
jurisdic琀椀on of the State under the 昀氀ag of which they might sail. The Conven琀椀on on the Law of the
Sea of 1982 under Ar琀椀cle 87 has rea昀케rmed that the high seas are open to all States, whether
coastal or land-locked. However, its freedom shall be exercised under the condi琀椀ons laid down by
this Conven琀椀on and by other rules of Interna琀椀onal Law.
6. OUTER SPACE TREATY, 1967

Answer:
Outer Space
Outer space may be de昀椀ned as that area of the universe where the atmosphere of the earth
ends. In other words, where aerial sovereignty of the States ends, outer space begins. It includes
all space above the lowest perigee (the point in the orbit of a satellite at which it is nearest to the
earth) achieved by any satellite put into orbit. Celes琀椀al bodies and the moon also form parts of
the space.
Law on Outer Space
The topic of outer space acquired importance in Interna琀椀onal law when the 昀椀rst Sputnik was
launched in the orbit by the U.S.S.R. on October 4, 1957. Since then a number of manned and
unmanned satellites and probes into outer space and celes琀椀al bodies have been launched by some
other States as well. The acts of di昀昀erent States in the outer space led to the United Na琀椀ons to
make rules and regula琀椀ons in this part of the universe. The law which has been made to regulate
the rela琀椀ons amongst the States and their rela琀椀onship with interna琀椀onal organiza琀椀ons in the
sphere of outer space, celes琀椀al bodies and Moon is called ‘Space Law’.
Outer Space Treaty of 1967:
On December 19, 1966, the General Assembly through a resolu琀椀on adopted the test of the
Treaty on Principles Governing the Ac琀椀vi琀椀es of States in the Explora琀椀on and Use of Outer Space,
including the Moon and Celes琀椀al Bodies. The resolu琀椀on was adopted unanimously. It is to be
noted that most of the principles included in the Declara琀椀on adopted in 1963 were incorporated
in the Treaty. The Treaty was opened for signature on January 27, 1967, and came into force on
October 20, 1967. As of May 2017, 106 States are par琀椀es to the Treaty. However, the Treaty is
binding not only to those States which are par琀椀es to it but all the States in view of the fact that
the rules regarding the outer space had cropped up as a customary rule of Interna琀椀onal Law.
The Treaty was a landmark on the road towards the establishment of a legal regime of outer
space. The above Treaty, commonly known as Outer Space Treaty laid down many principles
rela琀椀ng to the ac琀椀vi琀椀es on outer space, celes琀椀al bodies and the Moon. Notable amongst them
are the following:-
1. Freedom of Explora琀椀on of Outer Space:
Ar琀椀cle 1 of the Treaty provided that Outer Space, including the Moon and other celes琀椀al
bodies, shall be free for explora琀椀on and use by all States without discrimina琀椀on of any kind, on
the basis of equality and, in accordance with Interna琀椀onal Law, and there shall be free access to

lOMoARcPSD|28401756
all areas of celes琀椀al bodies. Ar琀椀cle I also provided that the explora琀椀on and use of outer space
including the Moon and other celes琀椀al bodies shall be carried out for the bene昀椀t and in the
interests of all countries, irrespec琀椀ve of their degree of economic or social development, and shall
be the province of all mankind.
2. Non-Appropria琀椀on of Outer Space:
While out space is free for the explora琀椀on and use for all the States, Ar琀椀cle II provided that the
area cannot be appropriated by any State. No State can claim sovereignty over them by means of
use or occupa琀椀on or by any other means.
3. Peaceful uses of Outer Space:
Part II of Ar琀椀cle IV of the Treaty provides that outer space, the moon and other celes琀椀al bodies
shall be used by the States exclusively for peaceful purposes. Thus, the establishment of military
bases, installa琀椀ons and for琀椀昀椀ca琀椀ons, the tes琀椀ng of any type of weapons and the conduct of
military manoeuvres on celes琀椀al bodies shall be forbidden.
4. Jurisdic琀椀on of States over Objects Launched:
The Treaty under Ar琀椀cle VIII down that a State Party to the treaty on whose registry an object
launched into outer space is carried shall retain jurisdic琀椀on and control over them, and over any
personnel thereof while in outer space or on a celes琀椀al body.
5. Interna琀椀onal Responsibili琀椀es for Na琀椀onal Ac琀椀vi琀椀es:
The Treaty established the States interna琀椀onal responsibility for all na琀椀onal ac琀椀vi琀椀es in outer
space carried out by both Government and non-governmental agencies. When the ac琀椀vi琀椀es are
carried on in outer space, by an interna琀椀onal organisa琀椀on, responsibility for compliance with this
Treaty shall be borne by the interna琀椀onal organisa琀椀on and by the State par琀椀es to the Treaty
par琀椀cipa琀椀ng in such organisa琀椀on.
6. Assistance to Personnel of Spacecra昀琀:
Ar琀椀cle V of the Treaty provided that State par琀椀es to the Treaty shall regard astronauts, as an
envoy of mankind in outer space. They shall render them all possible assistance in the event of
accident, distress or emergency landing on the territory of another State Party. When astronauts
make such a landing, they shall be safely and promptly returned to the State of registry of their
space vehicle.
7. Promo琀椀on of Interna琀椀onal Co-opera琀椀on in the Use of Outer Space:
Ar琀椀cle X of the Treaty provided to the State Par琀椀es to the Treaty to consider on a basis of
equality any requests by other State Par琀椀es to the Treaty to be a昀昀orded an opportunity to
observe the 昀氀ight of space objects launched by other States.
7. GIVE AN ACCOUNT OF THE SECURITY COUNCIL AND VETO AND DOUBLE VETO.
Answer: Security Council is a principal organ of the United Na琀椀ons. Chapter V of the Charter
consis琀椀ng of Ar琀椀cles 23 to 27 lays down the provisions rela琀椀ng to the Security Council.
Composi琀椀on:
The Council originally consisted of eleven members, but it was enlarged to 昀椀昀琀een members in
1965 in accordance with an amendment to the Charter. Out of 昀椀昀琀een members, 昀椀ve are
permanent members. Their names are men琀椀oned under Ar琀椀cle 23, Para 1 of the Charter. They
are China, France, Russia, the United Kingdom and the United States of America.

lOMoARcPSD|28401756
The other ten members of the Security Council are called non-permanent members. They are
elected by the General Assembly for a term of two years, but each year elec琀椀on of 昀椀ve members
take place when the equal number of members re琀椀res a昀琀er comple琀椀ng the term of two years.
The above system was adopted so that there may not be complete renewal of all the non-
permanent members. According to the last sentence of Ar琀椀cle 23, Para 2, a re琀椀ring member is not
eligible for immediate re-elec琀椀on, and therefore many States are eligible for the membership of
the Council. Each member of the Security Council shall have one representa琀椀ve in the Council at
all its mee琀椀ngs.
Func琀椀ons of the Security Council:
Func琀椀ons of the Security Council may be divided into three broad categories. They are as
follows:-
1. Maintenance of Interna琀椀onal Peace and Security:
The Maintenance of interna琀椀onal peace and security is the primary responsibility of the
Security Council. The power has been conferred to it under Ar琀椀cle 24, Para 1 of the Charter.
The Council performs the func琀椀ons rela琀椀ng to the maintenance of interna琀椀onal peace and
security in two ways, i.e., by peaceful means and by taking enforcement ac琀椀on.
A. By Peaceful Means: Chapter VI of the Charter provides the various modes by which the
Council se琀琀les the disputes which are likely to endanger interna琀椀onal peace and security.
If the Security Council determines that a dispute might endanger interna琀椀onal peace and
security, it may take the following measures to se琀琀le the dispute:
(i). To call upon the par琀椀es to se琀琀le the dispute peacefully,
(ii). Inves琀椀ga琀椀on of the Dispute,
(iii). Recommenda琀椀on for the ‘Appropriate Procedures or methods of Adjustment,
(iv). Recommenda琀椀on for the terms of the se琀琀lement,
B. By taking Enforcement Ac琀椀on: Once the Council has determined that there is a threat to
peace or breach of the peace or an act of aggression has been commi琀琀ed, it is empowered
to take enforcement ac琀椀on under Chapter VII of the Charter.
When the Security Council has determined that the threat to the peace, breach of the
peace or any act of aggression exists, it decides as to what measures are to be taken in
accordance with Ar琀椀cles 41 and 42, to maintain or restore interna琀椀onal peace and
security. These measures are as follows:
(i). Measures involving non-use of force,
(iii). Measures involving the use of armed force,
2. Miscellaneous Func琀椀ons:
Besides performing its main responsibility for maintaining interna琀椀onal peace and security, the
Council performs a number of other func琀椀ons which have been conferred to it under the Charter.
Such func琀椀ons are as follows:
A. Recommending the assembly for admission of a new member,
B. Suspending or expel a member,
C. Control the strategic area of the trust territories,
D. Amendment of Trusteeship agreements,
E. Appointment of Secretary-General of the United Na琀椀ons,
F. Conveying a special session or an emergency special session of the General Assembly,
G. Establishing subsidiary organs.
3. Func琀椀ons in Rela琀椀on to Interna琀椀onal Court of Jus琀椀ce:
The Interna琀椀onal Court of Jus琀椀ce is the ‘principal judicial organ’ of the United Na琀椀ons. The
Court performs its func琀椀ons in accordance with the provisions of the Statute which is an integral
part of the Charter.

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Veto
The United Na琀椀ons Security Council "veto power" refers to the power of the 昀椀ve permanent
members of the UN Security Council to veto any "substan琀椀ve" resolu琀椀on. However, a permanent
member's absten琀椀on or absence does not prevent a dra昀琀 resolu琀椀on from being adopted. This
veto power does not apply to "procedural" votes, as determined by the permanent members
themselves. A permanent member can also block the selec琀椀on of a Secretary-General, although a
formal veto is unnecessary since the vote is taken behind closed doors.
Veto Power, Ar琀椀cle 27, Para 3 s琀椀pulates that the decisions on non-procedural ma琀琀ers shall be
taken on a vote of nine members of the Council including the concurring votes of the permanent
members. It means that no decision can be taken by the Council on such ma琀琀ers if a dissen琀椀ng
vote is given by any permanent member. It implies that if a permanent member wishes that no
decision should be taken by the Council on any par琀椀cular issue, it has a power to do so by giving
dissen琀椀ng vote. Thus, by giving a dissen琀椀ng vote a permanent member has a power to block the
issue in the Council. In other words, if the concurring vote is withheld by any permanent member
the proposal shall be deemed vetoed, i.e., it could not be validly adopted. This power of the
permanent members is known as the veto power. However, the term 'veto' does not 昀椀nd a place
in the Charter of the United Na琀椀ons.
The veto power is controversial. Supporters regard it as a promoter of interna琀椀onal stability, a
check against military interven琀椀ons and a cri琀椀cal safeguard against US domina琀椀on. Cri琀椀cs say
that the veto is the most undemocra琀椀c element of the UN, as well as the main cause of inac琀椀on
on war crimes and crimes against humanity, and is rendered mostly useless against notable
human rights abuses of larger powers like the United States, China and Russia.
Double Veto
The right of veto may be exercised by the permanent members of the Security Council on two
di昀昀erent occasions.
Firstly, at the 琀椀me of deciding the nature of ma琀琀er, i.e., whether the ma琀琀er is procedural or non-
procedural. If the President of the Council decides that a par琀椀cular ma琀琀er is procedural, it
becomes non-procedural if the veto power is exercised on the decision of the President. And
secondly, when the Council is deciding on any non-procedural ma琀琀er. Thus, a permanent member
昀椀rst asserts that the ma琀琀er is not a procedural but a non-procedural ma琀琀er. It, therefore, makes
a ma琀琀er non-procedural from procedural by exercising the veto power. When a ma琀琀er becomes
non-procedural, it may again exercise the veto power at the 琀椀me of deciding on that very ma琀琀er.
The combined e昀昀ect of the above is that the Council cannot take a decision even on procedural
ma琀琀ers if the same has been made non-procedural by the exercise of the right of veto by any
permanent member. The exercise of veto power on two di昀昀erent occasions has been referred to
as ‘double veto’. The right of double veto was exercised by Russia in the Spanish case,
Czechoslovak case, and in the Greek case. In the Formosa case and the Laos case it was a琀琀empted
but not actually exercised.
LONG ANSWERS
8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW (CUSTOM IS VERY IMPORTANT)

lOMoARcPSD|28401756
Answer: it is an obliga琀椀on on the subjects of Interna琀椀onal Law to observe the rules of

Interna琀椀onal Law. A ques琀椀on arises as to from where such rules have come into existence in
Interna琀椀onal Law? Methods by which these rules have been discovered or created are known as
the sources of Interna琀椀onal Law. In the absence of any codi昀椀ed law on the sources of
Interna琀椀onal Law, Ar琀椀cle 38 of the Statute of the Interna琀椀onal Court of Jus琀椀ce has shed some
light on this.
Following are the sources of Interna琀椀onal Law:
1. Custom: Custom is the original and the oldest source of Interna琀椀onal Law and at a 琀椀me it
was the most important amongst the sources. Custom is the founda琀椀on stone of the
modern Interna琀椀onal Law. It was so because a large part of Interna琀椀onal Law consisted of
customary rules. Oppenheim de昀椀nes custom as a clear and con琀椀nuous habit of doing
certain ac琀椀ons which have grown up under the aegis of the convic琀椀on that these ac琀椀ons
are, according to Interna琀椀onal Law, obligatory or right. They evolve through the prac琀椀ces
of and usages of na琀椀ons and their recogni琀椀on by the community of na琀椀ons. Customary
rules are referred to those rules which are prac琀椀sed by most of the States, if not by all,
through ages by way of habit.
Forma琀椀on of a Customary Rule: Customary Interna琀椀onal Law results from a general and
consistent prac琀椀ce of States which is followed by them from a sense of legal obliga琀椀on. A
ques琀椀on arises as to when a general prac琀椀ce or usage is regarded as to have transformed
into a customary rule? Since custom is not a law crea琀椀ng fact customary rules do not grow
up by themselves. It is a necessary condi琀椀on for the crea琀椀on of a customary rule that at
least some States should ini琀椀ate that a par琀椀cular rule exists.
In order to establish the existence of an interna琀椀onal custom, primarily three elements
are required to be present which are dura琀椀on, con琀椀nuity and generality.
A. Dura琀椀on: when a par琀椀cular usage is prac琀椀sed by the States for a long dura琀椀on, it has
a tendency to become custom.
B. Uniformity or Consistency: A prac琀椀ce is required to be followed consistently by the
States. In the words of the Permanent Court of Interna琀椀onal Jus琀椀ce in the Lotus case,
the prac琀椀ce should be ‘constant and uniform’.
C. Generality: It is essen琀椀al that usage should be prac琀椀sed by most of the States in order
to transform into a custom. The above implies that there is no rule which prescribes
that the consent of all States is a necessary condi琀椀on for the forma琀椀on of a customary
rule.
It is an important ma琀琀er to see as to how interna琀椀onal custom will be applied in
interna琀椀onal law. There are two leading cases on the point:
(a). West Rand Central Gold Mining Company Ltd. V. R (1905) – In this case, a test
regarding the general recogni琀椀on of custom was laid down. The Court ruled that for a
valid interna琀椀onal custom it is necessary that it should be proved by sa琀椀sfactory evidence
that the custom is of such nature that it has received general consent of the States and no
civilized State shall oppose it.
In a case concerning Military and Para-military Ac琀椀vi琀椀es in and against Nicaragua, the
World Court observed:
“If a state acts in a way prima facie incompa琀椀ble with a recognized rule, but defends its
conduct by appealing to excep琀椀ons or jus琀椀昀椀ca琀椀ons contained within the rule itself, then,
whether or not the state’s conduct is, in fact, jus琀椀昀椀able on that basis, the signi昀椀cance of
that a琀�tude is to con昀椀rm rather than to weaken the rule”.
(b). Right of Passage over Indian Territory case [Portugal v. India]. In this case, the
Interna琀椀onal Court of Jus琀椀ce pointed out that when in regard to any ma琀琀er or prac琀椀se,
two States follow it repeatedly for a long 琀椀me, and it becomes a binding customary rule.

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2. Trea琀椀es: At present, interna琀椀onal trea琀椀es are the most important source of Interna琀椀onal
Law. Ar琀椀cle 38(1)(a) of the Statute of the Interna琀椀onal Court of Jus琀椀ce lays down that the
Court while deciding any dispute shall apply internal conven琀椀ons, whether general or
par琀椀cular, establishing rules expressly recognised by the contes琀椀ng States, in preference
to other sources of Interna琀椀onal Law. Trea琀椀es, therefore, have acquired dominant
importance in Interna琀椀onal Law.
3. General Principles of Law Recognised by the Civilized Na琀椀ons: Although custom and
trea琀椀es are in prac琀椀ce the principal sources of Interna琀椀onal Law, they cannot be regarded
as its only sources. General principles of law recognised by civilized na琀椀ons were inserted
under Ar琀椀cle 38(3) of the Statute of the Permanent Court of Interna琀椀onal Jus琀椀ce. The
same text has been included under Ar琀椀cle 38(1)(C) of the Statute of the Interna琀椀onal
Court of Jus琀椀ce.
Examples of principles which have been recognised are good faith, reciprocity,
presump琀椀on, estoppel and res judicata.
4. Judicial Decisions: Judicial decisions are the subsidiary means for the determina琀椀on of
rules of law and they, therefore, are the subsidiary and indirect source of Interna琀椀onal
law. It is so because the decisions of the courts do not create any precedent. They have
no binding force except to the par琀椀es to a par琀椀cular case. However, ‘subsidiary’ does not
mean secondary. In many areas of interna琀椀onal law judicial decisions cons琀椀tute the best
means of ascertainment of what the law is.
5. Wri琀椀ngs of Jurists: The Statute of the Interna琀椀onal Court of Jus琀椀ce lays down that the
teachings of the most highly quali昀椀ed publicists of the various na琀椀ons are a subsidiary
means for the determina琀椀on of rules of law.
6. Equity: The term, as a source of Interna琀椀onal Law, is used in the sense of considera琀椀ons
of fairness, reasonableness and policy o昀琀en necessary for the sensible applica琀椀on of the
more se琀琀led rules of law.
7. Resolu琀椀ons of the General Assembly: Resolu琀椀ons of the General Assembly of the United
Na琀椀ons do not possess legal character, and as such are not binding on the States. They do
not create any legal obliga琀椀ons on its members irrespec琀椀ve of the fact that they have
been adopted unanimously or by overwhelming votes or even if their contents are ma琀琀ers
of common interest to all the States.
9. INTERNATIONAL LAW IS NOT LAW IN THE STRICT SENSE (INTERNATIONAL LAW IS THE
VANISHING POINT OF JURISPRUDENCE).
Answer: There is a controversy as to the true nature of Interna琀椀onal law. Some jurists regard it as
a law while some other jurists argue in nega琀椀ve and hold that Interna琀椀onal law is not a true law.
Meaning: The expression ‘Interna琀椀onal Law’ was coined for the 昀椀rst 琀椀me by Jeremy Bentham in
1780. The term Interna琀椀onal Law is synonymous with the term law of na琀椀ons. It is a body of rules
and principles which regulate the conduct and rela琀椀ons of the members of the interna琀椀onal
community. Interna琀椀onal law is the set of rules generally regarded and accepted as binding in
rela琀椀ons between states and na琀椀ons. It serves as the indispensable framework for the prac琀椀ce of
stable and organized interna琀椀onal rela琀椀ons. Interna琀椀onal law di昀昀ers from na琀椀onal legal systems
in that it primarily concerns na琀椀ons rather than private ci琀椀zens.
Aim of Interna琀椀onal Law: Interna琀椀onal law aims to achieve:-

 Interna琀椀onal peace and security and

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 Promo琀椀on of friendly rela琀椀ons among the member states (the members of the
Interna琀椀onal Community i.e. United Na琀椀ons).
De昀椀ni琀椀on: It is very di昀케cult to de昀椀ne Interna琀椀onal Law. There are many de昀椀ni琀椀ons given by the
scholars, subject experts and interna琀椀onal jurists. Prominent among them are given below:
 Prof. L. Oppenheim- Law of Na琀椀ons or Interna琀椀onal Law is the name for the body of
customary and conven琀椀onal rules which are considered legally binding by the civilized
states in their intercourse with each other.
 J.L. Brierly- The Law of Na琀椀ons or Interna琀椀onal Law may be de昀椀ned as the body of rules
and principles of ac琀椀on, which are binding upon civilized states in their rela琀椀ons with one
another.
 Torsten Gihl- The term Interna琀椀onal Law means the body of rules of law, which apply
within the Interna琀椀onal Community or society of Sates.
 In Queen v. Keyn, 2 Ex. D. 63, 153, 154 (1876). LORD COLERIDGE, C.J., de昀椀ned Interna琀椀onal
law in the following words: “The law of na琀椀ons is that collec琀椀on of usages which civilized
States have agreed to observe in their dealings with one another.”
 Gray says Interna琀椀onal law or the Law of Na琀椀ons is the name of a body of rules which
according to their usual de昀椀ni琀椀ons regulate the conduct of states in their intercourse with
each other.
Public and Private Interna琀椀onal Law: Interna琀椀onal law may further be broken down as
public or private. Public Interna琀椀onal law covers the rules, laws and customs that govern and
monitor the conduct and dealings between na琀椀ons and/or their ci琀椀zens. The UN deals largely with
public interna琀椀onal law. Private Interna琀椀onal law (Con昀氀ict of laws) handles disputes between
private ci琀椀zens of di昀昀erent na琀椀ons.
Public interna琀椀onal law concerns the treaty rela琀椀onships between the na琀椀ons and persons
which are considered the subjects of interna琀椀onal law. Norms of interna琀椀onal law have their
source in either:
 Custom, or customary interna琀椀onal law (consistent provincial prac琀椀ce accompanied by
opinio Juris),
 Globally accepted standards of behaviour (peremptory norms known as jus cogens or ius
cogens), or
 Codi昀椀ca琀椀ons contained in conven琀椀onal agreements, generally termed trea琀椀es.
Ar琀椀cle 13 of the United Na琀椀ons Charter obligates the UN General Assembly to ini琀椀ate studies and
make recommenda琀椀ons which encourage the progressive development of interna琀椀onal law and
its codi昀椀ca琀椀on. Evidence of consensus or state prac琀椀ce can some琀椀mes be derived from
intergovernmental resolu琀椀ons or academic and expert legal opinions (some琀椀mes collec琀椀vely
termed so昀琀 law). Public Interna琀椀onal Law is commonly known as Interna琀椀onal Law or Law of
Na琀椀ons. As discussed earlier, it regulates the rela琀椀ons among the members of the interna琀椀onal
community which includes individuals also.
Private Interna琀椀onal Law , on the other hand, is that branch of Interna琀椀onal Law, which
determines or decides law applicable to the disputes or issues involving more than one na琀椀on and
determines the court having jurisdic琀椀on to decide the issue. Private Interna琀椀onal Law is
essen琀椀ally a part of municipal law. Dicey calls it ‘Con昀氀ict of Laws’ since it deals with rules
regula琀椀ng cases in which municipal laws of di昀昀erent states or na琀椀ons come into con昀氀ict. Such

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con昀氀icts may arise with regard to domicile, marriage, divorce, wills, contracts etc. Hence, its also
called as inter-municipal law.
Is Interna琀椀onal Law a True Law….? There had been a great controversy as to the ques琀椀on,
whether interna琀椀onal law is a law or not. Some answered the ques琀椀on in a昀케rma琀椀ve while others
in nega琀椀ve. These two views can be explained as under-
Not a Law- Supporters of this view are-
 John Aus琀椀n- a leading English writer on Jurisprudence answered the ques琀椀on in nega琀椀ve.
According to him, Interna琀椀onal Law is not a true law, but a code of rules and conduct of
moral force only. He holds that Interna琀椀onal Law is no law as it does not emanate from a
law giving authority and has no sanc琀椀on behind it. Aus琀椀n described Interna琀椀onal Law as
posi琀椀ve interna琀椀onal morality consis琀椀ng of opinion or sen琀椀ments current among na琀椀ons
generally.
 Hobbes and Pufendorf- also answered the ques琀椀on in nega琀椀ve by saying that there is no
posi琀椀ve law of na琀椀ons properly invested with true legal force and binding as the
command of a superior.
 Holland- observed that Interna琀椀onal Law di昀昀ered from ordinary law and not supported by
the authority of a state. According to him, the law of na琀椀ons is but private law ‘writ large’.
In this view of the ma琀琀er, he called “Interna琀椀onal Law as the vanishing point of
Jurisprudence”. According to him, rules of Interna琀椀onal Law cannot be kept into the
category of law because it lacks sanc琀椀on, which is an essen琀椀al element of municipal law.
 Jeremy Bentham and Jethro Brown are the other prominent jurists who also deny the legal
character Interna琀椀onal Law.
Interna琀椀onal Law Is a Law- supporters of this view are-
 Hall and Lawrence, on the other hand, answered the ques琀椀on in a昀케rma琀椀ve. According to
them, Interna琀椀onal Law is habitually treated and enforced as law, like certain kind of
posi琀椀ve law; it is derived from custom and precedent which form a source of Interna琀椀onal
Law.
 Pi琀琀 Cobbe琀琀 observed that Interna琀椀onal Law must rank with the law and not with
morality.
 Sir Frederick Pollock writes the only essen琀椀al condi琀椀ons for the existence of law are the
existence of poli琀椀cal community and the recogni琀椀on by its members of se琀琀led rules
binding upon them in that capacity. Interna琀椀onal Law seems on the whole to sa琀椀sfy these
condi琀椀ons.
Thus it is clear from the above discussion that the solu琀椀on for the above ques琀椀on depends
upon the de昀椀ni琀椀on of law, which one may choose to adopt.
10. RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW.

Answer:
Introduc琀椀on:

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Apparently, there seems no rela琀椀onship between interna琀椀onal law and municipal law. But if
examined with philosophical eve then it would seem that there is a rela琀椀onship between both the
legal orders. The test to observe the rela琀椀onship between the two systems may be conducted in
case of a con昀氀ict between the two legal orders. The situa琀椀on would arise that what law shall be
applicable to the case in ques琀椀on.
Rela琀椀onship between Municipal Law and Interna琀椀onal Law :
As to the rela琀椀onship between Municipal Law and Interna琀椀onal Law, there are many theories the
most prominent ones of which may be discussed as under:
1. Dualis琀椀c theory:
Dualists emphasize the di昀昀erence between na琀椀onal and interna琀椀onal law and require the
transla琀椀on of the la琀琀er into the former. Without this transla琀椀on, interna琀椀onal law does not exist
as law. Interna琀椀onal law has to be na琀椀onal law as well, or it is no law at all. If a state accepts a
treaty but does not adapt its na琀椀onal law in order to conform to the treaty or does not create a
na琀椀onal law explicitly incorpora琀椀ng the treaty, then it violates interna琀椀onal law. But one cannot
claim that the treaty has become part of na琀椀onal law. Ci琀椀zens cannot rely on it and judges cannot
apply it. Na琀椀onal laws that contradict it remain in force. According to dualists, na琀椀onal judges
never apply interna琀椀onal law; only interna琀椀onal law that has been translated into na琀椀onal law
will be applied.
According to the dualist view, the systems of Interna琀椀onal Law and Municipal Law are separate
and self-contained to the extent to which rules of the one are not expressly or tacitly received into
the other system. In the 昀椀rst place, they di昀昀er as regards their sources. The sources of Municipal
Law are customs grown up within the boundaries of the State concerned and statutes enacted
therein while the sources of Interna琀椀onal Law are customs grown up within the Family of Na琀椀ons
and law-making trea琀椀es concluded by its members. In the second place, Municipal Laws regulate
rela琀椀ons between the individuals under the sway of a State or between the individuals and the
State while Interna琀椀onal Law regulates rela琀椀ons between the member States of the Family of
Na琀椀ons.
Lastly, there is a di昀昀erence with regard to the substance of the law in as much as Municipal Law
is a law of the sovereign over individuals while Interna琀椀onal Law is a law between sovereign
States which is arrived at an agreement among them. The la琀琀er is, therefore, a weak law
2. Monis琀椀c theory:
Monists assume that the internal and interna琀椀onal legal systems form a unity.
Both na琀椀onal legal rules and interna琀椀onal rules that a state has accepted, for example by way of
a treaty, determine whether ac琀椀ons are legal or illegal. In most monist states, a dis琀椀nc琀椀on
between interna琀椀onal law in the form of trea琀椀es, and other interna琀椀onal law, e.g. jus cogens is
made. Interna琀椀onal law does not need to be translated into na琀椀onal law. The act of ra琀椀fying
interna琀椀onal law immediately incorporates the law into na琀椀onal law.
A judge can declare a na琀椀onal rule invalid if it contradicts interna琀椀onal rules because, in some
states, the la琀琀er has priority. In other states, like in Germany, trea琀椀es have the same e昀昀ect as
legisla琀椀on, and by the principle of lex posterior, only take precedence over na琀椀onal legisla琀椀on
enacted before their ra琀椀昀椀ca琀椀on.

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In its most pure form, monism dictates that na琀椀onal law that contradicts interna琀椀onal law is
null and void, even if it predates interna琀椀onal law, and even if it is the cons琀椀tu琀椀on. It maintains
that the subject of the two systems of law namely, Interna琀椀onal Law and Municipal Law are
essen琀椀ally one in as much as the former regulates the conduct of States, while the la琀琀er of
individuals.
According to this view, the law is essen琀椀ally a command binding upon the subjects of the law
independent of their will which is one case in the States and the other individuals.
According to it Interna琀椀onal Law and Municipal Law are two phases of one and the same thing.
The former although directly addressed to the States as corporate bodies are as well applicable to
individuals for States are only groups of individuals.
3. Transforma琀椀on Theory:
According to this theory, it is the transforma琀椀on of the treaty into na琀椀onal legisla琀椀on which
alone validates the extension to individuals of the rules set out in interna琀椀onal agreements. The
transforma琀椀on is not merely a formal but substan琀椀al requirement. Interna琀椀onal Law according to
this theory cannot 昀椀nd a place in the na琀椀onal or Municipal Law unless the la琀琀er allows its
machinery to be used for that purpose.
This theory is fallacious (based on a false idea, in-correct or wrong) in several respects.
1. In the 昀椀rst place, its premise that Interna琀椀onal Law and Municipal Law are two dis琀椀nct
systems is incorrect.
2. In the second place the second premise that Interna琀椀onal Law binds States only whereas
municipal law applies to individuals is also incorrect for Interna琀椀onal Law is the sum of the
rules which have been accepted by civilized states as determining their conduct towards
each other and towards each other’s subjects.
3. In the third place, the theory regards the transforma琀椀on of trea琀椀es into na琀椀onal law for
their enforcement. This is not true in all cases for the prac琀椀ce of transforming trea琀椀es into
na琀椀onal legisla琀椀on is not uniform in all the countries. And this is certainly not true in the
case of law-making trea琀椀es.
4. Delega琀椀on Theory:
According to this theory, there is the delega琀椀on of a right to every State to decide for itself
when the provisions of a treaty or conven琀椀on are to come into e昀昀ect and in what manner they are
to be incorporated in the law of the land or municipal law. There is no need for transforma琀椀on of
a treaty into na琀椀onal law but the act is merely an extension of one single act. The delega琀椀on
theory is incomplete for it does not sa琀椀sfactorily meet the main argument of the transforma琀椀on
theory. It assumes the primacy of interna琀椀onal legal order but fails to explain the rela琀椀ons
exis琀椀ng between municipal and interna琀椀onal laws.
It is se琀琀led by the leading English and American decisions that Interna琀椀onal Law forms part of
the municipal law of those countries. The United States has unambiguously applied the doctrine
that Interna琀椀onal Law is part of the law of the land.
All interna琀椀onal conven琀椀ons ra琀椀昀椀ed by the USA and such customary Interna琀椀onal Law as has
received the assent of the United States are binding upon American Courts even if they may be

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contrary to the statutory provisions. There is a presump琀椀on in cases of con昀氀ict that the United
States Congress did not intend to overrule Interna琀椀onal Law.
11. WHAT IS STATE SUCCESSION? EXPLAIN DIFFERENT KINDS OF STATE SUCCESSION.
Answer: ‘State succession’ is meant the subs琀椀tu琀椀on of one State by another over territory. It
signi昀椀es the transfer of rights and du琀椀es from one interna琀椀onal person to another in consequence
of a territorial change. Oppenheim lays down that ‘a succession of interna琀椀onal persons occurs
when one or more interna琀椀onal persons take the place of another interna琀椀onal person, in
consequence of certain changes in the la琀琀er’s condi琀椀on. The Vienna Conven琀椀on on Succession of
States in Respect of Trea琀椀es of 1978 de昀椀nes State succession likewise by sta琀椀ng under Ar琀椀cle 2(1)
(a) as the replacement of one State by another in the responsibility for the interna琀椀onal rela琀椀ons
of territory. Thus, a case of succession arises only when one subject of Interna琀椀onal Law enters
into rights of another.
The de昀椀ni琀椀on applies to all the cases of State succession except to that of mandate or trust
territory when it is not sovereignty but a special type of legal competence is replaced. A State
which has replaced another is called the ‘Successor State’, or in some case ‘new State’. However,
the expressions ‘Successor State’ and ‘new State’ are not synonymous. The former is wider in the
applica琀椀on. The term ‘new State’ signi昀椀es a State which has arisen from succession were a
territory, which previously formed part of an exis琀椀ng State, has become an independent State.
The State which has been replaced is known as the ‘parent’ of ‘Predecessor State’.
Kinds of State Succession:

State succession may occur in a number of ways, for instance, dismemberment of an exis琀椀ng
State, secession, annexa琀椀on, cession, merger and decoloniza琀椀on of all or parts of an exis琀椀ng
State. The above may be divided broadly into universal succession and par琀椀al succession.
1. Universal Succession:
In cases where the personality of the Predecessor State is completely destroyed and is
absorbed by another interna琀椀onal person, the succession is termed ‘universal’ or total. It may
take place either through a voluntary merger or through annexa琀椀on or subjuga琀椀on. Thus, it was
total succession when Prussia annexed Hanover in 1866 or the South African Republic was
annexed by Great Britain in 1901, Korea by Japan in 1910, Austria by Germany in 1938. Universal
succession also takes place when a State voluntarily merges with another State. Uni昀椀ca琀椀on of
Germany with the result of the merger of German Democra琀椀c Republic with the Federal Republic
of Germany in 1990 is an instance of universal succession.
2. Par琀椀al Succession:
When a part of the territory is severed from the parent State and personality is a昀昀ected only to
the extent by which the territory is transferred, what results is par琀椀al succession. Par琀椀al
succession takes place, for instance, either by succession, i.e., separa琀椀on from the parent State, or
by cession, or by conquest and annexa琀椀on of a part, or by dismemberment i.e., when a State is
replaced by two or more States. The secession of Estonia, Latvia and Lithuania in 1991 from the
U.S.S.R. of Slovenia and Croa琀椀a from Yugoslavia in 1992, crea琀椀on of Bangladesh by severing part
of Pakistan and South Sudan from Sudan in 2011 are the examples of par琀椀al succession. Further,
replacement of the Soviet Union by 12 sovereign States in December 1991 and the replacement of
Czechoslovakia by the Czech Republic and the Slovak Republic on January 1, 1993, are the
examples of the par琀椀al succession.
It is to be noted that in both types of State succession there is a common factor, i.e., one or
more sovereigns subs琀椀tute for another, and therefore, the dis琀椀nc琀椀on is merely an abbreviated
way of de昀椀ning the extent of the change and the transmission of the rights and obliga琀椀ons of the
old State to the new State.

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12. MODES OF ACQUIRING STATE TERRITORY

Answer: Acquisi琀椀on of a territory by a State means the acquisi琀椀on of sovereignty over such
territory. An exis琀椀ng State may acquire the territory which may already be under the sovereignty
of another State or which may not belong to any State, i.e., res nullius. While the former is called
the deriva琀椀ve mode of acquisi琀椀on wherein acquisi琀椀on enlarges the territory of one State and
which inversely is the loss of another State, the la琀琀er is called original mode of acquisi琀椀on
wherein territory of one State is enlarged without the loss of the territory by another State.
Following are the di昀昀erent modes by which a State may acquire territory:-
1. Occupa琀椀on:
The term ‘occupa琀椀on’ has been derived from the Roman term occupa琀椀on which means the
acquisi琀椀on of res nullius, i.e., a territory capable of being brought under territorial sovereignty but
not yet so brought. In the same way, occupa琀椀on in Interna琀椀onal Law means an act of
appropria琀椀on by a State over a territory which does not belong to any other State. Such territory
may be uninhabited such as an island, or maybe inhabited by persons whose community is not
considered as a State.
Possession and Administra琀椀on are the two essen琀椀al factors required to cons琀椀tute an e昀昀ec琀椀ve
occupa琀椀on. For possession, the territory must be taken under the state’s sway (corpus) and with
the inten琀椀on of acquiring sovereignty over it (animus). Possession generally involves a se琀琀lement
and some sort of formal act which announces and shows the inten琀椀on of the occupying state.
A昀琀er taking possession, the state has to establish an administra琀椀ve system within a reasonable
period of 琀椀me. Administra琀椀ve func琀椀on is necessary because only then is the possessor state
exercising sovereignty over the territory.
2. Annexa琀椀on:
By the term, ‘annexa琀椀on’ is meant the forcible acquisi琀椀on of territory by one State at the
expense of another. When a State annexes the territory-either en琀椀re territory or a part of it, it
establishes its sovereignty over the annexed territory. In contrast to other methods of acquiring
territorial sovereignty or acquisi琀椀on by an interna琀椀onal legal transac琀椀on, the element of force
plays a decisive role. An annexa琀椀on can only be said to have taken place when not only the
territory in ques琀椀on has been occupied but also the inten琀椀on to appropriate it permanently has
been shown. The inten琀椀on may be indicated by making some no琀椀昀椀ca琀椀on to annex the territory
and the same must be recognized by several other powers.
3. Accre琀椀on:
Accre琀椀on is the name for the increase of land through new forma琀椀ons. Such new forma琀椀ons
may be only a modi昀椀ca琀椀on of the exis琀椀ng state territory, for instance, where an island rises within
a river or a part of a river, which is totally within the territory of one and the same State; and in
such case, there is no increase of territory to correspond with the increase of land. New forma琀椀on
through accre琀椀on may be ar琀椀昀椀cial or natural. They are ar琀椀昀椀cial if they are the outcome of human
work. They are natural if they occur through the opera琀椀on of nature, and within the sphere of
natural forma琀椀ons di昀昀erent kind must again be dis琀椀nguished –namely, alluvions (adding to the
area of land by deposi琀椀on), deltas, new-born islands and abandoned river-beds.
4. Prescrip琀椀on:
Prescrip琀椀on is the acquisi琀椀on of territory by an adverse holding con琀椀nued for a certain length
of 琀椀me peacefully. If a State exercises control over a territory con琀椀nuously for a long 琀椀me
without any interrup琀椀on and possess it de facto, the concerned territory becomes a part of that
State. The mode is known as a prescrip琀椀on. Before the acquisi琀椀on of a territory could be made

lOMoARcPSD|28401756
through prescrip琀椀on, three condi琀椀ons are required to be sa琀椀s昀椀ed. Firstly, possession of territory
should be peaceful and without any interrup琀椀on. Secondly, it should be con琀椀nuous, and thirdly,
possession should be held fairly for a long 琀椀me.
5. Cession:
Cession is the transfer of sovereignty over a de昀椀nite territory by one State to another State.
Oppenheim de昀椀nes cession of State territory as the transfer of sovereignty over State territory by
the Owner State to another State. The State to whom the territory is transferred is called
acquiring State, and the State which allows transferring its territory is referred to as ceding state.
6. Award:
Territory may be acquired by a state through adjudica琀椀on by judicial organs such as
Interna琀椀onal Court of Jus琀椀ce, ad hoc arbitral tribunals or concilia琀椀on commissions. If a given
territory, which is a part of one State, and later, a昀琀er an objec琀椀on is raised by another State, is
submi琀琀ed to the judicial organ for se琀琀lement which gives the award in favour of the la琀琀er, the
琀椀tle is regarded as to have passed through the award.
7. Plebiscite:
A State may also acquire territory if the inhabitants of a given territory wish to merge it with
another State. It may be noted that the ques琀椀on of ascertaining the wishes of the people arises
where there is a dispute as to the status of a given territory.
8. Lease:
The territory may also be acquired through a lease. A State may give its territory to another
State under lease for a certain period. In the Panama Canal’s case, a lease was granted to the
United States in perpetuity. The United States was given the occupa琀椀on and control of the area
concerned over and below the surface for the construc琀椀on and protec琀椀on of the canal.
9. Pledge:
Some琀椀mes there arise certain circumstances under which a State becomes compelled to pledge
a part of its territory in return of some amount of money for which it is in dire need. In this case,
also, a part of sovereignty over the territory concerned is transferred. For example, in 1768, the
Republic of Geneo had pledged the island of Corsica to France.
10. Acquisi琀椀on of territorial sovereignty by newly emerged State:

Yet another method of acquiring territorial sovereignty is that of a newly emerged State. This is
par琀椀cularly true of those States who were previously the colonies of some States and later on
were liberated.
Modes of loss of state territory:

Acquisi琀椀on of a State territory by one State, except in the case of occupa琀椀on, is a loss of State
territory for another State. Thus, a State may lose territory by:
1. Secession,
2. Grant of Independence by the Metropolitan State,
3. Derelic琀椀on (or Abandonment or Relinquishment),
4. Vanishment (or Disappearance).
5. Prescrip琀椀on.
6. Revolt.
7. Subjuga琀椀on.

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13. EXPLAIN THE PRIVILEGES AND IMMUNITIES OF DIPLOMATIC ENVOYS (IMMUNITY FROM THE
LOCAL JURISDICTION IS IMPORTANT)
Answer:
The system of appointment of an agent to act as representa琀椀ve of king or ruler, for the purpose
of doing work in other countries or to perform some func琀椀on has been in vogue from 琀椀me
immemorial.
This is the system in the interna琀椀onal world, this type of person is known as 'DIPLOMATIC
REPRESENTATIVE' or 'DIPLOMATIC AGENT'. Special importance is given to such person in
interna琀椀onal law. Such type of person has many immuni琀椀es and privileges. And having some
du琀椀es which are understood by a brief explana琀椀on as following as under-
CLASSIFICATION OF DIPLOMATIC AGENT-The diploma琀椀c agent has been classi昀椀ed according to
their status and func琀椀ons, it was again dropped by 1961 conven琀椀on on Diploma琀椀c rela琀椀ons.
The classification of diplomatic envoys is as follows:

1)-AMBASSADORS AND LEGATES- Ambassador and legates are the diploma琀椀c agents of the 昀椀rst
category. They are the representa琀椀ves of the completely sovereign states. They are either
appointed as ambassador or permanent representa琀椀ve of their respec琀椀ve countries in the United
Na琀椀ons. The representa琀椀ves appointed by the pope are called legates.
2)-MINISTERS PLENI-POTENTIARY AND ENVOYS EXTRAORDINARY-Minister - pleni-poten琀椀ary and
envoys extraordinary are the diploma琀椀c agents of the second category and as compared to the
diploma琀椀c-agents of the 昀椀rst category, they enjoy less privilege and immuni琀椀es.
3)-CHARGE D’AFFAIRES-Charge-d-a昀昀airs are the diploma琀椀c agents of the last category. The main
reason for this is that they are not appointed by the head of the state. They are appointed by the
foreign ministers of states. In right and status, they are considered below the minister resident.
It was made clear in Ar琀椀cle-14(2) of the Vienna Conven琀椀on on diploma琀椀c rela琀椀on that apart
from precedent and e琀椀que琀琀e, there is hardly any di昀昀erence between the diploma琀椀c agents of the
above-men琀椀oned categories. Obviously, there is no di昀昀erence so for as their privilege and
immunity are concerned.
Basis of Diploma琀椀c immunity and privileges

Di昀昀erent interna琀椀onal jurists have divergent views as to the basis for giving immuni琀椀es to
diploma琀椀c agents. Their views led to the emergence of three important theories which are as
follows:
 Extra-territorial Theory: This theory is also known as the 昀椀c琀椀onal theory. According to this
theory, diploma琀椀c agents are considered not be within the territorial jurisdic琀椀on of the
State to which they are accredited, but to all 琀椀mes within that of the sending State. Extra-
territorially of diploma琀椀c agents means that though diplomats physically present upon the
soil of the country to which they are accredited but they remain for all purposes on the
soil to which they represent.
 Representa琀椀onal Theory: According to this theory, diploma琀椀c agents are regarded as
personal representa琀椀ve of the sovereign of the sending State. Therefore, they are given
the same degree of privileges and rights which are given to the head of the sending State.
 Func琀椀onal Theory: According to this theory, diploma琀椀c agents are given immuni琀椀es
because of the nature of their func琀椀ons. The du琀椀es which the diplomats perform are far
from easy. In other words, their ac琀椀ons of du琀椀es are of typical or some special nature.
They are allowed immuni琀椀es from the legal and other limita琀椀ons of the State to which
they are accredited to e昀昀ec琀椀vely perform the tasks they are allo琀琀ed.
IMMUNITIES AND PRIVILEGES OF DIPLOMATIC AGENTS-Several immuni琀椀es and privileges have

lOMoARcPSD|28401756
been given to diploma琀椀c agent under interna琀椀onal law. S.S.DHAWAN has considered these
immuni琀椀es and privileges the main base of interna琀椀onal law. These immuni琀椀es and privileges are
as follows-
1) – INVIOLABILITY (incapable of being violated) – It is a well-recognised principle of interna琀椀onal

law that the person of Envoys in regarded inviolable. In interna琀椀onal law, diploma琀椀c agents have
been given su昀케cient personal security. This immunity is recognised under Vienna conven琀椀on
1961. In Ar琀椀cle 29 of the said conven琀椀on, it has been said that "Diploma琀椀c agents will enjoy
physical inviolability. He will not be liable to any form of arrest or deten琀椀on. Honourable
treatment will be given to him by taking or keeping state and every e昀昀ort shall be made to
maintain his freedom and reputa琀椀on as intact."
But if the behaviour and conduct of diploma琀椀c agent are found to be objec琀椀onable and if a charge
is imposed upon him of interference in internal a昀昀airs of keeping state, then he may be declared
as PERSONA NON GRATA and may be asked to leave the country (Ar琀椀cle- 9 and 43 of Vienna
conven琀椀on 1961), Indian diploma琀椀c agent in Pakistan RAJESH MITTAL was tortured by o昀케cers of
an intelligence agency of Pakistan on 25th may 1992 and with the result, India declared two
Pakistani diploma琀椀c agents in India as PERSONA NON GRATA and was asked to leave India is a
good example of this.
2)-IMMUNITY FROM CIVIL ADMINISTRATIVE JURISDICTION- It is a well-established principle of

interna琀椀onal law that the diploma琀椀c agents enjoy immune from civil and administra琀椀ve
jurisdic琀椀on.
Under this immunity:-
1)- no suit can be 昀椀led against the diploma琀椀c agent for recovery of debt.
2)- he cannot be arrested in ac琀椀on for debt recovery.
3)- his property cannot be ceased and sold.
3)-IMMUNITY FROM CRIMINAL JURISDICTION -Diploma琀椀c agents have also been given immunity
from criminal jurisdic琀椀on. Under Ar琀椀cle 31 of Vienna conven琀椀on 1961, it has been provided that
"diploma琀椀c agents shall be immune from the criminal jurisdic琀椀on of the state". It means that the
keeping state shall not prosecute and penalise any diploma琀椀c agent under any circumstance. Even
he cannot be arrested. But it does not mean that he can behave as he likes in keeping state. It is
his duty that he should obey all rules and laws of keeping state and should not do such an act
which is inconsistent with the internal system of keeping state. If any misconduct is done by him,
the keeping state may suspend him and ask him to leave the country.
For example- in 1995 the 昀椀rst secretary sultan Mahmood Dehadar in Afghan embassy was
suspended by government of India in Delhi in consequence of criminal charge and misconduct and
was sent back to Afghanistan. This immunity is not available to children and rela琀椀ves of diploma琀椀c
agents who are not residing with them.
4)-IMMUNITY REGARDING RESIDENCE-There is the inviolability of residence of a diploma琀椀c agent.

Entry in house and even his house cannot be searched. If there is any person hidden in his house
to whom the police want to arrest, normally the diploma琀椀c agent surrenders such person to the
police.
5)-IMMUNITY FROM GIVING EVIDENCE IN THE COURT-Diploma琀椀c agent is immune from
presen琀椀ng himself for giving evidence in the courts. He cannot be made bound for giving evidence
in the court. In Ar琀椀cle-31(2) of Vienna conven琀椀on, it has been said: "NO DIPLOMATIC AGENT WILL
BE MADE BOUND FOR GIVING evidence IN A COURT AS WITNESS". But if any diploma琀椀c agent
wants to give evidence at his own then he will be allowed to present himself in a court for giving

lOMoARcPSD|28401756
evidence.
6)-IMMUNITY FROM PAYMENT OF TAXES-In interna琀椀onal law, the diploma琀椀c agent is immune
from payment of taxes and customs du琀椀es. According to Ar琀椀cle 34 and 36 of Vienna conven琀椀on
"A DIPLOMATIC AGENT SHALL BE IMMUNE FROM PAYMENT OF ALL TYPES OF TAXES AND DUTIES".
But if any diploma琀椀c agent wants to pay taxes in exchange for enjoyment of facili琀椀es of water and
electricity he will be allowed to pay. But if he does not pay any tax, no legal ac琀椀on will be taken
against him.
7) - IMMUNITY FROM POLICE RULES AND REGULATIONS-Diploma琀椀c agents are immune from
police rules and regula琀椀ons. If he obeys these rules: it will be treated as his good manners towards
the state for maintenance of good rela琀椀ons.
8)-RIGHT OF WORSHIP AND DEVOTION TO GOD- Diploma琀椀c agent have the right to worship
according to his own consciousness is his embassy. But he does not enjoy the right to preach his
own religion and to make the ci琀椀zens of keeping states bound to par琀椀cipate in his worship and
devolu琀椀on.
9)-IMMUNITY FROM LOCAL AND MILITARY OBLIGATIONS- According to Ar琀椀cle-35 of Vienna
conven琀椀on 1961, the diploma琀椀c agent has been immune from local and military obliga琀椀ons.
10)-RIGHT TO EXERCISE CONTROL AND JURISDICTION OVER THEIR OFFICERS AND FAMILIES.
11)-FREEDOM OF COMMUNICATION FOR OFFICIAL PURPOSE-This freedom has been conferred
upon by Ar琀椀cle-27 of Vienna conven琀椀on on the diploma琀椀c rela琀椀ons, 1961. This Ar琀椀cle provides
that they have the freedom to communicate with their home-state in connec琀椀on with their
func琀椀ons and du琀椀es.
12)-RIGHT TO TRAVEL FREELY IN TERRITORY OF THE RECEIVING STATE- This new right has, for the
昀椀rst 琀椀me been introduced in Ar琀椀cle-26 of the Vienna Conven琀椀on on Diploma琀椀c rela琀椀ons, 1961.
Ar琀椀cle 26 provides that diploma琀椀c agents can travel in the territory of the receiving state subject,
of course, to the condi琀椀on that they cannot go to the prohibited places or the places which are
important from the point of view of the security of the receiving state.
13)-IMMUNITY FROM SOCIAL SECURITY PROVISIONS-According to Ar琀椀cle 33, a diploma琀椀c agent
shall with respect to services rendered for the sending State be exempt from social security
provisions which may be in force in the receiving state.
14)-IMMUNITY FROM INSPECTION OF PERSONAL BAGGAGE-Ar琀椀cle 36(2) of Vienna conven琀椀on
1961 provides that the personal baggage of a diploma琀椀c agent be exempt from inspec琀椀on.
14. DIFFERENTIATE BETWEEN TERRITORIAL WATERS, CONTIGUOUS ZONE, CONTINENTAL SHELF

AND HIGH SEAS.
Answer:

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Territorial Sea (formerly called as the Territorial Waters/Mari琀椀me Belt)

The sovereignty of the State is con昀椀ned not only to the waters and land lying within its
boundaries. It also extends to a part of the sea which is adjacent to the coastal State. These
waters are contained in a certain zone or belt called ‘Marginal Zone’ or Marginal Belt’ and the
rights which the coastal states enjoy are called the mari琀椀me rights. Territorial sea, therefore, may
be de昀椀ned as that part of the sea which is adjacent to the coast and over which Interna琀椀onal Law
permits the coastal States to exercise sovereignty subject only to a general right of innocent
passage on the part of foreign shipping. The possession of this territory is neither op琀椀onal, nor
dependent upon the will of the State, but compulsory. It is di昀昀erent from the internal waters in
the sense that internal water lies within the boundaries of the State, and they are used exclusively
by the States themselves. Right of innocent passage is not available with respect to internal
waters. It is also di昀昀erent from the high seas which are free to the commerce and naviga琀椀on of all
the States. The Conven琀椀on on the Law of the Sea of 1982 has laid down that ‘the sovereignty of a
coastal State extends’ beyond its land territory and internal waters to an adjacent belt of the sea is
described as the territorial sea’.
Two important aspects are involved in the concept of the territorial sea. They are the breadth
of the territorial sea and the rights of States over the territorial sea.
1. The breadth of Territorial Sea: Although it has been generally accepted that the State
exercises sovereignty over territorial waters, controversy arises as to its breadth.
Customary interna琀椀onal law does not prescribe any de昀椀nite rule in this regard. The extent

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of the territorial jurisdic琀椀on was based on the ‘Cannon shot’ rule. Since a cannonball
could travel three miles, this became the accepted territorial waters limit.
However, Conven琀椀on of 1982 has se琀琀led the controversy by providing under Ar琀椀cle 3,
that every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding twelve nau琀椀cal miles measured from baselines. The breadth of the territorial
sea as provided under the Conven琀椀on on the Law of the Sea of 1982 is acceptable to most
of the States. About 90 States including India have adopted legisla琀椀on extending the
maximum breadth of the territorial sea to twelve nau琀椀cal miles. Ar琀椀cle 15 of the 1982
Conven琀椀on lays down that in those cases where the coasts of two States are opposite or
adjacent to each other, neither of the two States is en琀椀tled, failing agreement between
them to the contrary, to extend its territorial sea beyond the median line every point of
which is equidistant from the nearest points on the baselines from which the breadth of
the territorial seas of each of the two States is measured. The above rule is subject to the
excep琀椀on of cases of historic 琀椀tle or other special circumstances to delimit the territorial
seas of the two States in a way which is at variance therewith.
2. Rights of States over Territorial Sea: although the coastal State exercises sovereignty over
the territorial sea, certain rights are also exercised by other States.
A. Rights of Coastal States: the sovereignty of the coastal States extends to the territorial
sea. Consequently, they have complete dominion over this part of the sea except that
of the right of innocent passage and transit by vessels of all na琀椀ons.
B. Rights of Other States: It is a customary rule of Interna琀椀onal law that territorial sea is
open to merchant vessels of all the States for naviga琀椀on. Such vessels have a right of
innocent passage through the territorial sea of a State. Thus, every State has the right
to demand that in 琀椀me of peace its merchantmen may ino昀昀ensively pass through the
territorial sea of every other State. This is a corollary of the freedom of the open sea.
Con琀椀guous Zone
The con琀椀guous zone is that part of the sea which is beyond and adjacent to the territorial
waters of the coastal State. The coastal State does not exercise sovereignty over this part of the
sea, however, it may take appropriate ac琀椀on to protect its revenue and like ma琀琀ers. In other
words, police and revenue jurisdic琀椀on of the coastal States extend to the con琀椀guous zone.
Geneva Conven琀椀on on Con琀椀guous Zone of 1958 recognized the right of the coastal States under
Ar琀椀cle 24, para I which says that ‘the coastal States may exercise the control necessary to
(a) Prevent infringement of its customs, 昀椀scal, immigra琀椀on or sanitary regula琀椀ons within its
territory or territorial sea;
(b) Punish infringement of the above regula琀椀ons commi琀琀ed within the territory or territorial sea.’
The Conven琀椀on of 1982 made similar provisions under Ar琀椀cle 33.
The limit of a con琀椀guous zone has been extended by the Conven琀椀on of 1982 which provided
under Para 2 of Ar琀椀cle 33 that it may not extend beyond twenty-four nau琀椀cal miles from the
baselines from which the breadth of the territorial sea is measured. Thus, the area of the
con琀椀guous zone would be 12 miles beyond the territorial sea.
Con琀椀nental Shelf
The concept of the con琀椀nental shelf is mainly co-related with the exploita琀椀on of the natural
resources from the sea adjacent to a territorial sea. It was therefore of li琀琀le importance un琀椀l the
exploita琀椀on of natural resources become technically possible. The concept acquired signi昀椀cance
when it was propounded by the U.S. President Truman on September 28, 1945, through two
proclama琀椀ons. Proclama琀椀ons, a昀琀er stressing the need for the recourse of petroleum and other
materials, laid down that such resources underlie in many parts of the con琀椀nental shelf of the
coasts of the United States and with the modern technological progress their u琀椀liza琀椀on is
possible.

lOMoARcPSD|28401756
De昀椀ni琀椀on and outer Limit of Con琀椀nental Shelf: The 1982 Conven琀椀on has de昀椀ned the term
con琀椀nental shelf under Para I of Ar琀椀cle 76 by sta琀椀ng that the con琀椀nental shelf of a coastal State
comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolonga琀椀on of its land territory to the outer edge of the con琀椀nental
margin, or to a distance of 200 nau琀椀cal miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the con琀椀nental margin does not extend up to
that distance.
High Seas (refer 5th ques琀椀on for more elabora琀椀on)

By the term, ‘high seas’ is meant under the customary rule of Interna琀椀onal Law that part of the
sea which is not included in the territorial waters. The rule was formulated in 1609 by Gro琀椀us in
his trea琀椀se Mare Liberum by arguing that the sea cannot be owned. According to him ‘the sea is
one of those things which is not an ar琀椀cle of merchandise, and which cannot become private
property’. Hence, it follows to speak strictly, that no part of the sea can be considered as the
territory of any people whatsoever. However, the regime of the high seas has been considerably
changed under the Conven琀椀on on the law of the Sea of 1982 which lays down under Ar琀椀cle 86
that all parts of the sea that are not included in the
 Exclusive economic zone
 Territorial sea
 Con琀椀guous Zone
 Con琀椀nental Shelf
 Internal waters of a state
 Archipelagic waters of an archipelagic State.
Thus, the area of the high seas has been substan琀椀ally reduced under the Conven琀椀on of 1982.
15. EXPLAIN THE PURPOSE AND PRINCIPLES OF UNITED NATIONS.

Answer: The failure of the League of Na琀椀ons on the one hand and the horror and ruthless
destruc琀椀on caused by the Second World War, on the other hand, disturbed many minds,
especially in Allied countries. They expressed the desire to establish peace even when the War
was in progress. In order to achieve it, fran琀椀c e昀昀orts to create an interna琀椀onal organisa琀椀on had
begun as early as in 1941. Delibera琀椀ons became intense a昀琀er the termina琀椀on of the war which
resulted in the crea琀椀on of the United Na琀椀ons Organisa琀椀on on October 24, 1945.
Purposes of the United Na琀椀ons

The purposes for which the United Na琀椀ons was established are laid down in Ar琀椀cle I of the
Charter. They are as follows:-
1. To maintain Interna琀椀onal Peace and Security:
The urgent and fundamental need at the 琀椀me of the crea琀椀on of the United Na琀椀ons was the
freedom from war and fear of war, and therefore, Ar琀椀cle I, Para 1 of the Charter provided that the
primary purpose of the UN shall be ‘to maintain interna琀椀onal peace and security’.
2. To Develop Friendly Rela琀椀ons among Na琀椀ons:
In order to prevent clashes between na琀椀ons, it was thought essen琀椀al to develop friendship
among na琀椀ons, i.e., friendship based on respect for the principles of the equal rights and the equal
rights of self-determina琀椀on of peoples.
3. To Achieve Interna琀椀onal Co-opera琀椀on:
Ar琀椀cle 1, Para 3 of the Charter lays down two purposes of the UN which are closely related to
each other. Firstly, to achieve ‘interna琀椀onal co-opera琀椀on’ in solving interna琀椀onal problems of an
economic, social, cultural or humanitarian character, and secondly, ‘interna琀椀onal co-opera琀椀on’ in
promo琀椀ng and encouraging respect for human rights, and fundamental freedoms for all without
dis琀椀nc琀椀on to race, sex, language or religion.

lOMoARcPSD|28401756
4. To make the United Na琀椀ons an Interna琀椀onal Forum for Harmonisa琀椀on:

The fourth purpose of the UN was laid down under Ar琀椀cle 1, Para 4 of the Charter which states
that the UN, being the principal World Organisa琀椀on shall serve as a ‘centre for harmonizing the
ac琀椀ons of na琀椀ons in order to achieve these common ends’. Thus, the UN is an interna琀椀onal forum
where World problems – bilateral, regional or global are discussed and it o昀琀en evolves global
policies for States to implement. The greatest advantage of this forum is that it represents the
en琀椀re interna琀椀onal community.
Principles of the United Na琀椀ons

Having set forth for the agreed purposes, the Charter laid down the basic principles under
Ar琀椀cle 2 on which the Organisa琀椀on is founded. These principles are the general obliga琀椀ons which
bind each Member State and the Organisa琀椀on as a whole. They are as follows:-
1. The Principle of Sovereign Equality: Ar琀椀cle 2, Para 1 of the Charter lays down that the UN is
based on the ‘sovereign equality of all its members’. It implies that all the members of the
United Na琀椀ons are equal irrespec琀椀ve of their size and resources. It may be noted that the
principle of sovereign equality is a principle of Interna琀椀onal Law which the Charter has simply
rea昀케rmed.
2. The Principle of the Ful昀椀lment of Obliga琀椀ons: Ar琀椀cle 2, Para 2 of the Charter lays down that
all members of the UN shall ful昀椀l in good faith the obliga琀椀ons assumed by them in accordance
with the Charter. This is also a basic principle of Interna琀椀onal Law which is known as pacta
sunt servanda.
3. The Principle of Peaceful Se琀琀lement of Interna琀椀onal Disputes: Ar琀椀cle 2, Para 3 of the Charter
provides that ‘all Members shall se琀琀le their interna琀椀onal disputes by peaceful means and in
such a manner that interna琀椀onal peace and security, are not endangered’.
4. The Principle of Non-use of Force: The Charter under Ar琀椀cle 2, Para 4 s琀椀pulates that all
members shall refrain in their interna琀椀onal rela琀椀ons from the use of force or threat of force
against the territorial integrity or poli琀椀cal independence of any State, or any other manner not
consistent with the independence of any State, or in any other manner not consistent with the
purposes of the UN.
5. The Principle of Assistance to the United Na琀椀ons: Ar琀椀cle 2, Para 5 of the Charter lays down
two ways by which a State against which the UN is taking ‘preven琀椀ve and enforcement
ac琀椀on’, and secondly, all the members shall support the Organisa琀椀on ‘in any ac琀椀on’ that it
takes in accordance with the ‘Charter’.
6. The Principle for the Non-Member States: Ar琀椀cle 2, Para 6 of the Charter lays down that the
obliga琀椀ons which are to be carried on by the non-members of the UN by sta琀椀ng that ‘the
Organisa琀椀on shall ensure that States which are not Members of the UN act in accordance with
these Principles so far as may be necessary to maintain interna琀椀onal peace and security.
7. Principle of Non-interven琀椀on in Domes琀椀c Ma琀琀ers of a State: Ar琀椀cle 2, Para 7 of the Charter
lays down that the UN shall not intervene in ma琀琀ers which are essen琀椀ally within the domes琀椀c
jurisdic琀椀on of any State, or compel any member to submit such ma琀琀ers to se琀琀lement by the
UN.
CASES
16. Immuni琀椀es and Privileges of Diploma琀椀c Agents.
A. A diplomat of State ‘X’ was arrested in state ‘Y’ on the charge of spying. State ‘X’ request for
return of the Diplomat. Discuss (Aug-18).
B. The diplomat of state ‘A’ was supplying weapons to a banned ou琀昀it in viola琀椀on of local laws,
in-state ‘B’. When he was in court, he claims diploma琀椀c immunity. Can he succeed? (May-17).
C. ‘A’ a foreign diplomat causes injury to ‘B’ in a road accident. ‘B’ wants to claim damages from
‘A’. Can he do so? (May-15).

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D. A diploma琀椀c agent commi琀琀ed a tra昀케c o昀昀ence. Can the local court try him in the state where
he is func琀椀oning? (Aug-13).
E. ‘X’ a diploma琀椀c agent takes a house rent and refused to pay the rent, can the house owner 昀椀le
a civil suit against the diploma琀椀c agent? (May-15).
F. A diploma琀椀c envoy represen琀椀ng state X in state Z. While shopping purchases a pair of shoes
in a store but refuses to pay the sales tax on the shoes. Examine the legal posi琀椀on. (July-
2012).
ISSUE:
Is the diplomat immune from local (Civil and Criminal) Jurisdic琀椀on? Yes.
Can the diplomat be arrested? No.
RULE:
Vienna Conven琀椀on of 1961 lays down the di昀昀erent immuni琀椀es and privileges which are granted
to the diploma琀椀c agents, one of the immunity is “immunity from the local jurisdic琀椀on”.
Ar琀椀cle 31, paragraph 1 of the Vienna Conven琀椀on provides immunity from the local jurisdic琀椀on.
Diploma琀椀c agents enjoy immunity from the jurisdic琀椀on of the local Courts. The immunity
extends to criminal jurisdic琀椀on as well as to civil and administra琀椀ve jurisdic琀椀on.
A. Criminal Jurisdic琀椀on: Ar琀椀cle 31, paragraph 1 of the Vienna Conven琀椀on provides that ‘a
diploma琀椀c agent shall enjoy immunity from the criminal jurisdic琀椀on of the receiving
State’. The above provisions conform to the customary rules of Interna琀椀onal Law. Thus,
receiving states have no right, in any circumstances whatever, to prosecute and punish
diploma琀椀c agents.
B. Immunity from Civil and Administra琀椀ve Jurisdic琀椀on: Diploma琀椀c agents are immune from
civil and administra琀椀ve jurisdic琀椀on is a well-recognized principle of Interna琀椀onal Law. No
civil ac琀椀on of any kind as regards debts and the like can be brought against them in the
civil court of the receiving State. They cannot be arrested for debts, nor can their
furniture, their cars, and the like, be seized for debts. They cannot be prevented from
leaving the country for not having paid their debts, nor can their passports be refused to
them on this account.
APPLICATION:
The example of George Gyllenborg, 1712 may be cited in this connec琀椀on. He was an
Ambassador of Sweden in England and he was arrested on the charge of conspiracy against
George I, the King of England, if a case is 昀椀led in a court against a diploma琀椀c agent, then it is not
necessary for him to present himself personally in the court. It is su昀케cient for him to send the
message that he is a representa琀椀ve of a sovereign State and is outside the jurisdic琀椀on of the
court. But if he does not take this ground and presents himself personally and uncondi琀椀onally in
the court then it will be deemed that he has waived his immunity and he will then be deemed to
be within the jurisdic琀椀on of the court.
CONCLUSION:
In the above-stated cases, the diplomats are immune from the civil and criminal jurisdic琀椀on of
the receiving state. They cannot be arrested and prosecuted. However, the Vienna Conven琀椀on
provides some excep琀椀ons to the Civil and Administra琀椀ve immunity, when the diplomat entering
into a contract for his personal use e.g. buying a property for his personal use, the immunity is not
available.
17. THE INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS, 1971.
A. State ‘A’ launches on earth satellite which falls on the territory of State ‘B’. State ‘A’ asks for
its return while State ‘B’ counter-claims for damage caused to its property.

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B. A satellite launched by ‘X’ state falls on the territory of state ‘Y’ and caused damage, is ‘X’
state interna琀椀onally liable for the damages caused to state? (May-2015).
C. State ‘A’ launches a satellite in outer space and the satellite while falling on the earth causes
damage to state ‘B’. Discuss the liability of state ‘A’. (July-2012).
ISSUE:
Is the launching state responsible for the damage caused by the satellite? Yes.
RULE:
The Conven琀椀on on Interna琀椀onal Liability for Damage Caused by Space Objects (1971): The
Conven琀椀on provided interna琀椀onal rules and procedures concerning the liability of launching
States for damage caused by their space objects. The Conven琀椀on under Ar琀椀cle 2 ensures prompt
and full compensa琀椀on for any damage caused by the space object on the surface of the earth or to
aircra昀琀 or aircra昀琀 in 昀氀ight. The expression damage has been de昀椀ned under Ar琀椀cle 1 which says
that damages mean loss of life, personal injury, impairment of health, loss or damage to property
of States or of persons, or property of inter-governmental organisa琀椀ons. If a space object has
been launched by more than one State they shall be jointly and severally liable for any damage
caused.
APPLICATION:
The falling of “Skylab” in July 1978 raised the ques琀椀on of applicability of Liability Conven琀椀on of
1971. Put in orbit in 1973 by NASA of America, it was expected to re-enter earth’s atmosphere in
1980. It fell well in advance in July 1979. Though causing panic in India and abroad, it, in fact, fell
in the sea causing no damage to any country. Moreover, irrespec琀椀ve of the fact whether a state
was a party to the conven琀椀on or not, every state is responsible for the damage caused by its space
objects. American President had o昀昀ered well in advance to pay compensa琀椀on for any damage
caused by the falling of ‘Skylab’. Even the absence of such an o昀昀er America would have been
interna琀椀onally liable under the customary interna琀椀onal law for any damage caused.
CONCLUSION:
In the above case, the launching State is responsible and should compensate for the loss caused
by its space objects, the payment of compensa琀椀on should be prompt and full.
18. INDIRECT STATE RESPONSIBILITY.

A. ‘X’, who is a ci琀椀zen of State ‘A’ while on a tour on the territory of State ‘B’ was killed by a mob
during the local riots. Examine the liability of State ‘B’. (May-2016).
B. A, a foreign ci琀椀zen is injured in an unan琀椀cipated mob a琀琀ack, in the country X. Can the Y, the
country to which A belongs claim damages from X? (May-2014).
ISSUE:
Is State ‘B’ responsible for the death of ‘X’? Yes.
Under which rule State ‘B’ is responsible? Under indirect state responsibility.
RULE: (AS PER INTERNATIONAL LAW COMMISSION, ARTICLE 2)

Under indirect State responsibility, it is an obliga琀椀on of a State to prevent its own subjects as
well as foreign subjects living within its territory from commi琀�ng such acts which may cause
injury to other States.
A State is responsible for the damage caused by a group of individuals or by a mob.
Responsibility of a State for mob violence may arise in two ways.
Firstly, a State shall be responsible if foreign public or private property is damaged by the mob
violence due to substan琀椀al neglect to take reasonable precau琀椀onary or preven琀椀ve ac琀椀on. In

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other words, the responsibility of a State arises where a State has not taken due diligence to
prevent the mob-violence.
Secondly, State is also responsible where mob violence takes place due to the indi昀昀erent a琀�tude
of its organs, i.e., if the wrongful act is done with the connivance of its organs.
APPLICATION:
The case concerning the United States Diploma琀椀c and Consular Sta昀昀 in Tehran which involved the
acts of rioters and other militants who a琀琀acked and occupied U.S. diploma琀椀c and consular
premises in Iran. The rioters and militants also seized the occupants and held them as hostages.
The Interna琀椀onal Court of Jus琀椀ce held Iran responsible for the acts of the militants on the U.S
Embassy.
CONCLUSION:
In the given case the State ‘B’ is responsible for the death of ‘X’ under indirect responsibility
and should compensate for the death of ‘X’.
19. EXTRADITION.
A. ‘X’ sought the extradi琀椀on of ‘A’ who is accused of an o昀昀ence in state ‘X’ but is not an o昀昀ence
in state ‘Y’ to which ‘A’ escaped. Is extradi琀椀on allowed? (May-2014).
B. A person commits an o昀昀ence on the territory on state B and 昀氀ees to state A. Examine the
legal possibili琀椀es for extradi琀椀on. (July-2012).
C. State ‘A’ obtains the custody of an accused person who took refuge in state ‘B’, and by
extradi琀椀on but by means involving a viola琀椀on of the law of the la琀琀er state. Can he plead that
this circumstance cons琀椀tutes a bar to his trail in the farmer state? (July-2019).
ISSUE:
Can State ‘X’ succeeds in extradi琀椀ng accused ‘A’? No
Why State ‘X’ cannot extradite ‘A’? Because of the lack of ‘double criminality’.
RULE:
Presently, in the absence of any mul琀椀lateral treaty or Conven琀椀on, extradi琀椀on is done by States
on the basis of bilateral trea琀椀es. Bilateral trea琀椀es, na琀椀onal laws of several States, and the judicial
decisions of municipal courts led to developing certain principles regarding extradi琀椀on which are
deemed as general rules of Interna琀椀onal Law. Important amongst them are as follows:
1. Extradi琀椀on Trea琀椀es: The 昀椀rst and the foremost important condi琀椀on of extradi琀椀on is the
existence of an extradi琀椀on treaty between the territorial State and the reques琀椀ng State.
Some states, such as the United States, Belgium and the Netherlands, require a treaty as
an absolute pre-condi琀椀on. The strict requirement of an extradi琀椀on treaty may be
regarded as the most obvious obstacle to interna琀椀onal coopera琀椀on in the suppression of
crimes.
2. Extradi琀椀on of Poli琀椀cal O昀昀enders: It is a customary rule of Interna琀椀onal Law that poli琀椀cal
o昀昀enders are not extradited. In other words, they are granted asylum by the territorial
State.
3. The Doctrine of Double Criminality: The doctrine of double criminality, also known as dual
criminality, denotes that a crime must be an o昀昀ence recognized in the territorial as well as
in the reques琀椀ng State. No person is extradited unless this condi琀椀on is ful昀椀lled. The
doctrine appears to be based on the considera琀椀on that it would o昀昀end that conscience of
the territorial State if it has to extradite a person when its own law does not regard him a
criminal. The reques琀椀ng State would also not ask for the surrender of a person for those
crimes which are not recognized in its State. The doctrine thus sa琀椀s昀椀es double purpose. It

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helps the reques琀椀ng State to enforce its criminal law, and to the territorial State in the
sense that the rule protects it from fugi琀椀ve criminals.
The rule of double criminality has put a State into a di昀케cult situa琀椀on when it has to
request another State for extradi琀椀on in respect of those o昀昀ences which do not 昀椀nd a place
in the list of crimes embodied in a treaty. In order to overcome the above di昀케culty it is
desirable that instead of laying down the names of various crimes speci昀椀cally in the
trea琀椀es, some general criterion should be adopted. For instance, any o昀昀ence punishable
with a de昀椀nite minimum penalty under the laws of both the States should eligible a
person for extradi琀椀on appears to be more appropriate.
4. Rule of Speciality: According to this principle, a fugi琀椀ve may be tried by the reques琀椀ng
State only for that o昀昀ence for which he has been extradited. In other words, the
reques琀椀ng State is under a duty not to try or punish the fugi琀椀ve criminal for any other
o昀昀ence than that for which he has been extradited unless he has given an opportunity to
return to the territorial State. The rule has been made to provide safeguard to the
fugi琀椀ves against fraudulent extradi琀椀on. The rule of speciality is an established principle of
interna琀椀onal law rela琀椀ng to extradi琀椀on.
5. Prima Facie Evidence: There should be a prima facie evidence of the guilt of the accused.
Before a person is extradited, the territorial State must sa琀椀sfy itself that there is a prima
facie evidence against the accused for which extradi琀椀on is demanded. The purpose of
laying down the rule of prima facie evidence is to check the fraudulent extradi琀椀on.
6. Time-barred Crimes: A fugi琀椀ve criminal shall not be surrendered, if he has been tried and
has served sentence for the o昀昀ence commi琀琀ed in the territorial State. Thus, extradi琀椀on is
not granted if the o昀昀ence for which extradi琀椀on has to be made has become 琀椀me-barred.
7. Extradi琀椀on of Own Na琀椀onals: In many cases, a person a昀琀er commi琀�ng a crime in a
foreign country 昀氀ees back to his own country. Whether a State would extradite such
persons, i.e., its own na琀椀onals, to a State where crime has been commi琀琀ed is a
controversial point and prac琀椀ce of States considerably di昀昀ers on it. Na琀椀onals may be
extradited if there is no bar in the na琀椀onal extradi琀椀on law or the treaty.
8. Military O昀昀enders: Extradi琀椀on trea琀椀es generally exclude military o昀昀ences. Broadly,
military o昀昀ences fall into two categories, i.e., those which cons琀椀tute o昀昀ences under
ordinary criminal law and those which relate speci昀椀cally to military ma琀琀ers. Only the
second category quali昀椀es as military o昀昀ences in respect of which extradi琀椀on will not
apply.
9. For religious crimes also persons are not extradited.
10. For extradi琀椀on, it is also necessary that certain other prescribed formali琀椀es should be
ful昀椀lled.
APPLICATION:
Veer Savarkar case (1911): Savarkar was an Indian revolu琀椀onary who was being brought to
India to be prosecuted on the ground of crimes which he was alleged to have commi琀琀ed. When
the ship was in the port of Marcelese, Savarkar escaped, but later on, he was apprehended by
French police. But the Captain of the French ship returned Savarkar to the Captain of the Bri琀椀sh
ship.
Sucha Singh’s case: Sucha Singh was accused of murdering Pratap Singh Kairon, the former
Chief Minister of Punjab and had 昀氀ed away to Nepal and on the request of the Government of
India, the Government of Nepal a昀琀er star琀椀ng proceedings against him in accordance with the law
of Nepal, extradited him.
CONCLUSION:
Case A: In this case, the essen琀椀al rule of ‘double criminality’ is missing and extradi琀椀on is not
possible.

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Case B: In this case, for extradi琀椀on, the essen琀椀als what we have discussed under ‘Rules” should
be followed, like extradi琀椀on treaty, double criminality etc.
20. DIPLOMATIC ASYLUM.

A. ‘X’ a poli琀椀cal rebel of state ‘A’. The ambassador refused to hand over ‘X’ to state ‘A’ can
asylum be granted to ‘X’. (Aug-2018).
B. ‘X’ a na琀椀onal of country ‘Y’ a昀琀er commi琀�ng a criminal o昀昀ence take shelter in ‘A’s diploma琀椀c
o昀케ce, which is in ‘Y’ country. Can A’s country diplomat give asylum to ‘X’? (May-15).
ISSUE:
Can an ambassador provide asylum? Yes.
Can asylum be provided in embassy premises? Yes, can be provided.
What kind of asylum it is called? It is called as an extra-territorial asylum.
RULE:
 Universal Declara琀椀on of Human Rights under Ar琀椀cle 14 (Para 1) lays down that ‘everyone
has a right to seek and to enjoy in other countries asylum from persecu琀椀on’.
 General Assembly of United Na琀椀ons unanimously adopted a resolu琀椀on in 1967 en琀椀tled a
Declara琀椀on on Territorial Asylum which states that ‘no one shall be subjected to measures
such as rejec琀椀on at the fron琀椀er, expulsion, or compulsory return to any State where he
may be subjected to persecu琀椀on.
APPLICATION:
When asylum is granted by a State on its territory, it is called territorial asylum and when
asylum is granted by a State at places outside its own territory, it is called extra-territorial asylum.
Thus, asylum given at lega琀椀ons, consular premises, and warships are instances of extra-territorial
asylum.
When asylum is granted by a State within its embassy premises situated in foreign countries, it
is known as an asylum in lega琀椀on or diploma琀椀c asylum. Diploma琀椀c asylum is based on the
considera琀椀on that embassy premises are regarded to be outside the jurisdic琀椀on of the territorial
State, and therefore it is inviolable. The Head of the mission may grant asylum to a person on the
premises. However, asylum may be granted to individuals in lega琀椀on premises in the following
cases:
Firstly, as a temporary measure, to individuals physically in danger from a mob or the fear of the
government. It implies that asylum is given to a person whose life has become unsecured. But it
is granted as a temporary measure.
Secondly, it is granted by those States where there is a binding local custom in this regard, and
Thirdly, when there is a treaty between the territorial State and the State which is represented by
the lega琀椀on concerned.
CASE: Over summer 2012, tensions accumulated in the rela琀椀ons between Ecuador and the United
Kingdom, and almost lead to a diploma琀椀c disaster. But this is not a dispute between just two
States, it may well be seen as a clash between ideologies and two fronts, i.e. between States
which recognise or reject the right to grant diploma琀椀c asylum. The centrepiece of this quarrel is
Julian Assange, an Australian best known as the founder, spokesman and editor-in-chief of
WikiLeaks.
Since November 2010, Assange is wanted by the Swedish authori琀椀es in rela琀椀on to a rape and
sexual assault inves琀椀ga琀椀on. Because he was living in the United Kingdom when the European
Arrest Warrant was issued, they applied for the extrac琀椀on of Assange to Sweden. He decided to
昀椀ght against the extradi琀椀on, but his steps were unsuccessful on all levels. Finally, on 14 June 2012,
Assange had exhausted all remedies available in the United Kingdom, but the decision to extradite
him to Sweden remained in force. He was given 14 days to appeal to the European Court of

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Human Rights, but he decided to pursue an unusual alterna琀椀ve. On 19 June, Assange entered the
Ecuadorian embassy where he asked for the protec琀椀on of the Ecuadorian government. The la琀琀er
informed, on the same day, the Bri琀椀sh government that it was considering Assange’s request. On
16 August, Ecuador informed the world that they have decided to grant Assange diploma琀椀c
asylum.
CONCLUSION:
In the above case, the diplomat can give asylum to ‘X’ in his Embassy premises under extra-
territorial jurisdic琀椀on and he can refuse to handover ‘X’ to State ‘A’.
21. DE FACTO AND DE-JURE RECOGNITION.

A. The Government of State ‘A’ is overthrown and the rebels establish a new Government. State
‘B’ con琀椀nues to recognize the old Government as de-jure Government but accords de facto
recogni琀椀on to the new Government. The new Government 昀椀les a suit in State ‘B’ against a
bank for recoveries certain money belongs to it as the lawful representa琀椀on of the State. How
would you decide? (July-2019).
B. A newly formed de facto government claimed that its rights and status would prevail over a
displaced de-jure government. The de-jure government opposed the claim of de facto
government, decide? (Aug-2018).
ISSUE:
Are both the de facto and de-jure recogni琀椀on similar regarding economic, poli琀椀cal and trade
ma琀琀ers? Yes.
RULE:
It is to be noted that by gran琀椀ng de facto recogni琀椀on to a State, the recognizing State secures
certain advantages especially economic. It enables it to protect the interests of its ci琀椀zens in the
de facto recognized State. Further, it also enables the recognizing State to acknowledge the
external facts of poli琀椀cal power, and protect its interest and trade in the de facto recognized
State.
APPLICATION:
In Luther v. Sagor, it was laid down that there is no dis琀椀nc琀椀on between de facto and de-jure
recogni琀椀on for the purpose of giving e昀昀ect to the internal acts of the recognised authority. This
rule has been applied in numerous cases.
The above case is similar to the case of Bank of Ethiopia v. Na琀椀onal Bank of Egypt and Liguori,
the Court held that in view of the fact that the Bri琀椀sh Government recognised the Italian
Government as being the de facto government of the area of Abyssinia then under Italian Control,
an e昀昀ect must be given to an Italian decree in Abyssinia dissolving the plain琀椀昀昀 bank and
appoin琀椀ng a liquidator. Further, immunity in the Courts of recognising State, and a State’s
interna琀椀onal responsibility for wrongful acts remain the same whether it is ruled by a de facto or a
de-jure Government.
CONCLUSION:
In the given case State ‘A’ will recover the due amounts, for 昀椀nancial transac琀椀ons there is no
di昀昀erence between de-facto and de-jure recogni琀椀on.

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FACULTY OF LAW, OSMANIA UNIVERSITY
SYLLABUS OF LL.B. (3YDC) THREE-YEAR DEGREE COURSE
WITH EFFECT FROM 2009-2010
LL.B. IV SEMESTER
PAPER-I: LABOUR LAW-II
Unit-I:The Remunerative Aspects – Wages – Concepts of wages - Minimum, Fair, Living Wages - Wage and
Industrial Policies - Whitley Commission Recommendations -Provisions of Payment of Wages Act 1936 - Timely
payment of wages - Authorized deductions – Claims - Minimum Wages Act 1948 - Definitions - Types of wages -
Minimum rates of wages - Procedure for fixing and revising Minimum Wages – Claims -Remedy.
Unit-II: Bonus – concept - Right to claim Bonus – Full Bench formula - Bonus Commission - Payment of Bonus
Act 1965 - Application – Computation of gross profit, available, allocable surplus - Eligibility of Bonus -
Disqualification of Bonus - set on – set off of allocable surplus- Minimum and Maximum Bonus-Recovery of
Bonus.
Unit-III: Employees Security and Welfare aspect - Social Security - Concept and meaning - Social Insurance -
Social Assistance Schemes. Social Security Legislations - Law relating to workmen’s compensation - The
Workmen’s Compensation Act 1923 – Definitions -Employer’s liability for compensation - Nexus between injury
and employment - payment of compensation - penalty for default - Employees State Insurance Act 1948 –
Application - Benefits under the Act - Adjudication of disputes and claims – ESI Corporation.
Unit-IV: Employees Provident Fund and Miscellaneous Provisions Act 1952 – Contributions -Schemes under the
Act - Benefits. The Maternity Benefit Act 1961 - Definitions-Application - Benefits. The Payment of Gratuity Act
1972 – Definitions – application - Payment of gratuity - eligibility – forfeiture – Nomination - Controlling
authorities.
Unit-V: The Factories Act 1948 - Chapters dealing with Health, Safety and Welfare of Labour. Child Labour -
Rights of child and the Indian Constitution - Salient features of the Child Labour (Prohibition and Regulation) Act
1986.
Suggested Readings
1. S.N.Misra, Labour and Industrial Laws, Central law publication-22nd edition. 2006.
2. N.G. Goswami, Labour and Industrial Laws, Central Law Agency.
3. Khan & Kahan, Labour Law-Asia Law house, Hyderabad
4. K.D. Srivastava, Payment of Bonus Act, Eastern Book Company
5. K.D. Srivastava, Payment of Wages Act

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6. K.D. Srivastava, Industrial Employment (Standing Orders) Act 1947
7. S.C.Srivastava, Treatise on Social Security
8. Jidwitesukumar Singh, Labour Economics, Deep& Deep, New Delhi
9. V.J.Rao, Factories Law
PAPER-II:PUBLICINTERNATIONAL
LAW Unit-I: Definition, Nature, Scope
and Importance of International Law — Relation of International Law to Municipal Law — Sources of International
Law — Codification.
Unit-II: State Recognition — State Succession — Responsibility of States for International delinquencies —
State Territory — Modes of acquiring State Territory
Unit-III: Position of Individual in International Law — Nationality — Extradition — Asylum — Privileges and
Immunities of Diplomatic Envoys — Treaties – Formation of Treaties - Modes of Consent, Reservation and
termination.
Unit-IV: The Legal Regime of the Seas – Evolution of the Law of the Sea – Freedoms of the High Seas – Common
Heritage of Mankind – United Nations Convention on the Law of the Seas – Legal Regime of Airspace – Important
Conventions relating to Airspace – Paris, Havana, Warsaw and Chicago Conventions – Five Freedoms of Air –
Legal Regime of Outer space – Important Conventions such as Outer space Treaty, Agreement on Rescue and
Return of Astronauts, Liability Convention, Agreement on Registration of Space objects, Moon Treaty - Uni space.
Unit-V: International Organizations — League of Nations and United Nations — International Court of Justice
—International Criminal Court - Specialized agencies of the UN — WHO, UNESCO, ILO, IMF and WTO.
Suggested Readings:
1. J.G. Starke: Introduction to International Law, Aditya Books, 10th Edition, 1989.
2. J.I. Brierly: The Law of Nations, Oxford Publishers, London.
3. Ian Brownlie: Principles of Public International Law, Oxford Publishers,
London.
4. S.K. Kapoor, Public International Law, Central Law Agencies, Allahabad.
5. H.O. Agarwal, International Law and Human Rights, Central Law Publications, Allahabad.
6 S.K. Verma, An Introduction to Public International Law, Prentice Hall of India.
PAPER-III: interpretation of statutes

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Unit-I: Meaning and Definition of Statutes — Classification of Statues — Meaning and Definition of
Interpretation — General Principles of Interpretation — Rules of Construction under the General Clauses Act, 1897.
Unit-II: Grammatical Rule of Interpretation — Golden Rule of Interpretation – Rule of Interpretation to avoid
mischief.
Unit-III: Interpretation of Penal Statutes and Statutes of Taxation — Beneficial Construction — Construction to
avoid conflict with other provisions — Doctrine of Harmonious Construction.
Unit-IV: External Aids to Interpretation — Statement of objects of legislation, Legislative debates, identification
of purpose sought to be achieved through legislation — Internal Aids to Interpretation — Preamble, title,
interpretation clause, marginal notes, explanations etc. — Presumptions.
Unit-V: Effect of Repeal — Effect of amendments to statutes — Conflict between parent legislation and
subordinate legislation — Methods of interpreting substantive and procedural laws.
Suggested Readings:
1. Vepa P. Sarathi: Interpretation of Statutes, Eastern Book Co, 4th Edition, 1976.
2. Maxwell: Interpretation of Statutes, Butterworths Publications, 1976, 12th
Edition.
3. Crawford: Interpretation of Statutes, Universal Publishers.
4 Chatterjee: Interpretation of Statutes.
5. G.P. Singh: Principles of Statutory Interpretation, Wadhwa and Company, 8th Ed., 2001.
6. Cross, Statutory Interpretation
PAPER-IV: land laws
Unit-I: Classification of lands — Ownership of Land — Absolute and limited ownership (tenancy, lease etc.) —
Doctrine of Eminent Domain — Doctrine of Escheat - Doctrine of Bona Vacantia — Maintenance of land records
and issue of Pattas and Title Deeds etc.
Unit-II: Law Reforms before and after independence — Zamindari Settlement — Ryotwari Settlement —
Mahalwari System — Intermediaries — Constitutional Provisions — Abolition of Zamindaries, Jagirs and Inams —
Tenancy Laws — Conferment of ownership on tenants/Ryots.
Unit-III: Laws relating to acquisition of property — Land Acquisition Act of 1894 (Issue of notifications, Award
enquiry, Payment of compensation & Reference to civil courts etc.) The Land Acquisition and Requisition Act.
Unit-IV: Laws relating to Ceiling on Land Holdings — A.P. Land Reforms (Ceiling on Agricultural Holdings)
Act, 1973 — Effect of inclusion in the IX Schedule of the Constitution — Interpretation of Directive Principles of
State Policy — The Urban Land (Ceiling on Holdings) Act, 1976.
Unit-V: Laws relating to alienation — A.P. Scheduled Areas Land Transfer Regulation 1959 — A.P. Assigned
Lands (Prohibition of Transfers) Act, 1977-Resumption of Lands to the Transferor/Government - A.P. Land
Grabbing (Prohibition) Act.

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Suggested Readings:
1. P. Rama Reddi and P. Srinivasa Reddy : Land Reform Laws in A.P., Asia Law House. 5th Ed. Hyderabad.
2. P.S. Narayana: Manual of Revenue Laws in A.P., Gogia Law Agency, 6th Ed. 1999, Hyderabad.
3. Land Grabbing Laws in A.P., Asia Law House, 3rd Ed. 2001, Hyderabad.
4. G.B. Reddy: Land Laws in A.P., Gogia Law Agency, Hyderabad, 1st Edition, 2001.
PAPER-V:Intellectual property law
Unit-I: Meaning, Nature, Classification and protection of Intellectual Property — The main forms of Intellectual
Property — Copyright, Trademarks, Patents, Designs (Industrial and Layout) -- Geographical Indications - Plant
Varieties Protection and Biotechnology.
Unit-II: Introduction to the leading International instruments concerning Intellectual Property Rights — The
Berne Convention — Universal Copyright Convention — The Paris Union — Patent Co-operation Treaty -- The
World Intellectual Property Organization (WIPO) and the UNEESCO, International Trade Agreements concerning
IPR — WTO — TRIPS.
Unit-III : Select aspects of the Law of Copyright in India — The Copy Right Act, 1957 - Historical evolution —
Meaning of copyright — Copyright in literary, dramatic and musical works, computer programmes and
cinematograph films — Neighboring rights — Rights of performers and broadcasters, etc. — Ownership and
Assignment of copyright — Author's special rights — Notion of infringement — Criteria of infringement —
Infringement of copyright in films, literary and dramatic works — Authorities under the Act — Remedies for
infringement of copyright.
Unit-IV: Intellectual Property in Trademarks and the rationale of their protection - The Trade Marks Act, 1999 —
Definition of Trademarks — Distinction between Trademark and Property Mark - Registration — Passing off —
Infringement of Trademark — Criteria of Infringement — Remedies. The Designs Act, 2000 — Definition and
characteristics of Design — Law in India — Protection and rights of design holders — Copyright in design —
Registration — Remedies for infringement.
Unit-V: Patents — Concept of Patent — Historical overview of the Patents Law in India — Patentable Inventions
— Kinds of Patents — Procedure for obtaining patent — The Patents Act, 1970 — Rights and obligations of a
patentee — Term of patent protection — Use and exercise of rights — Exclusive Marketing Rights — Right to
Secrecy — The notion of ‘abuse’ of patent rights — Infringement of patent rights and remedies available.
Suggested Readings:
1. P. Narayanan: Patent Law, Eastern Law House, 1995.
2. Roy Chowdhary, S.K. & Other: Law of Trademark, Copyrights, Patents and Designs,Kamal Law House, 1999.
3.Dr. G.B. Reddy, Intellectual Property Rights and the Law 5th Ed. 2005 GogiaLaw Agency.

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4.John Holyoak and Paul Torremans: Intellectual Property Law.
5.B.L. Wadhera: Intellectual Property Law, Universal Publishers, 2nd Ed. 2000.
6. W.R. Cornish: Intellectual Property Law, Universal Publishers, 3rd Ed. 2001.

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INTERPRETATION OF STATUTES
LLB 4 t h SEMESTER

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SNO IMPORTANT SHORT QUESTIONS

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1 MEANING OF LITERAL RULE (GRAMMATICAL, PLAIN, NATURAL, ORDINARY AND POPULAR)

AND ITS STRENGTHS AND WEAKNESSES
2 HARMONIOUS CONSTRUCTION
3 INTERPRETATION CLAUSE
4 CONSEQUENCES OF REPEAL (EFFECT OF REPEAL)
5 INTERPRETATION OF SUBSTANTIVE AND PROCEDURAL (ADJECTIVE) LAWS
6 RULES OF CONSTRUCTION UNDER THE GENERAL CLAUSES ACT, 1897

7 GENERAL PRINCIPLES OF INTERPRETATION
EJUSDEM GENERIS (of the same kind); STATUTE MUST BE READ AS A WHOLE
(EXVISCERIBUS ACTUS); NOSCITUR A SOCIIS. [La琀椀n, it is known by its associates]
8 GOLDEN (LOGICAL) RULE OF INTERPRETATION. HOW IS IT DIFFERENT FROM
GRAMMATICAL RULE?
9 MISCHIEF RULE AND ITS IMPORTANCE (HEYDON'S RULE)
10 RULE OF STRICT CONSTRUCTION OF PENAL STATUTES, ITS STRENGTHS AND WEAKNESSES
11 BENEFICIAL (LIBERAL) CONSTRUCTION, WITH ILLUSTRATIONS.
12 INTERNAL AIDS OF INTERPRETATION OF STATUTES (PREAMBLE IMPORTANT)
13 EXTERNAL AIDS TO INTERPRETATION OF STATUTES (IMP - LEGISLATIVE DEBATES,
REFERENCE TO STATUTES IN PARI MATERIA)
14 WHAT ARE THE WAYS TO RESOLVE A CONFLICT BETWEEN PARENT LEGISLATION AND
SUBORDINATE LEGISLATION?
IMPORTANT CASES
15 GRAMMATICAL INTERPRETATION
16 PROSTITUTES SOLICITING THE PASSERSBY FROM BALCONIES AND WINDOWS OF THEIR
HOUSES
17 WHETHER A STUDENT IS A CONSUMER OR NOT?
18 RULE OF STRICT CONSTRUCTION OF PENAL STATUTES (TOLARAM Vs. THE STATE OF
BOMBAY) (SECTIONS 82 & 83 OF IPC)
19 CONSEQUENCES OF REPEAL (EFFECT OF REPEAL)
20 INCONSISTENCY BETWEEN SUBSTANTIVE LAW AND PROCEDURAL LAW, WHICH WILL
PREVAIL?
PAPER-III: INTERPRETATION OF STATUTES SYLLABUS

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Unit-I: Meaning and De昀椀ni琀椀on of Statutes — Classi昀椀ca琀椀on of Statues — Meaning and

De昀椀ni琀椀on of Interpreta琀椀on — General Principles of Interpreta琀椀on — Rules of
Construc琀椀on under the General Clauses Act, 1897.
Unit-II: Gramma琀椀cal Rule of Interpreta琀椀on — Golden Rule of Interpreta琀椀on – Rule of

Interpreta琀椀on to avoid mischief.
Unit-III: Interpreta琀椀on of Penal Statutes and Statutes of Taxa琀椀on — Bene昀椀cial

Construc琀椀on — Construc琀椀on to avoid con昀氀ict with other provisions — Doctrine of
Harmonious Construc琀椀on.
Unit-IV: External Aids to Interpreta琀椀on — Statement of objects of legisla琀椀on, Legisla琀椀ve

debates, iden琀椀昀椀ca琀椀on of purpose sought to be achieved through legisla琀椀on — Internal
Aids to Interpreta琀椀on — Preamble, 琀椀tle, interpreta琀椀on clause, marginal notes,
explana琀椀ons etc. — Presump琀椀ons.
Unit-V: E昀昀ect of Repeal — E昀昀ect of amendments to statutes — Con昀氀ict between parent

legisla琀椀on and subordinate legisla琀椀on — Methods of interpre琀椀ng substan琀椀ve and
procedural laws.
Suggested Readings: 1. Vepa P. Sarathi: Interpreta琀椀on of Statutes, Eastern Book Co, 2.

Maxwell: Interpreta琀椀on of Statutes, Bu琀琀erworths Publica琀椀ons 3. Crawford: Interpreta琀椀on
of Statutes, Universal Publishers. 4 Cha琀琀erjee: Interpreta琀椀on of Statutes. 5. G.P. Singh:
Principles of Statutory Interpreta琀椀on, Wadhwa and Company, 6. Cross, Statutory
Interpreta琀椀on, LexisNexis.
SHORT ANSWERS
1. MEANING OF LITERAL (GRAMMATICAL, PLAIN, NATURAL, ORDINARY AND POPULAR) RULE,

ITS STRENGTHS AND WEAKNESSES.

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ANSWER: Meaning of Grammatical/Literal Rule:

Gramma琀椀cal/Literal rule of interpreta琀椀on is the primary rule of interpreta琀椀on. The 昀椀rst
interpreta琀椀on is literal or gramma琀椀cal interpreta琀椀on. The epithets ‘natural’, ‘literal’,
‘gramma琀椀cal’ and ‘popular’ are employed almost interchangeably.
Literal Rule is where the Judges interpret the legisla琀椀on that the Parliament has passed. Here
the Judges rely on the exact wording of the statute for the case. They don’t interpret meaning.
Gramma琀椀cal interpreta琀椀on is an elementary principle of interpreta琀椀on that the plain inten琀椀on
of the legislature as expressed by the language employed is to be accepted and given e昀昀ect to.
In the case of gramma琀椀cal interpreta琀椀on, only the verbal expression of law is taken into
considera琀椀on and the Courts do not go beyond what is expressed by words. The dictate of words
is known as ‘litra legis’. The gramma琀椀cal or literal construc琀椀on is totally con昀椀ned to the words or
expressions used in the language of the statute. It does not look beyond what has been stated.
The consequence is no considera琀椀on. It remains 昀椀rm on the le琀琀er of law even if injus琀椀ce or
hardship is caused.
Definition of Literal Rule:

Bre琀琀 M.R. called the literal rule as a ‘cardinal rule’ that “wherever you have to construe a
statute or document you do no construe it according to the mere ordinary general meaning of the
words, but according to the ordinary meaning of the words as applied to the subject-ma琀琀er with
regard to which they are used”.
Generally, the Courts must take it for granted that what Legislature has said. Courts have no
liberty to add to or take from or modify the le琀琀er of the law.
Viscount Simon LC says, “The natural and ordinary meaning of words should not be departed
from unless it can be shown that the legal context in which the words are used requires a di昀昀erent
meaning”.
The term ‘gramma琀椀cal construc琀椀on’ was used by Salmond. He explains, interpreta琀椀on is of
two kinds, which may be dis琀椀nguished as ‘literal’ and ‘func琀椀onal’. The literal interpreta琀椀on is that
which regards exclusively the verbal expression of the law. It does not look beyond the ‘literal
legis’ (le琀琀er of Law). Func琀椀onal interpreta琀椀on, on the other hand, is that which departs from the
le琀琀er of the law and seeks elsewhere for some other and more sa琀椀sfactory evidence of the true
inten琀椀on of the legislature. It is essen琀椀al to determine with accuracy the rela琀椀on which subsists
between these two methods, in other words, we have to determine the rela琀椀ve claims of the
le琀琀er and spirit (legisla琀椀ve intent and, object of statute) of enacted law.
Eight rules of Grammatical/Literal Rule

Under gramma琀椀cal/Literal rule the Judge considers what the statute actually says rather than
what it might mean. The following “Eight Rules” are the heart or centre of all the gramma琀椀cal
interpreta琀椀on:
1. De昀椀ne the terms or words being considered and then adhered to the de昀椀ned meanings;
2. Do not add meaning to established words and terms. What was the common usage in the
culture and 琀椀me period when the passage was wri琀琀en;
3. Avoid using words or phrases out of context. The context must de昀椀ne terms and how
words are used;
4. Do not separate interpreta琀椀on and historical inves琀椀ga琀椀on;
5. Be certain that words as interpreted agree with the overall premise;
6. Use the known and commonly accepted meanings of words, not obscure meanings for
which there are no precedent;
7. Even though many documents may be used there must be general unity among them;
8. Base conclusions on what is already known and established or can be reasonably from all
known facts.
Where the meaning of the statutory word is plain and unambiguous it is not then for the Judges
to invent fancied ambigui琀椀es as an excuse for failing to give e昀昀ect to its plain meaning because

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they consider the consequences for doing so would be inexpedient (not advantageous), or even
unjust or immoral.
Examples of Grammatical/Literal Rule

Fisher v. Bell, under the Restric琀椀ve of O昀昀ensive Weapons Act, 1959, it is an o昀昀ence to o昀昀er for
sale certain o昀昀ensive weapons including 昀氀ick knives. James Bell, a Bristol Shopkeeper, displayed a
weapon of this type in his shop window in the arcade a Broadmead. The Divisional Court held that
he could not be convicted because giving the words in the statute a light literal meaning. Bell had
not o昀昀ered the knives for sale. In the Law of Contracts, placing something in a shop window is not
technically an o昀昀er for sale; it is merely an invita琀椀on to o昀昀er. It is the customer who makes an
o昀昀er to the shopkeeper.
R. v. Harris, where the defendant bit the nose of the vic琀椀m. The statute stated the o昀昀ence was
‘to stab or wound’. Under the Literal Rule, bi琀椀ng is not stabbing, cu琀�ng or wounding (implying
the use of an instrument). The defendant was proven not guilty.
Advantages of literal/grammatical rule:

1. When the literal rule applied, there is no scope for the Judges’ own opinions or prejudices
to interfere.
2. The literal rule respects parliamentary supremacy and upholds the separa琀椀on of power.
3. The literal rule encourages dra昀琀ing precision, promotes certainty and reduces li琀椀ga琀椀on.
Disadvantages of literal/grammatical rule:

1. The gramma琀椀cal rule fails to recognise that the English language itself is ambiguous and
that words may have di昀昀erent meanings in di昀昀erent contexts.
2. The use of gramma琀椀cal rule can some琀椀mes lead to absurdi琀椀es and loopholes which can be
exploited by an unmeritorious li琀椀gant.
3. Judges have tended to over-emphasize the literal meaning of statutory provisions without
giving due weight to their meaning in a wider context.
4. Emphasizing the literal meaning of words assumes an unobtainable perfec琀椀on in
dra昀琀smanship.
5. It ignores the limita琀椀ons of language.
6. Some琀椀mes applica琀椀on of the literal rule may lead to injus琀椀ce. For example, in London
and North Eastern Railway Co. v. Berriman, a railway worker was killed whilst oiling a
track. Under the statute, compensa琀椀on is provided on the death of workers ‘replacing or
relaying’ track. The statute did not cover oiling and so compensa琀椀on was not given. This
can undermine public con昀椀dence in the law.
Case Laws in India:

In K. N. Farms Industries (Private) Limited v. the State of Bihar, AIR, 2009, SC 3031, the meaning of
the word "land" was in ques琀椀on. "Land" under Sec琀椀on 2 (f), Bihar Land Reforms (Fixa琀椀on of
Ceiling Area and Acquisi琀椀on of Surplus Land) Act, 1961 as applicable to the State of Jharkhand
means "land which is used or capable of being used for agriculture or hor琀椀culture and includes
land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged
underwater or the homestead of a land-holder."
"Explana琀椀on I.—'Homestead' means a dwelling house for the purpose of living or to let out on
rent together with any courtyard, compound, a琀琀ached garden, orchard and out-building and
includes any out-building for the purpose connected with agriculture or hor琀椀culture and any tank,
library and place of worship appertaining to such dwelling house.
Explana琀椀on 11.—Land perennially submerged under water shall not include submerged in the bed
of a river." The Supreme Court held that if a tank appurtenant to the dwelling house is land it

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follows that any tank appurtenant to agricultural/hor琀椀cultural land used to irrigate or water such
agricultural/hor琀椀cultural land will also be land. When the tank is speci昀椀cally referred to as land in
Explana琀椀on I in the de昀椀ni琀椀on of "land" in Sec琀椀on 2 (f), it is not possible to accept the conten琀椀on
that no tank can be land. Thus, it is not possible to exclude land perennially covered with water,
which includes tanks, from the de昀椀ni琀椀on of land.
In S. A. Venkataraman v. Union of India, AIR 1954, SC 375, an inquiry had been made against the
appellant under the Public Service Enquiries Act. On receiving the report of the Enquiry
Commissioner, the appellant was given an opportunity under Ar琀椀cle 311 (2) of the Cons琀椀tu琀椀on to
show cause and was ul琀椀mately dismissed. Later on, he was charged under Sec琀椀ons 161 and 165,
Indian Penal Code and Sec琀椀on 5 (2), Preven琀椀on of Corrup琀椀on Act, 1947. On the ques琀椀on whether
his trial violated Ar琀椀cle 20 (2) of the Cons琀椀tu琀椀on, the Supreme Court held that proceeding before-
the Commissioner was not prosecu琀椀on and therefore his trial was legal.
2. HARMONIOUS CONSTRUCTION.
ANSWER:
The rule of harmonious construc琀椀on plays a signi昀椀cant role in interpre琀椀ng two or more statues
or two or more parts of a statute when they con昀氀ict with each other. It follows a very simple rule
that every statute has a purpose and intent as per law and should be read as a whole.
It is the duty of the courts to avoid “a head-on clash” between two sec琀椀ons of the same act
and, “whenever it is possible to do so, to construe provisions which appear to con昀氀ict possible so
that they harmonise”.
The rule of harmonious construc琀椀on is the thumb rule to the interpreta琀椀on of any statute. An
interpreta琀椀on which makes the enactment a consistent whole should be the aim of the Courts and
construc琀椀on which avoids inconsistency or repugnancy between the various sec琀椀ons or parts of
the statute should be adopted. The Courts should avoid “a head-on clash”, in the words of the
Apex Court, between the di昀昀erent parts of enactment and con昀氀ict between the various provisions
should be sought to be harmonized. The normal presump琀椀on should be consistency and it should
not be assumed that what is given with one hand by the legislature is sought to be taken away by
the other. The rule of harmonious construc琀椀on has been tersely explained by the Supreme Court
thus, “When there are, in an enactment two provisions which cannot be reconciled with each
other, they should be so interpreted, that if possible, the e昀昀ect should be given to both”. A
construc琀椀on which makes one por琀椀on of the enactment a dead le琀琀er should be avoided since
harmoniza琀椀on is not equivalent to destruc琀椀on
Harmonious Construc琀椀on should be applied to statutory rules and courts should avoid absurd
or unintended results. It should be resorted to making the provision meaningful in the context. It
should be in consonance (agreement, harmony) with the inten琀椀on of Rule makers. Rule of
Harmonious construc琀椀on is applicable to subordinate legislature also.
As stated by Venkatarama Aiyar, J.; “The rule of construc琀椀on is well se琀琀led that when there
are, in an enactment two provisions which cannot be reconciled with each other, they should be
so interpreted that; if possible, the e昀昀ect should be given to both. This is what known as the rule
of Harmonious Construc琀椀on”.
That e昀昀ect should be given to both is the very essence of the rule. Thus a construc琀椀on that
reduces one of the provisions to a “useless lumber (disused or cumbersome)” or “dead le琀琀er” is
not harmonious. To harmonise is not to destroy. It is a se琀琀led rule that an interpreta琀椀on which
results in hardship, injus琀椀ce, inconvenience or anomaly should be avoided and that which
supports the sense of jus琀椀ce should be adopted. The Court leans in favour of an interpreta琀椀on

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which conforms to jus琀椀ce and fair play and prevents injus琀椀ce. On a summary of the case-law, the
following principles are discernible (no琀椀ceable):
1. It is the duty of the courts to avoid a head-on clash between two sec琀椀ons of the Act and to
construe the provisions which appear to be in con昀氀ict with each other in such a manner as
to harmonise them.
2. The provision of one sec琀椀on cannot be used to defeat the provision contained in another
unless the court, despite all its e昀昀ort, is unable to 昀椀nd a way to reconcile their di昀昀erences.
3. When it is impossible to completely reconcile the di昀昀erences in contradictory provisions,

the courts must interpret them in such a way so that e昀昀ect is given to both the provisions
as much as possible.
4. Courts must also keep in mind that interpreta琀椀on that reduces one provision to a useless
number or a dead lumbar is not harmonious construc琀椀on.
5. To harmonize is not to destroy any statutory provision or to render it o琀椀ose (serving

no practical purpose or result).
Cases:
In Bengal Immunity Company v. the State of Bihar, AIR 1955, SC 661, the ques琀椀on of solving
the con昀氀ict between Ar琀椀cle 286 (1), explana琀椀on (as it then stood) to Ar琀椀cle 286 (1) (a), and Ar琀椀cle
286 (2) was before the Court.
Ar琀椀cle 286 (1) said: 'no law of a State shall impose a tax on the sale of goods where such sale takes
place (a) outside the State'. The explana琀椀on to Ar琀椀cle 286 (1) (a) stated: 'for the purposes of sub-
clause (a) a sale shall be deemed to have taken place in the State in which the goods have actually
been delivered as a direct result of such sale for the purpose of consump琀椀on in that State.' Ar琀椀cle
286 (2) said: 'Except in so far as Parliament may by law otherwise provide, no law of a State shall
impose a tax on the sale of any goods where such sale took place in the course of inter-State trade
or commerce'. The respondent argued that they were en琀椀tled to tax the sales made by the
appellant, a registered dealer under the Bengal Finance (Sales Tax) Act, in the course of inter-State
trade or commerce because the goods had been delivered in the respondent State for
consump琀椀on in that State. Applying the principle of harmonious construc琀椀on, the Supreme Court
held that the con昀氀ict between the said provisions could be solved if the explana琀椀on to Ar琀椀cle 286
(1) (a) was interpreted as limited only to the Ar琀椀cle 286 (1) (a) because the only purpose of the
explana琀椀on was to explain the meaning of the phrase outside sale used in Ar琀椀cle 286 (1) (a). The
explana琀椀on, therefore, could not be extended to Ar琀椀cle 286 (2) either as an excep琀椀on or as a
proviso thereto. Venkatarama Ayyar, J., in his minority opinion stated that it is a cardinal, rule of
construc琀椀on that when there are in a statute two provisions which are in con昀氀ict with each other
so that both of them cannot stand, they should, if possible, be so interpreted that e昀昀ect can be
given to both and that construc琀椀on which renders either of them inopera琀椀ve and useless should
not be adopted except in the last resort.
In D. Sanjeevayya v. Election Tribunal, AIR 1967, SC 1211, the elec琀椀on of the appellant to the
State Legisla琀椀ve Assembly was challenged by a pe琀椀琀椀oner who prayed that he be declared elected
in place of the Appellant. During the pendency of this pe琀椀琀椀on, the appellant got elected to the
Rajya Sabha and so resigned from the Assembly. He 昀椀led a writ pe琀椀琀椀on in the High Court with the
prayer of a direc琀椀on to be issued to the Elec琀椀on Commissioner for proceeding with the holding of
a by-elec琀椀on of the seat vacated by him under Sec琀椀on 150 of the Representa琀椀on of the People
Act, 1951. The High Court dismissed his pe琀椀琀椀on. The Supreme Court, agreeing with the decision of
the High Court, held that Sec琀椀on 150 could not be interpreted in isola琀椀on because the Court had

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to keep in mind the other related provisions in the Act such as Sec琀椀ons 84 and 98 (c) If the
appellant's arguments that the Elec琀椀on Commissioner should start making arrangements for by-
elec琀椀on immediately a昀琀er the resigna琀椀on of a member even though an elec琀椀on pe琀椀琀椀on against
that member is pending are accepted, the e昀昀ect of it could lead to an absurdity never intended by
the Parliament. Such will be the case where, for instance, the elec琀椀on pe琀椀琀椀oner wins his pe琀椀琀椀on
against the member vaca琀椀ng his seat and is declared elected. In such a situa琀椀on there will be two
persons represen琀椀ng the same cons琀椀tuency which could never have been the will of the
legislature. Construing Sec琀椀on 150 harmoniously with Sec琀椀ons 84 and 98 (c), therefore, will lead
to the conclusion that while enac琀椀ng Sec琀椀on 150 the Parliament did not intend that the elec琀椀on
pe琀椀琀椀on should stand dismissed with the resigna琀椀on of the member against whom the pe琀椀琀椀on
has been brought.
3. INTERPRETATION OR DEFINITION CLAUSES.

ANSWER:
The legislation can lay down legal de昀椀nition of its own language, if
such bodies are embodied in the code itself, it becomes binding on the
courts. When the acts itself provides a dictionary for the words used, the
court must 昀椀rst look into that dictionary for interpretation. In Mayor of
Portsmouth v. Smith, the Court said that the introduction of the
interpretation clause is a novelty.
There have been both the criticism and the appraisal made in
reference to the inclusion of de昀椀nition clause in a statute. In Mayor of
Portsmouth v. Smith, the Court observed: “the introduction of
interpretation clause is a novelty.” When the act itself provides the
dictionary for the words used, the court must 昀椀rst look into that dictionary
for interpretation. And then, there has been a criticism made as to the
utility of de昀椀nition clause or the interpretation clause. Despite this, there
has been an inclusion of de昀椀nition clause in most of the statutes so
created, whether in the Indian Statutes or the statutes abroad.
Talking of the pros of adding de昀椀nitions to a statute, these de昀椀nitions

help greatly to the one who reads the statute. Following are the bene昀椀ts
that arise by adding meaning to the frequent and important words of a
statute:
1. It provides some kind of certainty and idea as to what extent is the

meaning of the phrase or the word so de昀椀ned can be taken. Without
having any de昀椀nition to a word, it becomes ambiguous as to what
the statute or the legislature had the intention of the word so added.
2. When a word has been de昀椀ned in a statute, it saves the same word
to be de昀椀ned everywhere in a statute, since the word so de昀椀ned are
frequently used. It is a great help to those reading and making in
use the statutes.
3. By adding de昀椀nition to a word, it is helpful as one can easily
understand as to what the statute is intended to say. A statute thus
may well provide with the de昀椀nition of a word which suits the
legislation and can di昀昀er with the general meaning of the word and
yet still stand authoritative.

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4. There are di昀昀erent meanings to a word when used as di昀昀erent

dictionaries provide with quite di昀昀erent meanings, hindering the
interpretation of a word and, thus the provision in a statute.
Providing with a de昀椀nition in the statute itself makes a lot easier to
understand of what the word in the statute really means and would
help interpret further on if need be, thus eliminating the ambiguity
as to the meaning of a word or phrase in a statute.
As to the cons of adding meaning or de昀椀nition to a word in legislation,

there has been a criticism made on it.
On drawing a balance between them while comparing both the pros

and cons of adding a de昀椀nition clause to a statute, it seems the pros have
a higher persuasive value of adding meaning to a statute than of the cons
of it.
To sum up, the object of a de昀椀nition is to avoid the necessity of

frequent repetitions in describing the subject matter to which the word or
expression de昀椀ned is intended to apply. A de昀椀nition contained in the
de昀椀nition clause of a particular statute should be used for the purpose of
that Act. De昀椀nition from any other statute cannot be borrowed and used
ignoring the de昀椀nition contained in the statute itself.
1. RESTRICTIVE DEFINITIONS
As stated above, a statute may de昀椀ne a word even arti昀椀cially, setting up

of its ambit, whether to make restrictive of a de昀椀nition or to make it
extensive. When a word is de昀椀ned to ‘mean’ something, the de昀椀nition
prima facie is restrictive in nature and is exhaustive.
A restrictive de昀椀nition means that the meaning so de昀椀ned in the

statute for a particular word has a very restrictive ambit, so much so that
its meaning cannot go beyond what has been de昀椀ned. There is nothing
that can be included in the meaning beyond what has been stated. There
is seldom any scope for interpretation in case of a restrictive de昀椀nition.
Where ‘means’ is employed, it shows that the de昀椀nition enacted is hard

and fast and that no other meaning can be assigned to the word “de昀椀ned”
that is put down in the de昀椀nition.
When in the de昀椀nition clause given in any statute the word “means” is
used, what follows is intended to speak exhaustively. When the word
“means” is used in the de昀椀nition it is a “hard-and-fast” de昀椀nition and no
meaning other than that which is put in the de昀椀nition can be assigned to
the same.
2. EXTENSIVE DEFINITION
When the word de昀椀ned contains ‘include’ in the meaning, the

de昀椀nition is extensive in nature.

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In case of an extensive de昀椀nition, the de昀椀nition of the word has the

scope and ambit to go beyond what has been stated and it also gives the
scope to interpret and incorporate as to what all can be included in that
de昀椀nition.
If a word is to mean one thing and include other things as well, then it
does not mean that the former thing will also be included in the meaning
along with the latter things.
The word ‘include’ is very generally used in the interpretation clause in

order to enlarge the meaning of words or phrases occurring in the body of
the statute, and when it is so used those words or phrases must be
construed as comprehending, not only such things, as they signify
according to their natural import, but also those things which the
interpretation clause declares that they shall include.
In State of Maharashtra v. Labour Law Practitioners’

Association, the court gave the word ‘district judge’ under Art. 236(a)
of the Constitution an extensive de昀椀nition saying that the word would
include the hierarchy of specialized civil courts viz. Labour courts and
industrial courts which are not expressly included in the de昀椀nition.
But the word ‘include’ is susceptible of another construction, which

may become imperative if the context of the act is su昀케cient to show that
it was not merely employed for the purpose of adding the natural
signi昀椀cance of the words or expressions used. This may be equivalent to
‘mean and include’ and for the purpose of the act must invariably be
attached to those words or expressions. Thus, the word include may
sometimes be used in the context of mean and would thus limit or bar
further inclusion of other things into the meaning of the word or phrase of
the Act.
The word ‘include’ may in exceptional cases be construed as equivalent to

‘mean and include’.
A de昀椀nition section may also be written as ‘ is deemed to include’

which again is an inclusive or extensive de昀椀nition and such a form is used
to bring in by a legal 昀椀ction something within the word de昀椀ned which
according to its ordinary meaning is not included within it.
Wherein a de昀椀nition by way of amendment replace mean by include, it

is construed to give a wider meaning and perspective to the de昀椀nition and
that the earlier de昀椀nition which was limited and restricted to the meaning
so de昀椀ned and to such things de昀椀ned would no longer be applicable.
3. EXHAUSTIVE DEFINITION
A de昀椀nition using ‘mean and include’ is considered as exhaustive. This

means that the de昀椀nition will embrace only what is compared within the

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ordinary meaning of the ‘means’, together with what is mentioned in the

‘includes’ part of the de昀椀nition.
Thus, a de昀椀nition may both mean and includes wherein one thing would
mean such and such thing and others would include things more than
what is stated. Thus, it can include and exclude both in the sense that at
one place in the de昀椀nition it can include things and at the other place of
the same de昀椀nition it can exclude other things to be incorporated.
The de昀椀nition of ‘transfer of property’ in the Gift Tax Act, 1958 came
into jeopardy as the words ‘disposition, conveyance, assignment,
settlement, delivery and payment’ were used in the de昀椀nition which
signi昀椀es di昀昀erent modes of transfer of property. here it was construed
that the partition of a Hindu Undivided Family would not be included in
this de昀椀nition as the meaning cannot be extended to a transfer of
property where there is no tax applied.
4. AMBIGUOUS DEFINITIONS
There are de昀椀nitions that are ambiguous in itself. This happens when
the de昀椀nition itself is not clear as to its scope and meaning and there
requires further interpretation of those words or phrases in order to
understand or make it applicable to a certain case. It is presumed that the
de昀椀nitions given by the legislature in the statute will have an e昀昀ect to the
extent that there might not be any requirement to interpret the word
further on and that the meaning so provided would be su昀케cient in itself,
yet, there are de昀椀nitions that the legislature makes which are ambiguous
and require further interpretation.
It must be read in the context of the phrase which it de昀椀nes, realizing that
the function of a de昀椀nition is to give precision and certainty to a word or
phrase which would otherwise be vague and uncertain but not to
contradict it or supplant it altogether.” Thus, in case a de昀椀nition clause is
ambiguous and does not provide with a su昀케cient meaning, there requires
interpretation for the word in the sense that it should apply to the case.
Also, in order to understand in complete the meaning of the word, it

should not be read in isolation and should require taking the help of other
provisions or the de昀椀nition for the same word provided in di昀昀erent
statutes. This, in turn, provides rather a speci昀椀c and precise meaning to
the word so de昀椀ned in ambiguity and helps in understanding applying it to
the relevant situation and to situation wherever necessary..
For example, the phrase ‘immovable property’ has nowhere been de昀椀ned
to exhaustive sense that it is su昀케cient to not to look anywhere else in
order to understand the meaning of the phrase.

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The immovable property has been de昀椀ned under three provisions in 3

di昀昀erent statutes. They are the Transfer of Property Act, 1882, the
General Clauses Act, 1897 and the Registration Act, 1908.
1. Section 3, Transfer of Property Act, 1882

“Immovable property” does not include standing timber, growing crops or
grass.
2. Section 3(26), General Clauses Act, 1897

“Immovable property” shall include land, bene昀椀ts to arise out of the land,
and things attached to Earth, or permanently fastened to anything
attached to the Earth.
3. Section 2(6), Registration Act, 1908

“Immovable property” includes land, buildings, hereditary allowances,
right to ways, lights, ferries, 昀椀sheries or any other bene昀椀t to arise out of
the land, and things attached to Earth, or permanently fastened to
anything which is attached to Earth, but not standing timber, growing
crops nor grass.
In this, the de昀椀nition given in the Transfer of Property Act is not su昀케cient
and help of the other two provisions from the General Clauses Act and the
Registration Act is taken which provides somehow a broader perspective
and meaning to the phrase. The de昀椀nitions themselves cannot provide
with an exhaustive meaning and hence there requires interpretation of
the provisions.
Wide words used in an interpretation clause may thus be given a limited

meaning having regard to the context as a whole for a word in a statute
whether it be in the body of the statute or in the interpretation clause is
not to be construed without reference to the context in which it appears.
However, it will not be correct to say that a wide word in an inclusive
de昀椀nition should be given a limited scope by reference merely to the
ordinary meaning of the word de昀椀ned.
5. DEFINITIONS WHEN SUBJECT TO CONTRARY EXTENT
In context to the de昀椀ni琀椀ons of this kind, Lord Dunedin said, “it is a novel and unheard of the idea
that an interpreta琀椀on clause which might easily so expressed as to cover certain sec琀椀ons and not
cover others should be when expressed in general terms divided up by sort of theory applicana
singula singulis, so as not to apply to the sec琀椀ons where the context suggests no di昀케culty of
applica琀椀on.
If the legislature de昀椀nes a term, in the absence of a clear indica琀椀on to the contrary, those terms
shall be used as proposed. But where there is a context otherwise required, the terms or the words
shall be given a meaning di昀昀erent from that de昀椀ned in the statute and thus comes into play the part
of the interpreta琀椀on.
The de昀椀nitions many times contain phrases like ‘unless the context
otherwise requires’ or ‘unless there is anything repugnant in the subject
or context’. In these situations, a contrary context may be used for the

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purpose of the situation in the case. And even if it has not been expressly
stated in the de昀椀nition, it is imperative to make the interpretation of the
words so used if so required.
An argument based on contrary context which will make the inclusive

de昀椀nition inapplicable to any provision in the Act cannot be accepted as it
would make the de昀椀nition entirely useless.
When the application of the de昀椀nition of a term in a provision containing

that the term makes it unworkable and otiose (serving no practical
purpose or result), it can be said that the de昀椀nition does not apply to that
provision because of the contrary context.
While 昀椀nding the meaning of the word ‘insurer’ in various sections of the
Act (Insurance Act, 1938), the meaning to be ordinarily given to it is that
given in the de昀椀nition clause. But this is 昀氀exible and there may be
sections in the Act where the meaning may have to be departed from on
account of the subject or context in which the word had been used and
that will give e昀昀ect to the opening sentence of the de昀椀nition.
The de昀椀nition of the word shall also be amended if there is a change

made in the provisions of the Constitution and the Act and both do not
cohere with each other due to the de昀椀nition. If there is an amendment
made in the Constitution or Act or both due to which some provisions do
not have conformity with each other which include the usage of the
meanings of the words which remain unamended, the words so de昀椀ned
are useless and redundant.
Similarly in construing the word ‘workman; in Section 33-C(2) of the

Industrial Disputes Act, 1947, it was held that the word included a
dismissed workman although, in the de昀椀nition of that word as given in
Section 2, a dismissed workman is included only for the purpose of
industrial disputes in Section 10.
The court not only has to look at the words but the context, the
collocation and the object in order to interpret the meaning to relate the
matter.
CONCLUSION
The de昀椀nition clause so added in an Act provides with a lot of help in

determining the meaning of a word in a statute. Whereas it becomes
cumbersome to 昀椀nd the correct contention of a word used in a statute,
the inclusion of de昀椀nition or interpretation clause becomes helpful by
providing the required context or meaning of the word so used in a
statute, either once, or several times.
4. CONSEQUENCES OF REPEAL (EFFECT OF REPEAL).

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ANSWER: In‌‌general, the term repeal stands for to cancel or to revoke. But in the context of law, it
means to “abolish statutes”. Repeal of statutes means the aboli琀椀on of the law, and once if any
statute is abolished then it is considered void and possesses no e昀昀ects. In addi琀椀on, there is no
basic di昀昀erence between amendment and repeal. Both the term amendment and repeal is used
for sta琀椀ng a similar expression that is the subs琀椀tu琀椀on or omission or addi琀椀on.
As per Halsbury’s Laws of England, the term repeal stands for revoking and abolishing an act and
all its e昀昀ects which cause it to cease to be a part of statutes of books or body of law.
According to the Black’s law dic琀椀onary, the term repeal means a legisla琀椀ve act which abrogates or
obliterates an exis琀椀ng statute.
There exist two types of statutes temporary and perpetual. Temporary statutes tend to have
e昀昀ects for a speci昀椀c period of 琀椀me. They have no e昀昀ects a昀琀er the expiry of the speci昀椀c period,
however, the permanent or the perpetual statute is the one in which the statute remains e昀昀ec琀椀ve
un琀椀l it is subs琀椀tuted or repealed by the legisla琀椀ve act. The power to repeal a statute is conferred
to the legislature is similar to the powers it has for the enactment of a statute. For example, the
Companies Act, 2013 repealed the Companies Act 1956, the Criminal Procedure Code, 1973
repealed the previous Criminal Procedure Code, etc. such power of repealing a statute is similar
and coextensive to the power of making or enac琀椀ng a law. Both the union and the state legislature
are empowered with such power however they are restricted to delegate the power of repealing.
What are the objects of the Repealing Act?

The primary object of this act is to bring necessary changes in the exis琀椀ng law for changing socio-
economic and cultural condi琀椀ons from 琀椀me to 琀椀me. The purpose of this Act is to remove the
outdated or obsolete ma琀琀er from the body of law. A昀琀er the removal of obsolete ma琀琀er, it is the
court that decides whether the new provision meets its goal and has di昀昀erent inten琀椀ons or not.
This act is the editorial revision by abolishing obsolete and unnecessary ma琀琀er of the statute and
adding new and proper informa琀椀on in the books of the statute.
What are the kinds of repeal?

There are two types of repeal:
1. Express repeal
2. Implied repeal
Express repeal
Express repeal is an expression which means the aboli琀椀on of the previously enacted statute by the
newly enacted provisions of a statute through expressed words embedded under the new statute
enacted. The statute which has been repealed is called repealed statute and the one which
replaces the earlier statute is called the repealing statute. In general, when an earlier statute or
some of its provisions are repealed through express words embedded under the newly enacted
statute sta琀椀ng that the provisions are now of no e昀昀ect is called the express repeal.
What are the essential features that constitute express repeal?

 The 昀椀rst and foremost feature is that there must be a repealing statute.
 The earlier statute must be repealed by the new enac琀椀ng or repealing statute.
 The enacted statute must have clear inten琀椀on showing the e昀昀ect of the repeal.
 So it is understood that any earlier statute or provision of the statute can be removed or
repealed by the enacted statute showing incompa琀椀bility with the previous one.
Implied repeal
The term implied means implicit or hinted. So when a statute becomes obsolete and it is inferred
that it is no longer and shall be repealed with the newly enacted statute then this process of
repealing is called implied repeal.

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For example, if we enter a car showroom it is intended that we are there to buy cars. It is implied,
similarly, if there arises any inconsistency in the statute and due to certain circumstances it
becomes necessary to repeal the statute with the new one though such situa琀椀on is not expressly
stated, then it is implicit for the implica琀椀on of repeal.
When the reference is not direct, then the ma琀琀er is decided through the meaning and nature of
the words enshrined under the repeal clause. During the absence of provisions rela琀椀ng to express
repeal the con琀椀nuance of any statute or legisla琀椀on is presumed.
In the case of implied repeal, the burden lies over the person who asserted the implica琀椀on of
repeal. However, it has also been men琀椀oned that if the newly enacted statute shows no clear
inten琀椀on or is inconsistent with the provisions of the earlier act then such an asser琀椀on or
presump琀椀on is rebu琀琀ed and the act of repeal is done by inferring necessary implica琀椀ons.
The concept of implied repeal is loosely based on the following maxim “Leges posteriores priores
contrarias abrogant”. This means that the earlier or previously enacted law shall be obliterated or
abolished by the new one.
Under the following circumstances, the implied repeal is inferred

The 昀椀rst circumstance is when both the subsequent and the earlier enacted acts are inconsistent
with each other one of the two can remain e昀昀ec琀椀ve.
When the subject of the earlier act is covered by the act and is Test of the Implied Repeal
There is the asser琀椀on against the repeal by implica琀椀on. The reason for making such an asser琀椀on is
that legislature while making or enac琀椀ng the law has full knowledge about the current laws on the
subject ma琀琀ers. If the legislature has no provision regarding the repeal of the statute then it is
asserted that the legislature has no inten琀椀on to repeal the exis琀椀ng statute.
Municipal council, Palari v. T.J. Joseph AIR 1963 3C 1561, p. 1564
In the instant case, it was held that if an act or provision enacted is inconsistent from the act
previously enacted and one of the acts must be obliterated. The presump琀椀on, in‌ ‌this‌ ‌case,
rebu琀琀ed and the implied repeal is inferred.
For the implied repeal of a statute following points are to be considered:
Whether the previously enacted laws are in direct contradic琀椀on to the later enacted laws.
The con昀氀ict between the laws is of such a nature that can’t be resolved and reconcilia琀椀on
between the laws is not possible.
Whether the newly enacted act is not consistent with the previously enacted act and one has to be
obliterated.
When both the laws are of such a nature that occupy and deals with the same 昀椀eld.
Delhi Municipality V. Shivshanker, [AIR 1971 SC 815]
In the instant case, it was held by the supreme court of India that the test which is applied in case
of repugnancy under Ar琀椀cle 254 of the Indian cons琀椀tu琀椀on while resolving the con昀氀icts arising
between the laws enacted by the parliament and the laws created by the state legislature, this
test of determining repugnancy shall be applied in case of implied repeal of a statute. This test
includes:
 Whether there exists a direct contradic琀椀on between the two statutes or provisions.
 When the law tends to occupy the same 昀椀eld.
 When the legislature explicitly focused on the code of the par琀椀cular subject ma琀琀er
replacing the earlier law.
Ratanlal Adukia v Union of India (AIR 1990 SC 104)
In the instant case, the Supreme Court stated that the doctrine of implied repeal is loosely based
on the statement that the legislature assumed the current state of the law did not intend to
generate any vagueness by retaining the con昀氀ic琀椀ng provisions. The court while implica琀椀ng this
doctrine examines the nature and scope of the two enactments by giving e昀昀ect to the legisla琀椀ve
intent.
Damji V. L.I.C (AIR 1966 SC 135)

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In the instant case, it was held that sec琀椀on 446 embedded under the companies act 1956 is a
general provision whereas the sec琀椀on 15 and 41 enshrined under the Life Insurance Corpora琀椀on
Act, 1956 are special provision so there exists a di昀昀erence and the companies court is not
competent or have jurisdic琀椀on over the ma琀琀ers which falls under the ambit of Insurance
Corpora琀椀on Act, 1956.
What do you mean by Repeal by Desuetude?

As it has been already stated that there are two types of statutes namely temporary statute and
the permanent statute. There exists a very thin line di昀昀erence between both the statutes. A
temporary statute is enacted for speci昀椀c purposes and for a speci昀椀c 琀椀me period and gets repealed
a昀琀er the expiry of that par琀椀cular period or ful昀椀lment of that purpose. A permanent statute which
is also known as a perpetual statute is enacted with a long term goal and gets repealed by the
subsequent statute.
There are certain acts which possess the nature of permanent statute but remains inopera琀椀ve or
ine昀昀ec琀椀ve for a long period of 琀椀me as they are not applied or taken into considera琀椀on by the
court for a long period of 琀椀me. Due to this, the statute loses its recogni琀椀on and its applicability.
Such disobedience of act is known as Repeal by Desuetude.
The Municipal Corpora琀椀on for the city of Pune and another v. Bharat forge Co. Ltd and others (J.T.
1995 (3) S.C. 312), In the instant case, the following doctrine of desuetude was highly cri琀椀cized as
it was assumed that the perpetrators or the accused who have commi琀琀ed certain crimes and are
punished for viola琀椀on of certain laws or statute which has become ine昀昀ec琀椀ve can be protected
and escape their criminal liability.
What are the effects or consequences of repeal?

The e昀昀ects of the repeal of a statute have been described under the following heads:
1. In respect of common law
2. The general e昀昀ect of repeal
3. General clause Act, 1897
1. E昀昀ects or repeal with respect to common law
 Oblitera琀椀on: except as to transac琀椀ons past and closed, a statute a昀琀er its repeal is as
completely as if it had never been enacted.
 Depriving the rights: The e昀昀ect is to destroy all inchoate rights and all causes of ac琀椀on
that may have arisen under the repealed statute.
 Revival: Another result of repeal under common law rule is to revive the law in force at
the commencement of the repealed statute. Thus if one statute is repealed by a second
which in turn is repealed by a third, the e昀昀ect is to revive the 昀椀rst statute unless a contrary
inten琀椀on is indicated in the third statute.
2. General consequences of repeal
The following are some general e昀昀ects or consequences of the repeal of an enactment:
 Later Act abrogates prior one.
 Repealed Act ceases to exist and does not remain in force with e昀昀ect from the date of
repeal.
 Except in rela琀椀on to the past and closed transac琀椀ons, a statute a昀琀er repeal is completely
obliterated as if it had never been enacted. As such, all rights and causes of ac琀椀on under
the repealed statute are destroyed.
 When an Act is repealed, all laws passed under it stand repealed unless there is a saving
provision.
 No proceedings can be commenced or con琀椀nued under an Act a昀琀er its repeal.
 A昀琀er the repeal of a statute, the law which was in force at the commencement of the
repealed statute revives.
 A law can be retrospec琀椀vely amended to validate the transac琀椀ons made under it, even
a昀琀er its repeal.

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 When an exis琀椀ng statute is repealed by a temporary statute, it is a temporary repeal.

A昀琀er expiry of such temporary Act, the repealed Act revives.
 The statute is completely obliterated and all rights under the repealed statute are
destroyed.
3. E昀昀ects embedded under the General Clause Act, 1987
Sec琀椀on 6 of the General Clauses Act, 1897 provides that: where this Act, or any (Central Act) or
Regula琀椀on made a昀琀er the commencement of this Act, repeals any enactment hitherto made or
herea昀琀er to be made, then unless a di昀昀erent inten琀椀on appears, the repeal shall not –
1. Revive anything not in force or exis琀椀ng at the 琀椀me at which the repeal takes e昀昀ect, or
2. A昀昀ect the previous opera琀椀on of any enactment so repealed or anything duly done or
su昀昀ered thereunder, or
3. A昀昀ect any right, privilege, obliga琀椀on or liability acquired, accrued or incurrent under any
enactment so repealed, or
4. A昀昀ect any penalty, forfeiture or punishment incurred in respect of any o昀昀ence commi琀琀ed
against any enactment so repealed, or
5. A昀昀ect any inves琀椀ga琀椀on, legal proceeding or remedy in respect of any such right, privilege,
obliga琀椀on, liability, penalty, forfeiture or punishment as aforesaid.
Conclusion
It can be concluded that the Repeal of statutes means the aboli琀椀on of the law, and once if any
statute is abolished then it is considered void and possesses no e昀昀ects. In addi琀椀on, there is no
basic di昀昀erence between amendment and repeal. Both the term amendment and repeal is used
for sta琀椀ng similar expression that is the subs琀椀tu琀椀on or omission or addi琀椀on. Both the union and
the state legislature are empowered with such power however they are restricted to delegate the
power of repealing. The primary object of this act is to bring necessary changes in the exis琀椀ng law
for changing socio-economic and cultural condi琀椀ons from 琀椀me to 琀椀me. The purpose of this act is
to remove the outdated or obsolete ma琀琀er from the body of law. A昀琀er the removal of obsolete
ma琀琀er, it is the court that decides whether the new provision meets its goal and has a di昀昀erent
inten琀椀on or not. This act is the editorial revision by abolishing obsolete and unnecessary ma琀琀er
of the statute and adding new and proper informa琀椀on in the books of the statute.
5. INTERPRETATION OF SUBSTANTIVE AND PROCEDURAL (ADJECTIVE) LAWS.
Answer: Substan琀椀ve law is the statutory or wri琀琀en law that de昀椀nes rights and du琀椀es such as
crime and punishments (in the criminal law), civil rights and responsibili琀椀es in civil law. It is
codi昀椀ed in legislated statutes or can be enacted through the ini琀椀a琀椀ve process.
Substan琀椀ve law is a statutory law that deals with the legal rela琀椀onship between people or the
people and the State. Therefore, substan琀椀ve law de昀椀nes the rights and du琀椀es of the people.
Methods of interpreting substantive law:

Introduction: Interpre琀椀ng is the process by which the Court seeks to ascertain the meaning of
par琀椀cular legisla琀椀on. Interpreta琀椀on is the art of process of discovering and expounding the
meaning and inten琀椀on of the authors of the law with respect to its applica琀椀on to a given case,
where that inten琀椀on is rendered doub琀昀ul, among other, by reason of the fact that the given case
is not explicitly provided for in the law.
To interpret substan琀椀ve law, jurists follow the following methods:
1. Strict Interpretation:
It is a sound rule of construc琀椀on that the substan琀椀ve law should be construed strictly so as to
give e昀昀ect and protec琀椀on to the substan琀椀ve rights unless the statute otherwise intends.
Strict construc琀椀on is one which limits the applica琀椀on of the statute by the words used.
According to Sutherland “strict construc琀椀on refuses to extend the import of words used in a
statute so as to embrace cases or acts which the words do not clearly describe.

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2. With reference to the purpose and object of the statute:

As long ago as Heydon’s case, Lord Coke said, that it was resolved that for the sure and true
interpreta琀椀on of statutes four things are to be discerned (recognized) and considered:
A. What was the common law before the making of the Act,
B. What was the mischief and defect for which the common law did not provide,
C. What remedy the Parliament has resolved and appointed to cure the disease of the
Commonwealth,
D. The true reason of the remedy and then the o昀케ce of all the Judges is always to make such
construc琀椀on as shall suppress the mischief and advance the remedy.
3. Rules of harmonious Construction:

It is se琀琀led rule of interpreta琀椀on that all the provisions would be read together harmoniously
so as to give e昀昀ect to all the provisions as a consistent whole rendering no part of the provision as
surplusage. The well-known principle of harmonious construc琀椀on is that e昀昀ect shall be given to
all the provisions and for that, any provision of the statute should be construed with reference to
the other provisions to make it workable, a par琀椀cular provision cannot be picked up and
interpreted to defeat another provision made in that behalf under the statute.
In Sultana Begum v. Prem Chand Jain, the essence of the rule of harmonious construc琀椀on has
been explained as under:
A. It is the duty of the Courts to avoid a head-on clash between two sec琀椀ons of the Act,
B. The provision of one Sec琀椀on of a Statute cannot be used to defeat the other provisions
unless the Court, despite its e昀昀orts, 昀椀nds it impossible to e昀昀ect a reconcilia琀椀on between
them,
C. The Courts have also to keep in mind that an interpreta琀椀on which reduces one of the
provisions as a ‘dead le琀琀er’ or ‘useless lumber’ is not harmonious construc琀椀on.
D. To harmonise is not to destroy any statutory provision or to render it o琀椀ose (serving
no practical purpose or result).
4. Prospective effect of Substantive Law:
The general rule of construc琀椀on of substan琀椀ve law is unless an enactment expressly provides
for the retrospec琀椀ve opera琀椀on, it has to be construed as prospec琀椀ve. Unless there are words in
the statute su昀케cient to show the inten琀椀on of the legislature to a昀昀ect exis琀椀ng rights, it is deemed
to be prospec琀椀ve.
Methods or canons of interpreting Procedural Laws

Introduction: Salmond de昀椀ned the ‘law of procedure’ is the branch of the law which governs the
process of li琀椀ga琀椀on. It is the law of ac琀椀ons – using the term ac琀椀on in a wide sense to include all
legal proceedings, civil and criminal.
Procedural law is the ‘machinery’ for enforcing those rights and du琀椀es of Substan琀椀ve Law.
Procedural law comprises the rules by which a court hears and determines what happens in civil or
criminal proceedings as well as the method and means by which substan琀椀ve law is made and
administered.
Procedural law comprises the set of rules that govern the proceedings of the Court in criminal
lawsuits as well as civil and administra琀椀ve proceedings. The Court needs to conform to the
standards set-up by procedural law, while during the proceedings. These rules ensure fair prac琀椀ce
and consistency in the ‘due processes.
The jurist’s func琀椀on is to rise above par琀椀cular enactment and factual situa琀椀ons. He must
follow some procedure or principles to expound the intent of the legislature. To interpret the
procedural law, jurists follow the following methods or procedure:

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A. Rule of Liberal Construction:

It is a sound rule of construc琀椀on that procedural enactments should be construed liberally and
in such manner, as to render the enforcement of substan琀椀ve rights e昀昀ec琀椀ve.
‘Liberal Construc琀椀on’ means to give the language of a statutory provision, freely and
consciously, its commonly, generally accepted meaning, to the end that the most comprehensive
applica琀椀on thereof may be accorded, without doing violence to any of its terms.
The end of all procedure is to facilitate jus琀椀ce and not to defeat it. In construing a provision
which as a procedural one, the norm of ‘liberal construc琀椀on’ must be borne in mind. Statutes
rela琀椀ng to remedies and procedure must receive a liberal construc琀椀on, especially so as to secure a
more e昀昀ec琀椀ve, a speedier, a simpler and a less expensive administra琀椀on of law.
B. Harmonious Construction:
Maxim: injustum est nisi tota lege inspecta, de una aliqua ejuspar琀椀cula proposita judicare vel
raspondere (It is unjust to decide or respond to any par琀椀cular part of law without examining the
whole of the law).
Harmonious construc琀椀on is the interpreta琀椀on of statutes. It is a recognised rule of
interpreta琀椀on of Statutes that the expression used therein should ordinarily be understood in a
sense in which they best harmonize with the object of the statute and which e昀昀ectuate the object
of the statute and the legislature.
In a statute like the Code of Civil Procedure with its large number of sec琀椀ons with its numerous
orders and s琀椀ll more numerous rules thereunder, it is of great importance that, if possible,
construc琀椀on of a par琀椀cular sec琀椀on is not so made as to be in con昀氀ict with other speci昀椀c sec琀椀on,
rules or orders.
C. Procedural Law, retrospective Effect:

The statutes dealing with mere ma琀琀ers of procedure are presumed to be retrospec琀椀ve in the
absence of express provision or necessary implica琀椀on against retrospec琀椀vity.
In contrast to statutes dealing with substan琀椀ve rights, statutes dealing with the ma琀琀ers of
procedure are presumed to be retrospec琀椀ve unless such a construc琀椀on is textual inadmissible.
When an amendment Act a昀昀ects the ma琀琀ers of procedure only, it applies to all ac琀椀ons pending as
well as future, because the change in procedure does not alter the substan琀椀ve right of the ci琀椀zens.
D. Ignoring the technical defects:

According to Lord Reid, “The canons of construc琀椀on are not so rigid as to prevent a realis琀椀c
solu琀椀on”.
In Mohd. Tahir v. Mohd. Wahab, it has been observed that any technical defect in the
procedure should be ignored in the issue of public concern. Viola琀椀on of any procedural provision
cannot automa琀椀cally make the enquiry or order void. Rules of procedure have to be interpreted
in a manner that may substan琀椀ate the cause of jus琀椀ce as well as to avoid delay.
6. RULES OF CONSTRUCTION UNDER THE GENERAL CLAUSES ACT, 1897.

Answer:
Introduction
The General Clauses Act, 1897 is a consolida琀椀ng and amending Act as is clear from the long 琀椀tle
of the Act. The purpose of the Act is to avoid super昀氀uity and repe琀椀琀椀on of language; and to place
in a single Act, provisions as regards de昀椀ni琀椀ons of words and legal principles of interpreta琀椀on
which would otherwise have to be incorporated in many di昀昀erent Acts and Regula琀椀ons.

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General Rules of Construction

1. Coming into opera琀椀on of enactments (Sec琀椀on 5): where any Central Act is not expressed to
come into opera琀椀on on a par琀椀cular day, then it shall come into opera琀椀on on the day on
which it receives the assent.
2. E昀昀ect of repeal (Sec琀椀on 6): Where this Act, or any (Central Act) or Regula琀椀on made a昀琀er
the commencement of this Act, repeals any enactment hitherto made or herea昀琀er to be
made, then, unless a di昀昀erent inten琀椀on appears, the repeal shall not:
a. Revive anything not in force or exis琀椀ng at the 琀椀me at which the repeal takes e昀昀ect, or
b. A昀昀ect the previous opera琀椀on of any enactment so repealed or anything duly done or
su昀昀ered thereunder, or
c. A昀昀ect any right, privilege, obliga琀椀on or liability acquired, accrued or incurrent under
any enactment so repealed, or
d. A昀昀ect any penalty, forfeiture or punishment incurred in respect of any o昀昀ence
commi琀琀ed against any enactment so repealed, or
e. A昀昀ect any inves琀椀ga琀椀on, legal proceeding or remedy in respect of any such right,
privilege, obliga琀椀on, liability, penalty, forfeiture or punishment as aforesaid.
And any such inves琀椀ga琀椀on, legal proceeding or remedy may be ins琀椀tuted, con琀椀nued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act
or Regula琀椀on had not been passed.
3. Repeal of Act making textual amendment in Act or Regula琀椀on (Sec琀椀on 6A): Where any
(Central Act) or Regula琀椀on made a昀琀er the commencement of this Act repeals any
enactment by which the text of any (Central Act) or Regula琀椀on was amended by the
express omission, inser琀椀on or subs琀椀tu琀椀on of any ma琀琀er, then, unless a di昀昀erent inten琀椀on
appears, the repeal shall not a昀昀ect the con琀椀nuance of any such amendment made by the
enactment so repealed and in opera琀椀on at the 琀椀me of such repeal.
4. Revival of repealed enactments (Sec琀椀on 7): In any Central Act or Regula琀椀on made a昀琀er the
commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly
or par琀椀ally, any enactment wholly or par琀椀ally repealed, expressly to state that purpose.
5. Construc琀椀on of references to repealed enactments (Sec琀椀on 8),
6. Commencement of termina琀椀on of 琀椀me (Sec琀椀on 9): In any, Central Act or Regula琀椀on made
a昀琀er the commencement of this Act, it shall be su昀케cient, for the purpose of excluding the
昀椀rst in a series of days or any other period of 琀椀me, to use the word ‘from’, ‘and’ for the
purpose of including the last in a series of days or any other period of 琀椀me, to use the word
‘to’.
7. Computa琀椀on of 琀椀me (Sec琀椀on 10): Any act or proceeding is directed or allowed to be done
or taken in any Court or o昀케ce on a certain day or within a prescribed period, then, if the
Court or o昀케ce is closed on that day or the last day of the prescribed period, the act or
proceeding shall be considered as done if it is done on the next working day.
8. Measurement of distances (Sec琀椀on 11): The distance shall, unless a di昀昀erent inten琀椀on
appears, be measured in a straight line on a horizontal plane.
9. Duty to be taken pro-rata in enactments (Sec琀椀on 12): —Where, by any enactment now in
force or herea昀琀er to be in force, any duty of customs or excise, or in the nature thereof, is
leviable on any given quan琀椀ty, by weight, measure or value of any goods or merchandise,
then a like duty is leviable according to the same rate on any greater or less quan琀椀ty.
10. Gender and number (Sec琀椀on 13):
A. Words impor琀椀ng the masculine gender shall be taken to include females, and
B. Words in the singular shall include the plural and vice versa.
7. GENERAL PRINCIPLES OF INTERPRETATION (Rules of Statutory Interpretation).

Answer: Following are considered as general principles of interpreta琀椀on:

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1. The intention of Legislature predominates:

A statute is an edict (o昀케cial order) of the legislature. The object of the Court in interpre琀椀ng a
statute is to 昀椀nd out the inten琀椀on of the legislature as expressed in the statute.
The inten琀椀on of the legislature has two aspects. The ‘meaning of the words used’ and the
‘purpose and object’ or ‘the reason and spirit’ pervading through the statute. According to
Blackstone, the most fair and ra琀椀onal method for interpre琀椀ng a statute is by exploring the
inten琀椀on of the legislature through the most natural and probable signs which are ‘either the
words, the context; and subject ma琀琀er, the e昀昀ects and consequences, or the spirit and reason of
the law’.
It may be concluded that the inten琀椀on of Legislature is the most important factor for
administering jus琀椀ce in accordance with the law. If Courts fail to derive the true inten琀椀on, it could
not only lead to a miscarriage of jus琀椀ce but may also defeat the very purpose of the statute. The
inten琀椀on of Legislature must primarily be gathered from the language itself.
2. A construction to avoid absurdity is justifiable (the rule of harmonious

construction):
While interpre琀椀ng the statutes, the Courts are permi琀琀ed to avoid absurdity and to apply
harmonious construc琀椀on.
In Sultan Begum v. Prem Chand Jain, the Supreme Court observed that:
“The rule of interpreta琀椀on requires that while interpre琀椀ng two inconsistent or, obviously
repugnant provisions of an Act, the Courts should make an e昀昀ort to so interpret the provisions as
to harmonise them so that the purpose of the Act may be given e昀昀ect to and both the provisions
may be allowed to operate without rendering either of them o琀椀ose (serving no
practical purpose or result).
3. Same word to have the same meaning unless otherwise intended:
When the Legislature uses the same word in di昀昀erent parts of the same sec琀椀on or statute,
there is a presump琀椀on that the word is used in the same sense throughout. This rule says that
“where the dra昀琀sman uses the same word or phrase in a similar context, he must be presumed to
the intent it in each place to bear the same meaning”.
Wanchoo J in Bhogilal Chunnilal Pandya v. the State of Bombay observed that “words are
generally used in the same sense throughout in a statute unless there is something repugnant in
the context.
4. Statutes should be read as a whole in its context (ex visceribus actus):

The meaning of maxim ‘ex visceribus actus’ is that every part of the statute must be construed
within the four corners of the Act. In other words, no provision should be interpreted in isola琀椀on.
Wherever the language of a provision is ambiguous and open to alterna琀椀ve construc琀椀ons due to
uncertainty of the meaning of the words used therein, the provision has to be read as a whole in
its context. It is not permissible to omit any part of it and the construc琀椀on of a sec琀椀on should be
made of all parts together.
It is a rule now 昀椀rmly established that the inten琀椀on of the Legislature must be found by reading
the statute as a whole.
5. It is better to validate a thing than to invalidate it (ut res magis valeat quam
pereat)
The maxim ‘ut res magis valeat quam pereat’ lays down it is be琀琀er for a thing to have an e昀昀ect
than to be made void. A statute should be interpreted to make it e昀昀ec琀椀ve and opera琀椀ve.
In Tinsukhia Electric Supply Co. Ltd., v. State of Assam, the Supreme Court observed that a
statute or any enac琀椀ng provision therein must be so construed as to make it e昀昀ec琀椀ve and
opera琀椀ve. However, if a statute is absolutely vague and its language is wholly intractable and
absolutely meaningless, the statute could be declared void for vagueness.

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6. Express mention of one thing implies the exclusion of another (expressio unius est
exclusio alterius):
The maxim ‘expressio unius est exclusio alterius’ indicates that if one or more things of a
par琀椀cular class are expressly men琀椀oned in an enactment that means that other things belonging
to the same par琀椀cular class are excluded from the domain of the enactment. Again, where two
expressions have been used in a statute one of which generally includes the other, the more
general expression excludes the less general.
In India, the fundamental rights under Ar琀椀cles 15, 16 and 19 are available to the ci琀椀zens of
India and not to other persons and non-ci琀椀zens thus are expressly excluded, as they are not
ci琀椀zens. However, Indian ci琀椀zens may claim these freedoms through their legal persons because
the relief ul琀椀mately goes to the ci琀椀zens and not to the legal persons.
7. Expression precludes implication (expressum facit cessare tacitum):

The Maxim ‘expressum facit cessare tacitum’ is analogous to the principle ‘expressio unius
personae vel rei, est exclusion alterius’ and it connotes that when there is express men琀椀on of
certain things, then anything not men琀椀oned is excluded. In other words, the maxim lays down
that express words put an end to implica琀椀on.
8. Contemporaneous expression is the best and strongest in the law (Contemporanea

exposito est optima et fortissimo in lege):
The maxim ‘Contemporanea expresi琀椀on est for琀椀ssimo in lege’ means that ‘contemporaneous
expression is the best and strongest in the law’. The language of a statute must be understood in
the sense in which it is understood when it was passed. Those who live at on near the 琀椀me when
it was passed may reasonably be supposed to be be琀琀er acquainted than their descendants with
the circumstances to which it has related, as well as with the sense then a琀琀ached to legisla琀椀ve
expressions.
The principle that the language used by the lawmakers must be interpreted in its natural and
ordinary sense suggests that the sense must be the same which the words used ordinarily had at
the 琀椀me the statute was enacted.
9. Associated words (noscitur a sociis):

The word ‘noscitur’ means to know and ‘sociis’ means associa琀椀on. Therefore, ‘noscitur a sociis’
means, too know from the associa琀椀on. ‘Noscitur a sociis’ means ‘the meaning of a doub琀昀ul word
may be ascertained by a reference to the meaning of words associated with it.
The rule of construc琀椀on ‘noscitur a sociis’ as explained by Lord Macmillan ‘The meaning of a
word is to be judged by the company it keeps’. As stated by the Privy Council, in Angus Robertson
v. George Day, “it is a legi琀椀mate rule of construc琀椀on to construe words in an Act of Parliament
with reference to words found in immediate connec琀椀on with them”.
10. Ejusdem generis (of the same kind):

The term ‘Ejusdem generis’ means ‘of the same kind’. The rule of ‘ejusdem generis’ provides
that where words of speci昀椀c meaning are followed by general words, the general words will be
construed as being limited to persons or things of the same general kind or claws as those
enumerated by the speci昀椀c words. The rule of ejusdem generis is the rule of construc琀椀on which
lays down that when par琀椀cular words are followed by general words, the meaning of the general
words is to be understood with reference to the par琀椀cular words; the general words are limited to
the same kind as the par琀椀cular words. This rule restricts the meaning of general words to things
or ma琀琀er of the same kind (genus) as the preceding speci昀椀c words.
The rule of ‘ejusdem generis’ is also known as ‘Lord Tenderen’s rule’. For example, in the
expression “bread, bu琀琀er, jam etc.” a series of words are used which are edibles. Therefore, they
cons琀椀tute one genus. Here the word ‘etc.’ is a general word. It may carry any meaning but

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restricted to edibles only. Thus, ‘etc.’ here may mean ‘biscuit’ or ‘cake’ since they are also edibles
but it cannot mean an ‘apple’.
8. GOLDEN (LOGICAL) RULE OF INTERPRETATION. HOW IS IT DIFFERENT FROM GRAMMATICAL

RULE?
Answer:
What is the Golden Rule?
The golden rule is a modification of the literal rule; Golden rule allows a departure from strict literal
Rule By recourse to consequences of applying a natural and ordinary meaning. The golden rule is used
to remove absurdity. It comes into existence where some doubt existed as to the meaning of a word.
Origin of Golden rule -

In the year 1857, for the first time, Lord Wensleydale propounded the golden rule of
interpretation, in Grey Vs. Pearson. Thereafter this rule has become famous by the name of
Wensleydale's Golden rule.
Meaning of Golden rule -

The golden rule or British rule departs from its strictly literal rules, it is elaboration or extension of
the literal rule. The golden rule of interpretation allows judges to depart from a word normal meaning in
order to avoid an absurd result
According to Maxwell, "The golden rule is that words of Institute must prima facie be given their
ordinary meaning.
According to the golden rule in the construction of a statute, the Court must adhere to the
ordinary meaning and grammatical construction of the words used.
It is a modification of the principle of literal or grammatical interpretation.
The golden rule can be used in two ways -
the golden rule can be used in a narrow sense and wider Sense.
Importance of the Golden rule of Interpretation -

1) it departs from its strictly literal rules
2) the courts adopt the golden rule of interpretation in order to arrive at a perfect interpretation which
would bring out the true meaning of the language, in the process of giving effect to the real intention of
the Legislature.
The golden rule in nutshell -

The golden rule of Interpretation contains the following points
 Modification of literal rule

 Different from the literal rule
 Application of literal rule may lead to an absurd interpretation of a statute.
 Golden rule tries to avoid the absurd and abnormal result.
Application of Golden Rule -

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Application of golden rule depends upon the consequences. Where the situation demands the
application of the golden rule it is important to consider the effect or consequences, which would result
come out from it, for the of one point out the real meaning of the words.
Advantages and disadvantages of Golden rule -

Here are some advantages and disadvantages of the golden rule which are as follows -
Advantages of Golden rule -
1. With the help of golden rule errors in drafting can be corrected immediately.
2. Decisions are made more in line with Parliament intentions.
3. It helps to give a rational result.
4. It helps in closing any loophole.
5. It brings common sense to the law.
6. It allows the court to make sensible decisions
7. It prevents parliament from having to pass amending legislation
8. It respects the authority of parliament because it only allows wording to be altered in very limited
situations where the outcome would be absurd or repugnant
Disadvantages of the golden rule -
1. Infringe separation of powers.

2. Judges have no power to intervene for pure justice where there is no absurdity.
3. Judges cannot add or modify a statute.
4. It only allows judges to change the wording of statutes in very limited circumstances
5. Micheal Zander describes it as a feeble parachute because it is not much use
6. It could not be used in cases like Berriman case because although the situation could be considered
unfair it was not absurd or repugnant
7. It is unpredictable and lacks guidelines
Relevant case laws -
Lee Vs Knapp 1967 (2) QB 442- (accident case)
In this case, the interpretation of the world 'stop' was involved. Under section 77(1) of
the road traffic Act, 1960 a driver causing an accident shall stop after the accident. In this
case, the driver stopped for a moment after causing an accident and then moved away.
Applying the golden rule the Court held that requirement of the section had not been followed
by the driver as he had not stopped for a reasonable time of period requiring interested
persons to make necessary inquiries for him about the accident.
In Tarlochan Dev Sharma v. the State of Punjab, AIR 2001, SC 2524, the ques琀椀on of
interpreta琀椀on of the words ‘abuse of his powers’ in the expression ‘abuse of his powers or
habitual failure to perform his du琀椀es’ in Sec琀椀on 22 of Punjab Municipal Act, 1911 was involved.
The Supreme Court observed that to 昀椀nd the meaning of a word not de昀椀ned in an enactment the
Courts apply the ‘subject of the enactment where the word occurs and have regard to the object
which the legislature has in view. In selec琀椀ng one out of the various meanings of a word regard
must always be had to the context. ‘Abuse of power’ in the context implies a willful abuse or an
inten琀椀onal wrong. An honest though the erroneous exercise of a power or indecision is not an
abuse of power.
The distinction between Grammatical and Golden Interpretation

X` GRAMMATICAL INTERPRETATION GOLDEN INTERPRETATION
1 It is also called as the 'Literal Interpreta琀椀on' It is also called as 'Func琀椀onal Interpreta琀椀on'
It depends upon the le琀琀er of enacted law (litera It depends upon the 'spirit' of the enacted law
2 legis) and the 'legisla琀椀ve intent'
3 It interprets only the 'verbal expression' of the It looks beyond the 'litera legis'. It seeks
statute. It does not go beyond the 'litera legis' elsewhere for some other and more sa琀椀sfactory

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inten琀椀on of the Legislature. evidence to 昀椀nd out the truth.

Where the Gramma琀椀cal Interpreta琀椀on fails, the
In the Gramma琀椀cal Interpreta琀椀on, the words Logical Interpreta琀椀on comes into help, i.e. to
construed according to the popular or dic琀椀onary 昀椀nd out 'senten琀椀a legis' (legisla琀椀ve intent) from
meaning of the term. It gives the plain (natural/ other sources, i.e. the external and internal aids
4 ordinary) meaning. of the statute.
5 It is used frequently It is used rarely
Logical Interpreta琀椀on developed a昀琀er the
6 It is the most tradi琀椀onal one Gramma琀椀cal Interpreta琀椀on came into existence.
Lord Wensleydale propounded this rule in the
7 This is a very old rule case of Grey Vs. Pearson.
9. MISCHIEF RULE AND ITS IMPORTANCE (HEYDON'S RULE).
Answer:
Introduction
The mischief rule is the third rule of statutory construc琀椀on tradi琀椀onally applied by English
Courts. The other two are the ‘Plain meaning rule’ (also known as ‘primary rule’ or ‘literal rule’ or
‘gramma琀椀cal rule) and the golden rule.
The Mischief rule is narrower applica琀椀on than the golden rule or the plain meaning rule, in that
it can only be used to interpret a statute and, strictly speaking, only when the statute was passed
to remedy a defect in the common law. The applica琀椀on of the Mischief rule gives the Judge more
discre琀椀on than the literal and the golden rule as it allows him to e昀昀ec琀椀vely decide on Parliament’s
intent.
Meaning of Mischief Rule

The Mischief rule of construc琀椀on is “that Courts must adopt that construc琀椀on which shall
suppress the mischief and advance the remedy” by looking to what the law was before the statute
was passed in order to discover what gap or mischief the statute was intended to cover. ‘Mischief
rule’ is the rule of interpreta琀椀on in which the interpreta琀椀on is done in such a way so as to
suppress the mischief intended to be remedied by the statute”
The Mischief Rule says that Judges must go deep to see the inten琀椀on of legislature and object
of the statute to 昀椀nd out what is the mischief sought to be remedied by the legislature. For this
purpose, the Court may take the assistance of counsels, refer all materials, connected with the
statute, such as press, agita琀椀on, comments of legal experts, journals, debates on the 昀氀oor of
Parliament, Law Commission Reports etc.
The mischief rule is applicable only when the words in ques琀椀on are ambiguous and are
reasonably capable of more than one meaning. The Court is en琀椀tled to ascertain the inten琀椀on of
the Legislature to remove the ambiguity by construing the provision of the statute as a whole
keeping in view what was the mischief when the statute was enacted and to remove which the
Legislature enacted the statute. It would be the duty of the Courts to adopt that construc琀椀on
which would advance the object underlying the Act.
The main aim of the mischief rule is to determine the ‘mischief and defect’ that the statute in
ques琀椀on has set out to remedy, and what ruling would e昀昀ec琀椀vely implement this remedy.

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Heydon’s Rule
The Mischief Rule was 昀椀rst laid in Re Heydon’s case. In this case, a college had certain
proper琀椀es in its own name. The management had given certain lands to W and his son for their
lives and a昀琀er them to S and G. In England, during 16 th Century, there existed a system called
‘Doubling of Estates’ and the giving of property in the above way was valid. During those days
misappropria琀椀on of the proper琀椀es of ecclesias琀椀cal and religious ins琀椀tu琀椀ons was going on through
the system of doubling of estates. To prevent the doubling of estates, the England parliament
enacted “The Statute-31 Henry-VIII”. Under this Act, the proper琀椀es of the college were taken
away by Crown and also the previous leases and instruments were cancelled. Heydon challenged
it in the Court. The Court took the guidance of the mischief rule of interpreta琀椀on and upheld the
Statute-31 and also the act of the Crown.
The object of the Parliament was to protect the proper琀椀es of ecclesias琀椀cal (rela琀椀ng to the
Chris琀椀an Church or its clergy) and religious ins琀椀tu琀椀ons. The Statute-31 provided the remedy to
protect with that object.
In Heydon’s case, the Court ruled that there were four points to be taken into considera琀椀on
when interpre琀椀ng a Statute. In this case, Lord Coke observed the following “That for the sure and
true interpreta琀椀on of all statutes in general (by the penal or bene昀椀cial, restric琀椀ve or enlarging of
the Common Law) four things are to be considered:
Ist: what the Common Law before the Act?
2nd: What was the mischief and e昀昀ect for which the Common Law did not provide?
3rd: What remedy the Parliament hath (had) resolved and appointed to cure the disease of the
Commonwealth? and
4th: The true reason of the remedy and then the o昀케ce of all the Judges is always to make such
construc琀椀on as shall suppress the mischief and advance the remedy and to suppress subtle
inven琀椀ons and evasions for the con琀椀nuance of the mischief and ‘pro privato commodo’ and to
add force and life to the cure and remedy according to the cure and remedy according to the true
inten琀椀on of the makers of the Act ‘pro bono Publico’.
Mischief Rule was applied in Smith v. Hughes. It deals with the Street O昀昀ences Act, 1959,
where it states that the common pros琀椀tute to loiter or solicit in a street for the purpose of
pros琀椀tu琀椀on, where a street indicated that it was a place and not a person. The overall case was to
deal with cleaning up the street for people to walk along the streets without being molested or
solicited by pros琀椀tutes. The pros琀椀tute would be penalised and arrested and would be found
guilty of the o昀昀ence if they were to be solici琀椀ng in the streets. In this case, the ques琀椀on was
whether a woman who had tapped on a balcony and hissed at men passing by was guilty of an
o昀昀ence under the Act. Parker LCJ found her guilty. He says, “I approach the ma琀琀er by considering
what the mischief is aimed at by this Act. Everybody knows that this was an Act intended to clean
up the streets, to enable people to walk along the streets without being molested or solicited by
common pros琀椀tutes. Viewed in that way, it can ma琀琀er li琀琀le whether the pros琀椀tute is solici琀椀ng
while in the street or standing in a doorway or on a balcony”.
Purposive Construction
The mischief (Heydon’s) rule is also known as the rule of ‘purposive construc琀椀on’ since it
emphasizes advancing the purpose and the object of the statute.
Relevant cases in India:
In Kanwar Singh v. Delhi Administration AIR, 1965, SC 881, the o昀케cers of the respondents,
while rounding up stray ca琀琀le, were beaten up by the appellants the owners of the ca琀琀le. When
prosecuted for an o昀昀ence under Sec琀椀on 332, Indian Penal Code the appellants pleaded right of
private defence of property. They also contended that the ca琀琀le were not abandoned within the
meaning of Sec琀椀on 418, Delhi Municipal Corpora琀椀on Act, 1957 in that abandoned means
completely leaving a thing as a 昀椀nal rejec琀椀on of one's responsibili琀椀es so that it becomes
ownerless as have been described in the dic琀椀onaries. The Supreme Court, while rejec琀椀ng this

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argument, held that it is not necessary that the dic琀椀onary meaning of a word is to be always
adhered to even if the context of an enactment does not so warrant. In the present instance, to
know the mind of the legislature, it is expedient to see what mischief was intended to be
suppressed and what remedy advanced. So interpreted, the word abandoned must mean let loose
or le昀琀 una琀琀ended.
In M. Nizamuddeen v. M/s. Chemplast Sunmar Limited, AIR 2010, SC 1765, the words "in or
through the port areas" are used in Rule 5 of the Environment (Protec琀椀on) Rules, 1986 made
under Sec琀椀on 25, Environment (Protec琀椀on) Act, 1986. There is a prohibi琀椀on on the manufacture,
handling or storage of hazardous substances in Coastal Regula琀椀on Zone under the Coastal
Regula琀椀on Zone No琀椀昀椀ca琀椀on of 1991. An excep琀椀on to this was, however, carved out permi琀�ng
transfer of hazardous substances from ships to ports, terminals and re昀椀neries and vice-versa "in
the port areas". The Supreme Court held that the words "in the port areas", have to be given
purposive construc琀椀on, and so construed they must be read as "in or through the port areas", the
words as used in Rule 5 of the Environment (Protec琀椀on) Rules, 1986.
10. RULE OF STRICT CONSTRUCTION OF PENAL STATUTES, ITS STRENGTHS AND WEAKNESSES
Answer:
What is Penal Statute?

 A penal statute is one which imposes a pecuniary penalty or other punishment for an
o昀昀ence.
 A Penal Statute is one which provides a penalty for some o昀昀ence of a public nature.
 Penal Statutes provide for penal琀椀es for disobedience of the law by the o昀昀ender by
making him liable to imprisonment, 昀椀nes, forfeiture or even death. If the Statute
enforces obedience to the command of the law by punishing the o昀昀ender and not
merely redressing an individual, who may have su昀昀ered the statute is penal.
The Rule of Strict Construction of Penal Statute

The rule is stated by Mahajan C.J. in Tolaram v. State of Bombay, is that “If two possible and
reasonable construc琀椀ons can be put upon a penal provision, the Court must lean towards that
construc琀椀on which exempts the subject from penalty rather than the one which imposes a
penalty. It is not competent for Court to stretch the meaning of an expression used by the
legislature in order to carry out the inten琀椀on of the legislature.
In State of Jharkhand v. Ambay Cements, the Supreme Court held that it is se琀琀led rule of
interpreta琀椀on that where a statute is penal in character, it must be strictly construed and
followed.
The basic rule of strict construc琀椀on of a penal statute is that a person cannot be penalized
without a clear le琀琀er of the law. Presump琀椀ons or assump琀椀ons have no role in the interpreta琀椀on
of penal statutes. They are to be construed strictly in accordance with the provisions of law.
Nothing can be implied. In such cases, the Courts are not so much concerned with what might
possibly have been intended. Instead, they are concerned with what has actually been said.
Guiding principles of Strict Construction of Penal Statutes

From the rules enunciated by di昀昀erent Courts in di昀昀erent cases, the following guiding principles
can be formulated:
1. In criminal cases, strict construc琀椀on is the general rule of construc琀椀on.
2. If the Penal Sec琀椀on covers only some cases of persons, their essence cannot be extended to
cover other persons. Sec琀椀on 82 of IPC deals with an act done by a child below 7 years of
age. Sec琀椀on 83 deals with acts of children who are above seven but below 12 years of age.
The two sec琀椀ons make no provision for an infant who is of exact 7 years. It is submi琀琀ed
that such an infant should be dealt with under Sec琀椀on 82 of the code because penal

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statutes are to be interpreted strictly. In order to warrant a convic琀椀on for an o昀昀ence a case
must fall within the ambit of the de昀椀ni琀椀on of the o昀昀ence charged and the rule is that the
bene昀椀t of all reasonable doubts must always go the accused.
3. If there is no ambiguity, and the act or omission by the accused falls clearly within the
mischief of the statute, the statute is to be interpreted like any other law i.e., the full e昀昀ect
will be given to the statute.
4. Penal statutes generally have a prospec琀椀ve opera琀椀on. No penal statute should be given a
retrospec琀椀ve opera琀椀on Ar琀椀cle 20(1) of the Indian Cons琀椀tu琀椀on.
5. Where certain procedural requirements have been laid down by a statute to be completed
in a statute dealing with punishments, the Court is duty-bound to see that all these
requirements have been complied with before sentencing the accused.
Relevant Cases:
In Ravula Hariprasad Rao v. State, AIR 1951, SC 204, a servant of the appellant delivered petrol to
three cars without taking coupons from them. This was in viola琀椀on of clauses 5 and 22 of the
Motor Spirit Ra琀椀oning Order, 1941 made under Rule 81(2) of the Defence of India Rules. Since no
coupons were taken from them, necessary endorsements were also not made at the back of the
coupons as required by clause 27A of the Order. On being prosecuted for these illegal omissions,
the appellant proved that on the day of the occurrence he was out of the sta琀椀on. Consequently, in
the absence of mens rea, he could not be punished. The Supreme Court held that mens rea was an
essen琀椀al element to be proved under clauses 5 and 22. Since the appellant was out of the sta琀椀on
on the day, he could not be held responsible for the mistakes of his servant who should have
taken coupons from the customers. But the appellant was guilty under clause 27A because this
provision casts a strict liability on the petrol dealer. The object of this enactment was that the
petrol dealer should set up complete machinery to ensure that necessary endorsements are made
on the coupons against which petrol is supplied. Even if the endorsements could not be made
because of the fault of the servant, the appellant could not escape liability because he has failed
to ensure the compliance of the law.
In Kedar Nath v. State of West Bengal, AIR 1954, SC 496, an o昀昀ence under an Act punishable with
imprisonment or 昀椀ne or both was commi琀琀ed by the appellant in 1947. The Act was amended and
the punishment in the form of the 昀椀ne was enhanced to the tune of an amount equivalent to the
amount procured by the o昀昀ender through his o昀昀ence. The Supreme Court held that this enhanced
punishment could not be meted out to the o昀昀ender in view of clear provisions of Ar琀椀cle 20(1) of
the Cons琀椀tu琀椀on which says that no penal statute should be given a retrospec琀椀ve opera琀椀on.
Principles of Strict Construction of Penal Statutes as laid down by Maxwell

According to Maxwell, the strict construc琀椀on of penal statutes seems to manifest itself in four
ways:
The First Way: Express Language:
The 昀椀rst requirement is that the o昀昀ence in the statute must be manifestly de昀椀ned with
accurate terms and without any ambiguous meanings. An act or omission may be treated as an
o昀昀ence and it depends upon the de昀椀ni琀椀on given by the concerned penal statute.
Second Way: Explana琀椀on of o昀昀ence:
The Legislature must explain the elements of an o昀昀ence. It must men琀椀on clearly the essen琀椀al
condi琀椀on in which the act of a person can be treated as an o昀昀ence.
Third Way: Punishments:
Imposing punishments is the essen琀椀al ingredient of the penal statures. For the graver o昀昀ences,
punishment should be severe such as imprisonment (rigorous or simple) and for the lighter
o昀昀ences penalty by way of 昀椀nes. For certain o昀昀ences, either imprisonment or penalty or both
may be prescribed.
Fourth Way: Jurisdic琀椀on and Procedure:
The criminal act must be inquired and tried by the competent Court in the prescribed
procedure.

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11. BENEFICIAL (LIBERAL) CONSTRUCTION, WITH ILLUSTRATIONS.

Answer:
Meaning of ‘Beneficial Statute’ [Welfare or Socio-economic or Remedial Statute]

A Statute which purports to confer a bene昀椀t on individuals or a class of persons, by relieving
them of onerous obliga琀椀ons under contracts entered into by them or which tend to protect
persons against oppressive act from individuals with whom they stand in certain rela琀椀ons is called
bene昀椀cial legisla琀椀on or statute.
Bene昀椀cial statutes may be in the form of ‘Remedial Statutes’ or ‘Welfare Statutes’ or ‘Socio-
economic statutes’.
A remedial statute is one which remedies defect in the pre-exis琀椀ng law, Statutory or otherwise
for the bene昀椀t of the society and to suit to the changed condi琀椀ons of society.
A welfare statute is one which aims to look a昀琀er the well-being of the people by keeping good
health and enjoying all good things in life.
A Socio-economic statute is one which is made with the object of securing social and economic
welfare of the deprived classes of society and the economic development of the na琀椀on.
The Direc琀椀ve Principles of State Policy in Part IV (Ar琀椀cles 36 to 51) of the Cons琀椀tu琀椀on are
bene昀椀cial legisla琀椀on to the ci琀椀zens. As per Direc琀椀ves, the Indian Government enacted several
statutes for the bene昀椀t of people. Some of them are the Employees’ Provident Fund and other
Miscellaneous Provisions Act, 1948, the Employees’ Pension Scheme, 1995, the Payment of
Gratuity Act, 1972, the Payment of Bonus Act, 1972, the Employees’ Family Pension Scheme, 1971,
the Right of Children to Free Remunera琀椀on Act, 1976 etc.
Rule of Beneficial Construction of Statutes

The bene昀椀cent construc琀椀on rule depends upon the legal maxim ‘Salus Populi est suprema lex’
i.e., the welfare of the people is the supreme for the law.
The welfare or bene昀椀cial statutes contain certain bene昀椀cial provisions and remedies. The
legislature intends to render bene昀椀ts to the weaker sec琀椀ons.
The Courts while interpre琀椀ng the bene昀椀cial or welfare statutes and other statutes should
follow the following principles or guidelines.
1. The Courts should take the generous view: The principle established in the construc琀椀on of
a statute is that there is no room for taking a narrow view, but that the Court is en琀椀tled to
be generous towards the persons on whom the bene昀椀t has been conferred.
2. Courts should adopt that construc琀椀on which advances, ful昀椀ls, and furthers the object of
the Act rather than the one which would defeat the same, and render the protec琀椀on
illusory.
3. A bene昀椀cial piece of legisla琀椀on has to be construed in its correct perspec琀椀ve so as to
fruc琀椀fy, the legisla琀椀ve intent underlying its enactment.
4. When two views are possible on its applicability to a given set of employees, that view
which furthers the legisla琀椀ve intent should be preferred to the one which frustrates it.
5. Construc琀椀on should serve the purpose of the enactment and should not defeat it.
Construc琀椀on should be such that no part of the enactment is rendered o琀椀ose or
surplusage.
6. When bene昀椀cial legisla琀椀on is construed, a wider interpreta琀椀on must be given for the
advantage of the sec琀椀on of people, the target group of the enactment.
7. While construing the bene昀椀cial legisla琀椀on, the Courts must look at them as they are
cons琀椀tu琀椀onally valid or not.
8. Courts should adopt a construc琀椀on which advances the policy of the legisla琀椀on to extend
the bene昀椀t rather than one which curtails the bene昀椀t.
9. Literal construc琀椀on is not the invariable rule. The court should construe meaningfully in
appropriate cases. If literal meaning produces an anomalous (devia琀椀ng from what is

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standard, normal, or expected), absurd and unjust result which may be viola琀椀ve of
Cons琀椀tu琀椀on, the court should avoid it and adopt a construc琀椀on which would advance the
object and purpose of the provision of the statute.
10. The Court should make a purposeful interpreta琀椀on so as to ‘e昀昀ectuate’ the inten琀椀on of
the legislature and not a purposeless one in order to ‘defeat’ the inten琀椀on of the
legislators wholly or in part.
11. According to bene昀椀cent construc琀椀on, where an Act does not expressly confer a right to
the workman but does not indicate any nega琀椀ve inten琀椀on either, that Act must be
construed in the interest of the workmen.
12. Benignant (bene昀椀ciary) provision must receive a benignant construc琀椀on and even if two
interpreta琀椀ons are permissible, which furthers the bene昀椀cial object should be preferred.
13. The language of a bene昀椀cial statute must be construed so as to suppress the mischief and
advance its object.
Illustrations
1. In B. Shah v. Presiding O昀케cer, AIR 1978, SC 12, the ques琀椀on before the Court was the
interpreta琀椀on of Sec琀椀on 5 of the Maternity Bene昀椀ts Act, 1961 under which an expectant mother
employee could take a maximum of twelve weeks of maternity leave, pre-birth and post-birth, on
full salary. The facts, in that case, were that a woman worker who went on maternity leave was
paid seventy-two days wages calculated on the basis of the six-day week for twelve weeks
omi琀�ng twelve Sundays. She contended that she should be paid wages for eighty-four days as a
week consisted of seven days. The Supreme Court ordered to pay wages for eighty-four days and
stated that the statute is a bene昀椀cial piece of legisla琀椀on intended for the purpose of achieving
social jus琀椀ce for women workers. Ar琀椀cle 42 of the Cons琀椀tu琀椀on has recognised it as a Direc琀椀ve
Principle of State Policy. The policy behind Sec琀椀on 5 of the Maternity Bene昀椀t Act, 1961 is that the
mother worker should not only be able to meet her both ends during the leave period but also be
able to revitalise some of her diluted energy with a view to maintaining her e昀케ciency as a worker
as also to be able to nurse her new-born child. Being bene昀椀cial legisla琀椀on with such a noble
object in view, the enactment has to be interpreted bene昀椀cially.
2. In Spring Meadows Hospital v. H. Ahluwalia, the Supreme Court has held that if the parents
have hired the services of a hospital for the bene昀椀t of their child they and the child can maintain
independent ac琀椀ons against the hospital for de昀椀cient services.
3. In Andhra University v. Regional Provident Fund Commissioner of Andhra Pradesh and other,
and Osmania University v. Regional Provident Fund Commissioner and another, AIR 1986, SC 1234,
the Supreme Court held that the Employees Provident Fund and Miscellaneous Provisions Act,
1952 is a bene昀椀cent piece of social welfare legisla琀椀on aimed at promo琀椀ng and securing the well-
being of the employees and the court will not adopt a narrow interpreta琀椀on which will have the
e昀昀ect of defea琀椀ng the very object and purpose of the Act. Once it is found that there is an
establishment (in the instant cases the Department of Publica琀椀ons and Press of the University)
which is a factory engaged in an industry speci昀椀ed in Schedule I and employing twenty or more
persons, the provisions of the Act will get a琀琀racted to the case and it makes no di昀昀erence to this
legal posi琀椀on that the establishment run by a larger organisa琀椀on which may be carrying on other
addi琀椀onal ac琀椀vi琀椀es falling outside the Act.
12. INTERNAL AIDS OF INTERPRETATION OF STATUTES (PREAMBLE IMPORTANT).

Answer:
 Interpretation means the process of ascertaining the true meaning of the words used in a
statute.
 The object of interpretation of statutes is to determine the intention of the legislature
conveyed expressly or impliedly in the language used.

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 As stated by Salmond, “By interpretation or construction is meant, the process by which

the courts seek to ascertain the meaning of the legislature through the medium of
authoritative forms in which it is expressed.”
Jurists take the help of both Rules and Aids in the interpretation of Statutes. As stated by the
Supreme Court in K.P. Varghese v. Income Tax Officer, Ernakulum, interpretation of statute
being an exercise in the ascertainment of meaning, everything which is logically relevant should
be admissible. A Rule is a uniform or established course of things. There are three rules of
interpretation of statutes- Literal, Golden and Mischief. Aid, on the other hand, is a device that
helps or assists. For the purpose of construction or interpretation, the court has to take recourse to
various internal and external aids.
Internal Aids
Internal aids mean those aids which are available in the statute itself, though they may not be part
of enactment. Some Internal Aids are-
1. Title of the Statute

Long title – Every Statute is headed by a long title and it gives the description of the object of an
Act. For e.g. the long title of the Code of Civil Procedure, 1908, is – “An Act to consolidate and
amend the laws relating to the procedure of the Courts of Civil Judicature”.
In recent times, the long title has been used by the courts to interpret a certain provision of the
statutes. However, it is useful only to the extent of removing the ambiguity and confusions and is
not a conclusive aid to interpret the provision of the statute.
Cases
1. In Re Kerala Education Bill, the Supreme Court held that the policy and purpose may be
deduced from the long title and the preamble.
2. In Manohar Lal v. State of Punjab, the Long title of the Act is relied upon as a guide to decide
the scope of the Act.
Although the title is a part of the Act, it is in itself not an enacting provision and though useful in
case of ambiguity of the enacting provisions, is ineffective to control their clear meaning.

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Short Title – The short title of an Act is for the purpose of reference & for its identification. It
ends with the year of the passing of the Act. For e.g. Section 1 of the Code of Civil Procedure,
1908, says –“This Act may be cited as the Code of Civil Procedure, 1908. It shall come into force
on the first day of January 1909.”
Even though the short title is a part of the statute, it does not have any role in the interpretation of
the provisions of an Act.
2. Preamble
The main objective and purpose of the Act are found in the Preamble of the Statute. It is a
preparatory statement and contains the recitals showing the reason for the enactment of the Act.
E.g. the Preamble of the Indian Penal Code, 1860, is “Whereas it is expedient to provide a general
Penal Code for India; it is enacted as follows”. The preamble is an intrinsic aid in the
interpretation of an ambiguous act.
Parliamentary practice to include the preamble as part of the Act was discontinued since long
and generally long title has replaced it. The preamble of a statute is a prefatory statement at its
beginning, following the title and preceding the enacting clause declaring the policy and purpose,
the reasons and motives for, and the objects sought to be accomplished by the Act. References to
the statement of objects and reasons is permissible for understanding the background, the
antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil,
which the statute was sought to remedy. The preamble being a part of statute can be read along
with other portions of the Act to find out the meaning of words in the enacting provisions as also
to decide whether they are clear or ambiguous. The preamble is a key to open the minds of the
makers of the Act and the mischief, which they intended to redress.
Cases
In Powell v. Kempton Park Racecourse Co. Ltd., Chitty, LJ .held: "it is a settled rule that
preamble cannot be made use of to control the enactment themselves where they are expressed in
clear and unambiguous terms. The preamble affords a clue to the scope of the statute where the
words construed in them without the aid of preamble are capable of more than one meaning. One
must not create or imagine an ambiguity in order to bring in the aid of the preamble.
In Burrakur Coal Co. Ltd. v. Union of India, Madholkar J. observed: "It is cardinal principle of
construction that where language of an Act is clear, the preamble must be disregarded though,

lOMoARcPSD|28401756
where the object or meaning of an enactment is not clear the preamble may be resorted to explain
it. We cannot start with the preamble for construing the provisions of an Act, though we could be
justified in resorting to it, if any, we will be required to do so.
In A. K. Gopalan v. State of Madras, the Supreme Court has held that it is a well-established rule
of interpretation that only when the Act is ambiguous a preamble can be made use of to throw
light on the express provisions of the enactment. When the enactment itself is expressed in clear
and unambiguous terms the preamble cannot be made use of to control it. An ambiguity cannot be
created or imagined just to draw a clarification from the preamble, as that would mean frustration
of the main Act.
In Kashi Prasad v. State, the court held that even though the preamble cannot be used to defeat the
enacting clauses of a statute, it can be treated as a key for the interpretation of the statute.
3. Interpretation or Definition Clause:

The Legislature has power to define the words, expressions and terms that may be used in the
enactment even artificially. Almost every Act contains an interpretation or definition clause in
which those words, terms or expressions that may be repeatedly used in the body or different
sections of the Act, are defined. For example, section 2 of the Code of Civil Procedure, 1908 has
defined Degree, Judgment, Order, Public Officer, Legal Representative etc. because these terms
are repeatedly used by the Code in its various sections, Rules and Orders. The object of a
definition is to avoid the necessity of frequent repetitions in describing the subject matter to
which the word or expression defined is intended to apply.
A definition contained in the definition clause of a particular statute, not from any other statute,
should be used for the purpose of that Act.
4. Headings and Title of a Chapter

Maxwell stated that the headings prefixed to sections or sets of sections in some modern statutes
are regarded as preamble to those sections. They cannot control the plain words of the statute but
they may explain ambiguous words.
Cases

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1. In Krishnaiah v. State of A.P. and Others, it was held that headings prefixed to sections cannot
control the plain words of the provisions. Only in the case of ambiguity or doubt, heading or sub-
heading may be referred to as an aid in construing provision.
2. In Durga Thathera v. Narain Thathera and Another, the court held that the headings are like a
preamble which helps as a key to the mind of the legislature but do not control the substantive
section of the enactment.
5. Marginal or Side Notes

Marginal or side notes may be found to give a concise indica琀椀on of the contents of the sec琀椀ons, and
to enable a reader at a glance to know through them the dri昀琀 of the sec琀椀on. It is se琀琀led rule of
interpreta琀椀on that a marginal note being merely catchwords to a sec琀椀on should not be looked into
while interpre琀椀ng the language of the said sec琀椀on, as that is no part of the sec琀椀on. The general
assump琀椀on is that the marginal notes are prepared by the person dra昀琀ing the Bill and are in the
nature of the gist of the sec琀椀ons and are not put by, or assented to by the legislature.
Cases
In Wilkes v. Goodwin Banks, LJ held that the side notes are not part of the Act and hence
marginal notes cannot be referred.
6. Illustrations
An Illustration to a section has the purpose to illustrate the principle enshrined in the statutory
provision, it does not exhaust the full content of the section, which it illustrates but equally it can
neither curtail not expand its ambit. Illustrations are examples provided by the legislature for
better understanding of the statute.
Cases
In Mahesh Chandra Sharma v. Raj Kumari Sharma, it was held that illustrations are parts of the
Section and help to elucidate the principles of the section.
7. Exceptions
An ‘exception’ means an omission or leaving out. An exception exempts something
which would otherwise fall within the purview of the general words of the statute. An
exception exempts absolutely from the operation of an enactment. An exception is intended
to carve out or take out it was from the main enactment, a portion which but for it, would fall
within the main enactment.
Example: Section 136 of the Indian Penal Code provides:

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“Harbouring deserter: Whoever, except as hereinafter excepted, knowing or having

reason to believe that an officer, soldier, sailor or airman, in the Army, Navy or Air Force of
the Government of India, has deserted, harbours such officer, soldier, sailor or airman, shall
be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
Exception: This provision does not extend to the case in which the harbour is given by a
wife to her husband.
8 Proviso
The name of a clause inserted in an act of the legislature, a deed, a written agreement, or other
instrument, which generally contains a condition that a certain thing shall or shall not be done, in
order that an agreement contained in another clause shall take effect.
It always implies a condition, unless subsequent words change it to a covenant; but when a
proviso contains the mutual words of the parties to a deed, it amounts to a covenant.
A proviso differs from an exception. An exception exempts, absolutely, from the operation of an
engagement or an enactment; a proviso defeats their operation, conditionally. An exception takes
out of an engagement or enactment, something which would otherwise be part of the subject-
matter of it; a proviso avoids them by way of defeasance or excuse.
A proviso is to provide examples of a specific case which would otherwise fall within the general
language of the main enactment. It excludes, excepts and restricts the application of a section and
its effect is confined to that case.
Cases
In CIT vs. Ajax Products Ltd, it was held that whether a proviso is construed as restricting the
main provision or as a substantive clause, it cannot be divorced from the provision to which it
stands as a proviso. It must be construed harmoniously with the main enactment.
9. Explanations
An Explanation is added to a section to elaborate upon and explain the meaning of the words
appearing in the section. The purpose is not to limit the scope of the main section but to explain,
clarify, subtract or include something by elaboration. Thus, the object of an explanation is to

lOMoARcPSD|28401756
provide additional support to the dominant object of the main provision in order to make it
meaningful and purposeful.
10. Schedules
The schedule forms an important part of the statute. This should be read along with section
enactment. Schedules at the end contain minute details, which add information to the provisions
of the express enactment. The expression in the schedule, however, cannot override the
provisions of the express enactment.
11. Punctuation
Punctuation is one of the minor elements of the statue. It should be given importance only when
there is proper punctuation used and when there is no doubt about its meaning.
12. Saving Clause

A saving clause is generally employed to restrict repealing Acts; to continue repealed Acts in
force as to existing powers inchoate rights, penalties incurred and pending proceedings upon
repealed statutes. A saving clause in the nature of an exception to certain rights, obligations,
penalties etc. may be found in any part of the statute.
13. EXTERNAL AIDS TO INTERPRETATION OF STATUTES (IMP - LEGISLATIVE DEBATES, REFERENCE

TO STATUTES IN PARI MATERIA).
Answer: Materials which are not included in the Statute and of which aids are sought in
interpre琀椀ng the statute is known as ‘externals to interpreta琀椀on’ of the statute. They are called as
‘surrounding circumstances’. These are also called ‘external sources of the statute’ or ‘extraneous
sources of interpreta琀椀on’.
External or extrinsic aids may be employed in the construc琀椀on of Statutes if the words and
language employed are not free from ambiguity and which cannot be cleared even by resort to
intrinsic aids. Extrinsic aids in the construc琀椀on of statutes are permi琀琀ed to explain the state of the
law at the 琀椀me it was passed, but not to interpret the Act. Further, resources to extrinsic aid in
interpre琀椀ng a statutory provision would be jus琀椀昀椀ed only within well-recognised limits; and
primarily the e昀昀ect of the statutory provisions must be judged on a fair and reasonable
construc琀椀on of the words used by the Statute itself.
In Babua Ram v. the State of U.P., the Supreme Court explained the importance of external aid
thus: “Now we consider the external aid to get at the crux of the ques琀椀on.
External aid to interpreta琀椀on is the secondary source, the following are known external aids to
interpreta琀椀on:
1. Statement of Objects and Reasons for Legisla琀椀on
It is usual with the minister or promoter of a bill in the legislature to a琀琀ach a Statement of
Objects and Reasons when he introduces it in the legislature. It is not a part of the bill. It explains
the objects and reasons which necessitates the passing of the Statute in the legislature. It is only
the expression of the mover. The objects and reasons seek to propound the objec琀椀ve which it
stands for, so that the members of the House may be convinced of the necessity of introducing the
bill.

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The Statement of Objects and Reasons might be admissible not for construing the Act but for
ascertaining the condi琀椀ons which prevailed when the legisla琀椀on was enacted.
2. Legisla琀椀ve Debates [Proceedings in Legislature]
Minister, while introducing the Bill gives a Statement in the Legislature. Later sec琀椀on-wise
discussion takes place. Legislature gives their opinion through their statements. Some members
propose amendments. A detailed debate takes place in the legislature and the Bill will be passed
by the majority vote and becomes a Statute.
P.V.Narsimha Rao v. State, it has been observed that “It would be seen that as per the decisions
of the Supreme Court, the statement of the Minister who had moved the Bill in Parliament, can be
looked at to ascertain mischief sought to be remedied by the legisla琀椀on and the object and
purpose for which the legisla琀椀on is enacted. The statement of the Minister is not taken into
account for the purpose of interpre琀椀ng the provisions of the enactment.”
3. Historical Se琀�ng [The events leading up to the introduc琀椀on of the bill]
The ‘historical se琀�ngs’ means the course of events which give rise to the enactment. It is also
called ‘Historical Facts’, ‘Historical background’, ‘Parliamentary History’, History of Legisla琀椀on’ and
Surrounding Circumstances’.
The state of a昀昀airs exis琀椀ng at the 琀椀me when a law was enacted, are called ‘historical facts’.
The Court is en琀椀tled to look into such historical facts as may be necessary to understand the
subject-ma琀琀er of the statute or to consider the surrounding circumstances or the course of events
in昀氀uencing the introduc琀椀on of the bill. The Court may take into account such facts or the events
of the 琀椀me which may help it to consider whether the statute was intended to alter the law or to
leave it exactly where it stood before.
The rule laid down in Heydon's case, that to a certain extent the surrounding circumstances
which led to the passing of the Act can be considered for the purpose of construing a statute – are
now well-recognised.
In Kashmir Singh v. Union of India, the Supreme Court has observed that the Courts while
construing an ongoing statute must take into considera琀椀on the changes in the societal condi琀椀on.
The Courts should also take into considera琀椀on development in science and technology.
4. Reference to other statutes
A. Reference to Statutes in Pari Materia
‘Pari’ means ‘same’, ‘Materia’ means subject-ma琀琀er. Hence, ‘pari materia’ means ‘same
subject-ma琀琀er’ and ‘Statutes in pari materia’ would refer to the statutes on the same subject
ma琀琀er. The two statutes are said to be in pari materia when they deal with the same subject,
person or thing.
The rule of construc琀椀on of statutes in ‘pari materia’ means the rule to the exposi琀椀on of one Act
by the language of another act. According to Maxwell, “light may be thrown on the meaning of a
phrase in a statute by reference to a speci昀椀c phrase in an earlier statute dealing with the same
subject ma琀琀er.”
Lord Mans昀椀eld states, “Where there are di昀昀erent statutes in pari materia made at di昀昀erent
琀椀mes, or even expired, and not referring to each other, they shall be taken and construed
together, as one system and as explanatory of each other”.
Unless there is an indica琀椀on of any change in the meaning, as may be deduced from the
purpose of the Act, the words as used in the Act deals, with the similar ma琀琀ers would be
construed as having the same meaning.
The Statutes in pari materia can be lawfully referred to determine the meaning of an
ambiguous word. In other words, in order to resolve an ambiguity, help can be taken from other
statutes also, provided that they are in pari materia i.e., on the same subject ma琀琀er. The meaning
of an uncertain word cannot be imported from any other statute. Only the statute in pari materia
could be legi琀椀mately called in aid.
The rule of construc琀椀on of statutes in ‘pari materia’ may be called as a further extension of the
basic principle of ex visceribus Actus. According to ex visceribus actus, while interpre琀椀ng any

lOMoARcPSD|28401756
provision of a Statute, the Court is required to see that statute as a whole. The rule of pari
materia permits to refer to the other statutes on the same subject ma琀琀er.
B. Previous Legisla琀椀on [Assistance of an earlier Statute]
The legislature is the competent authority to enact the Statutes on concerning subject to
remove the mischiefs. Society changes from 琀椀me to 琀椀me. When the society changes, the
circumstances also change. If the changed circumstances require, the Legislature may amend the
exis琀椀ng Act, and some琀椀mes, it brings a fresh Act in place of the exis琀椀ng Act. Some琀椀mes Courts,
while interpre琀椀ng the exis琀椀ng Act, look towards the previous Act for its interpreta琀椀on when the
inten琀椀on of the legislature is not changed.
C. The assistance of later Statutes [Help from subsequent Legisla琀椀on]
There are con昀氀ic琀椀ng opinions rela琀椀ng to Assistance of subsequent statutes. One opinion is that
it is not permissible to refer to a later statute for construc琀椀on of an earlier statute. According to
Coke, “such an Act should not be construed by any strained sense against the la琀琀er of the
previous Act, for of any exposi琀椀on should be made against the direct le琀琀er of the exposi琀椀on made
by Parliament, there would be no end of expounding”.
D. Incorpora琀椀on of earlier Act into later
While law-making, legislature adopts a device of incorpora琀椀on of an earlier Act into a later Act
for the sake of convenience. In order to avoid verba琀椀m reproduc琀椀on of the provision of the
earlier Act into the later, the legislature incorporates the required provisions of earlier Act or
referred to in the later Act and they form part and parcel of the later Act as if they had been bodily
transposed into it. It is presumed that such incorpora琀椀on is with all the amendments made in it
琀椀ll the date of incorpora琀椀on.
E. Cons琀椀tu琀椀on of Consolidated Statutes
The primary rule of construc琀椀on of a consolida琀椀on Act is to examine the language used in the
Act itself without any reference to the repealed Statutes.
It is only when the consolida琀椀on Act gives no guidance as to its proper interpreta琀椀on that it is
permissible to refer to the repealed enactments for guidance and it is never legi琀椀mate to have
recourse to repealed enactments to make obscure or ambiguous that which is clear in the
Consolida琀椀on Act.
F. Codifying Statutes
Codifying statute is a statute which presents an orderly and authorita琀椀ve statement of the
leading rules of law on a given subject.
Sutherland states, “statute incorpora琀椀on into a Code is presumed to be incorporated without
change even though it is re-worded and re-phrased and in the organisa琀椀on of the Code its original
sec琀椀ons are separated. Where, however, the legisla琀椀ve intent is clear that a change in the law is
intended, the new provision prevails. In case of ambiguity, it is permissible to resort to the prior
legisla琀椀ve history of the Act, the form and language of the prior statute, prior interpreta琀椀on and
all ma琀琀ers in pari materia in order to arrive at the true meaning of the Code’s provision.
4. Foreign Decisions
Where the Indian Statute prac琀椀cally reproduces the English enactment, it would not be proper
to neglect the judicial decisions in England which have decided the proper construc琀椀on of the
sec琀椀on to be one thing and not another.
5. Contemporanea Exposi琀椀o [Contemporaneous exposi琀椀on, or construc琀椀on]
The word ‘Contemporanea’ means ‘of the same 琀椀me or period’ and ‘exposi琀椀o’ means
‘explana琀椀on’. The rule ‘contemporanea exposi琀椀o’ is that ‘interpre琀椀ng a statute or any other
document by referring to the exposi琀椀on it has received from contemporary authority. In other
words, the meaning a琀琀ributed to the words of a statute at the 琀椀me of passing of that Statute shall
be retained by those words even subsequently.
6. Text-books
Where the language of a Statute is not precise and words employed therein are capable of
bearing more than one meaning, the textbooks may be referred to resolve the ambiguity.

lOMoARcPSD|28401756
However, a reference to textbooks shall not bind the Court in any manner. It shall be the
discre琀椀on of the Court either to accept or to reject the meaning given in the textbook.
14. WHAT ARE THE WAYS TO RESOLVE A CONFLICT BETWEEN PARENT LEGISLATION AND
SUBORDINATE LEGISLATION?
Answer: Con昀氀ict between Parent Legisla琀椀on/Act and Subordinate Legisla琀椀on
The word con昀氀ict literally means "inconsistency or repugnancy". Con昀氀ict is a situa琀椀on in which
one power tends to disregard another power resul琀椀ng in clash or con昀氀ict of interests between two
individuals or two authori琀椀es.
Subordinate legisla琀椀on or delegated legisla琀椀on is an Act/legisla琀椀on, passed by virtue of
authority conferred by the parent Act/Legisla琀椀on. Hence, the provision of the subordinate
legisla琀椀on must be in consonance with the provisions of the parent Act and should not
surpass/super cede/ override the parent Act. In case any part of the subordinate legisla琀椀on is
directly or indirectly is in con昀氀ict with the parent Act, it can be challenged on the ground that it is
ultra vires the parent Act. The expression ultra vires (ultra = beyond and vires =power) means
"beyond the power". The subordinate legisla琀椀on should be passed by the subordinate authority
within the powers conferred on it by the parent Act. If the subordinate Act is made
impugning/viola琀椀ng/infringing the procedure laid down in the parent Act, it is to be declared void
I.e. Invalid.
The con昀氀ict between the Parent Act/legisla琀椀on and subordinate Legisla琀椀on takes palace under
the following circumstances—
1. When the subordinate legisla琀椀on is passed ultra vires the power conferred on it by the
Parent Act.
2. When it super cedes/surpasses the Parent Act.
3. When it contradicts the exis琀椀ng law in force.
4. When it violates the provisions of the cons琀椀tu琀椀on or general law.
5. When there is an excessive delega琀椀on conferred, the subordinate legisla琀椀on con昀氀icts with
the parent Act.
6. When the subordinate legisla琀椀on did not adhere to the procedure prescribed/laid down
by the parent Act.
7. If the subordinate legisla琀椀on o昀昀ends against any of the mandatory provisions of the
cons琀椀tu琀椀on or the Parent Act.
8. If the subordinate law-making authority wrongfully or unlawfully exercises its authority
while enac琀椀ng the subordinate legisla琀椀on.
9. When the subordinate law-making authority sub-delegates its authority.
CASE Laws: Ram Prasad V. State of U.P. (AIR 1952 All 843): In this case, con昀氀ict arose between the
Parent Act and Subordinate Legisla琀椀on, sec琀椀on 49 of the U.P Panchayat Raj Act, 1947. The Parent
Act prescribed minimum numbers as a quorum to try. But the subordinate legisla琀椀on provided for
the trial by a bench cons琀椀tuted under the U.P Panchayat Raj Act. It was held the subordinate
legisla琀椀on void/invalid on the ground that it was In con昀氀ict with the Parent Act.
In Banwarilal vs. the State of Bihar. AIR 1961 SC 8.19 Sec琀椀on 12 of the Mines Act, 1952 made it
obligatory on 琀椀ne Central Government to consult the Mining Board, cons琀椀tuted under the Act,
before making rules thereunder. The framing of the rules without consul琀椀ng the Mining Board has
been held as invalid by the Supreme Court because it was ultra vires the procedure prescribed
under the Parent Act.
Similarly In Delhi Transport Undertaking vs. B.B.L. Hajery (1972) 2 SCC 744 the Supreme Court
held that the rules framed under Delhi Corpora琀椀on Act, 1957 were ultra vires the parent Act. In
the said Act Sec琀椀on 90(1) of the Delhi Corpora琀椀on Act, 1957 designates the General Manager to
be the competent appoin琀椀ng authority of all persons drawing a salary less than Rs. 350/- p.m. Sec-
95 provided that no person shall be dismissed by any authority subordinate to the appoin琀椀ng
authority. But the rules framed under the Act gave power to the General Manager to delegate all

lOMoARcPSD|28401756
his powers to Assistant General Manager. This rule was struck down by the Supreme Court as it
was in con昀氀ict with Sec-90 and Sec-95 of the parent Act.
CASES
15. Gramma琀椀cal Interpreta琀椀on
A. Sales of Green ginger were subjected to sales tax and it was contended that they were not
so liable as they cons琀椀tuted ‘vegetable’ which were exempted from sales tax. The
expression ‘vegetable’ is not de昀椀ned in the Act. Decide whether green ginger falls within
the meaning of the term ‘vegetables’ or not. (July-2019, May-2017)
B. Vegetables are exempted from the levy of sales tax under the Sales Tax Act. A vegetable
vendor is selling betel leaves. He contends that betel leaves fall within the scope of
‘vegetables’. Discuss (Aug-18).
C. The Sales Tax Act exempted ‘vegetables’ from the levy of sales tax. Sales of betel leaves
were subjected to sales tax by the authority. It was contended that betel leaves were not
taxable as they cons琀椀tuted ‘vegetables’ which were exempted from tax. Decide (May-14).
D. Under the Sales-tax Act, ‘Vegetables’ were exempted from the purview of tax. A vendor
of vegetables was selling coconuts. The tax authori琀椀es levied tax from the sale of
coconuts. The vendor pleaded the exemp琀椀on on the ground that coconuts fell within the
term ‘vegetables’. Can he succeed? Discuss (May-2015).
E. The Sales Tax Act exempted ‘green vegetables’ from assessment to sales tax. Sale of
sugar-cane was subjected to sales tax by the authority. The ques琀椀on was whether sugar-
cane fell within the term ‘green vegetables’. Decide (Aug-2013).
Answer: In the above-stated cases only green ginger comes under the vegetables and all the
remaining e.g. betel leaves, coconuts and sugar-cane do not come under vegetables. To decide
whether a given item comes under vegetable or not is very simple, here we should not go for the
dic琀椀onary meaning or botanical meaning of that item, we should use simple common sense
whether that item is used in our foods frequently or not if it is used frequently then it becomes
vegetable.
ISSUE:
Whether green ginger, chilly and lemon are vegetable or not? Yes, Green ginger, chilly and lemon
is vegetable.
Whether betel leaves, coconuts and sugar-cane are vegetables? No, they are no vegetables.
RULE & APPLICATION:

The act of sale of vegetable does not a琀琀ract sales tax. Therefore, when an assistant sales tax
o昀케cer wanted to tax the sale of betel leaf, a vendor objected on the ground that betel leaf was a
vegetable. He claimed exemp琀椀on. To advance his argument, he relied on the dic琀椀onary meaning
of vegetable in the Shorter Oxford Dic琀椀onary and textbooks on botany. This refers to the case of
Ramavatar Budhiprashad vs Assistant Sales Tax O昀케cer reported in AIR 1961 SC 1325 which has
become a landmark judgement by the SC.
The SC did not accept the scien琀椀昀椀c or dic琀椀onary meaning of the word vegetable and observed
that it must be construed not in any technical sense nor from a botanical point of view, but as
understood in common parlance. It held: It has not been de昀椀ned in the Act and being a word of
everyday use it must be construed in its popular sense, meaning that sense which people
conversant with the subject ma琀琀er with which the statute is dealing would a琀琀ribute to it. It is to
be understood as understood in common language. In this view, betel leaf was not a vegetable but
a condiment. Not being a vegetable, it could not enjoy exemp琀椀on from sales tax.

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The judgement lays down the basic principle that a vegetable is one that in market parlance is
known as such. This is the de昀椀ni琀椀on of vegetable for 昀椀scal laws, but not so for students of botany
who would regard betel leaf as a vegetable. So the de昀椀ni琀椀on depends upon who asks the
ques琀椀on. For a botany student, betel leaf is a vegetable, but not so for a tax collector.
Even a昀琀er this de昀椀ni琀椀on was available, controversies arose on other so-called vegetables too.
Some which travelled up to the SC are coconut, green ginger, chilly, lemon etc. Coconut was the
subject ma琀琀er of the SCs decision in the case of P A Thillai Chidambar Nair vs State of Tamil Nadu
reported in AIR 1985 SC 1644. In this case under the Tamil Nadu General Sales Tax Act, 1959, the
ques琀椀on was whether a coconut (neither tender nor dried, but a ripened one with or without
husk) could be exempted from sales tax. Jus琀椀ce V D Tulzapurkar and Jus琀椀ce Ranganath Misra held
that it was well-known that the kernel of the coconut was used as an ingredient for enhancing the
taste of food, but was hardly used as a substan琀椀al ar琀椀cle of food on the table. On this ground,
they held that it was not a vegetable.
However, Jus琀椀ce Sabyasachi Mukherjee observed that it could not be categorically said that
ripened coconut could never be considered a vegetable. However, the assesse could not adduce
enough evidence to prove it. He gave the legal verdict that the burden of proof that coconut was a
vegetable was on the person who claimed it to be so. And since he was not able to discharge the
burden of proof, it could not be regarded as a vegetable in law. On this basis, the SC 昀椀nally
decided that ripened coconut was not a vegetable.
Chilly and lemon were the subject ma琀琀er of a decision by the SC in the case of Mangulu Sahu
Ramahari Sahu vs Sales Tax O昀케cer, Ganjam, Orissa reported in AIR 1974 SC 390. In this case, under
the Orissa Sales Tax Act, 1947 the ques琀椀on was whether chillies and lemons were vegetables. The
HC had held that they were not vegetables. It had gone on the basis that before an item could be
considered a vegetable, it had to be a principal item of food. It also considered the botanical
meaning of the word. The SC observed that technical or botanical meanings should not be
considered for tax purposes. So while the HC said they were not vegetables, the SC said they were.
Green ginger came up for decision before the SC in the case of State of West Bengal vs Wasi
Ahmed reported in AIR 1977 SC 1638. In a case under the Bengal Finance Sales Tax Act, the issue
was whether green ginger was to be regarded as a vegetable as obtained in the descrip琀椀on
vegetable, green or dried, commonly known as sabji, tarkari or sak in item 6 of Schedule 1. If it
was treated so, it would be exempt from sales tax. The SC relied on the fact that in common
parlance green ginger was known as a vegetable. It was grown in the kitchen garden or on a farm
and was used for the table. It did not accept the view of the Sales Tax Tribunal that it was a
昀氀avour.
CONCLUSION:
When an item is used frequently it comes under the category of vegetables and items like betel
leaves, sugar-cane, coconut etc. are not come under vegetables because they are not used widely
in our kitchens. We should not go for a dic琀椀onary or botanical meaning of the item but usage
decides whether that item quali昀椀es to be called as a vegetable or not.
16. THE PASSERS BY MISCHIEF RULE OF INTERPRETATION – SMITH vs. HUGHES

A. THE STREET OFFENCES ACT WAS PASSED BY THE LEGISLATURE PROHIBITING
SOLICITATIONS BY PROSTITUTES AT PUBLIC PLACES. THEREAFTER, PROSTITUTES
SOLICITED FROM BALCONIES OR WINDOWS OF THEIR HOUSES. DOES IT AMOUNT TO
STREET OFFENCE? WHAT TYPE OF INTERPRETATION IS PREFERABLE? DISCUSS (MAY-
2016).
B. ‘SOLICITING IN THE STREET FOR THE PURPOSE OF PROSTITUTION’ IS AN OFFENCE
PUNISHABLE UNDER THE STREET OFFENCES ACT. A WOMAN IS MAKING SIGNS TO MEN AS
THEY PASSED IN THE STREET FROM A WINDOW. IS IT A STREET OFFENCE? (MAY-2014).
ISSUE:

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Which rule of interpreta琀椀on can be used in this case? Mischief rule

Whether the act of solici琀椀ng from balconies by pros琀椀tute is illegal? Yes
RULE:
Sec琀椀on 1(1) of the Street O昀昀ences Act, 1959: It is an o昀昀ence for a pros琀椀tute to solicit men ‘in a
street or public place’.
APPLICATION:
The above-given case is similar to the case of Smith vs. Hughes (1960), and the interpreta琀椀on
should be done by applying mischief rule.
Smith vs. Hughes (1960), under the Street O昀昀ences Act, 1959, it was a crime for pros琀椀tutes to
solicit in the street for the purposes of pros琀椀tu琀椀on, it includes all the acts to a琀琀ract them. In this
case, the pros琀椀tutes were calling men in the street from their balconies by making signs to them.
The pros琀椀tutes claimed that they are not guilty of any o昀昀ence because they are not doing this act
of solici琀椀ng from streets. The judge applied mischief rule to conclude that they were guilty as the
inten琀椀on of the Act was to cover the mischief of harassment from pros琀椀tutes.
The overall case was to deal with cleaning up the street for people to walk along the streets
without being molested or solicited by pros琀椀tutes. The pros琀椀tute would be penalised and
arrested and would be found guilty of the o昀昀ence if they were to be solici琀椀ng in the streets. In
this case, the ques琀椀on was whether a woman who had tapped on a balcony and hissed at men
passing by was guilty of an o昀昀ence under the Act. Parker LCJ found her guilty. He says, “I
approach the ma琀琀er by considering what the mischief is aimed at by this Act. Everybody knows
that this was an Act intended to clean up the streets, to enable people to walk along the streets
without being molested or solicited by common pros琀椀tutes. Viewed in that way, it can ma琀琀er
li琀琀le whether the pros琀椀tute is solici琀椀ng while in the street or standing in a doorway or on a
balcony”.
CONCLUSION:
In the given case the act of the pros琀椀tute solici琀椀ng men is illegal. Even though the pros琀椀tute
solici琀椀ng from her balcony or windows, by using mischief rule the intent of the legislature is to
stop the pros琀椀tutes from a琀琀rac琀椀ng the men, and the acts of the pros琀椀tutes from their balconies
also comes under this sec琀椀on and illegal.
17. WHETHER A STUDENT IS A CONSUMER OR NOT?

A. A term ‘Consumer’ is de昀椀ned under the Consumer Protec琀椀on Act. However, the problems
arose as to whether a student falls within the meaning of the expression ‘Consumer’. In
such a case, what type of interpreta琀椀on is preferable? Discuss (July-2019 & May-2017).
ISSUE:
Whether a student is a consumer or not? It depends on the services.
RULE:
Consumer Protection Act, 1986

The Consumer Protec琀椀on Act, 1986 in this respect was su昀케cient to ful昀椀l the requirement of every
consumer by providing various reliefs available in the Act. In India diverse groups of consumers
are available. The consumer protec琀椀on law protects the interest of every consumer irrespec琀椀ve of
age, sex, caste, place etc., with respect to all kinds of goods de昀椀ned under “Sale of Goods Act,
1930” and every kind of services possible to be contemplated as service under the Act 1986.
This Act extends protec琀椀on against Government body, statutory ins琀椀tu琀椀ons as well as corporate
sectors. The most pragma琀椀c feature of this Act is the recogni琀椀on of consumers’ right to be
informed about the quality, purity, standard and price of goods and services, which is a poten琀椀al
device to prevent exploita琀椀on.

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Concept of Service and Consumer under the Act, 1986
The term ‘service’ is defined in Section 2(1)(o) of the 1986 Act:

“service of any descrip琀椀on, which is made available to poten琀椀al users, including the provision of
facili琀椀es in connec琀椀on with banking, 昀椀nancing, insurance, transport, processing, the supply of
electrical or other energy, board or lodging or both, housing construc琀椀on, entertainment,
amusement or the purveying of news or other informa琀椀on, but does not include the rendering of
any service free of charge or under a contract of personal service”.
Therefore, it is clear from the preamble of the de昀椀ni琀椀on that service of any kind or nature that is
rendered in exchange of considera琀椀on to direct or poten琀椀al user comes within the de昀椀ni琀椀on of
service. Some types of services even enumerated in an explicit manner within the de昀椀ni琀椀on but
the de昀椀ni琀椀on of service is not limited to only those men琀椀oned explicitly. For example, medical
service is not included directly in the de昀椀ni琀椀on. However, a series of judgments are available that
iden琀椀fy medical treatment and the facility associated therewith is classi昀椀able as service under the
Consumer Protec琀椀on Act.
The term “consumer” as per Section 2(1)(d) of the 1986 Act:

“Includes any person who buys any goods for considera琀椀on or hires/avails any services for
considera琀椀on”.
Therefore, the term consumer is really broad and includes any bene昀椀ciary of service without
di昀昀eren琀椀a琀椀on with respect to the type of bene昀椀ciary or nature of goods or service he/she
purchases. Interes琀椀ngly, the scope of service in this de昀椀ni琀椀on also has no limit because of the
term “any service”. Therefore, there is no bar in accommoda琀椀ng students into the de昀椀ni琀椀on of
the consumer because “any person” connected as the purchaser to “any goods” or “any service” is
the consumer as per the Act. It is, s琀椀ll, important to 昀椀nd support, outside the consumer protec琀椀on
Act, in favour of the term consumer when it applies to the student in the a昀昀air of university-
students rela琀椀onship.
APPLICATION:
Do Educational Institutions Fall Under the Purview of the Act?

A considerable number of decisions delivered by State and Na琀椀onal level Consumer Forums are
available as of now which protects the right of students with regard to fees, wrong allotment of
roll numbers, delay in declara琀椀on of results, admission in excess of the allo琀琀ed quota,
misrepresenta琀椀on about a昀케lia琀椀on by the educa琀椀onal ins琀椀tute to various universi琀椀es etc. The
judgments related to the above-men琀椀oned cases clearly indicate that student is a consumer as per
the Act and the universi琀椀es or educa琀椀onal ins琀椀tutes fall within the category of service providers.
But the Supreme Court of India had a di昀昀ering view.
In the case of Maharshi Dayanand University v. Surjeet Kaur, relying upon all earlier judgments,
the Supreme Court held that educa琀椀on is not a commodity. Educa琀椀onal ins琀椀tu琀椀ons are not
providing any kind of service, therefore, in the ma琀琀er of admission, fees etc., there cannot be a
ques琀椀on of de昀椀ciency of service. Such ma琀琀ers cannot be entertained by the Consumer Forum
under the Consumer Protec琀椀on Act, 1986.
Further Hon’ble Supreme Court in Bihar School Examina琀椀on Board v. Suresh Prasad Sinha,
Supreme Court observed that the Educa琀椀on Boards & Universi琀椀es are not ‘Service Providers’ and
the complaints against them are not maintainable.
On the other hand, it is also necessary to assess the de昀椀ni琀椀on of the consumer under Sec琀椀on 2(1)
(d) of the Act to check that the rela琀椀onship between university and student 昀椀ts with the
conven琀椀onal rela琀椀onship of trader/service provider and consumer? If these two criteria are
sa琀椀s昀椀ed then it can be said that universi琀椀es/educa琀椀onal ins琀椀tute come within the ambit of
consumer protec琀椀on law.
Assessment of Ac琀椀vi琀椀es of University/Educa琀椀onal Ins琀椀tute

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The func琀椀ons of university/educa琀椀onal ins琀椀tutes can be divided into two main categories:
The core func琀椀on of the university/educa琀椀onal ins琀椀tu琀椀on such as impar琀椀ng educa琀椀on and
advance knowledge by providing instruc琀椀onal and research facili琀椀es to educate and train
manpower for the development of the country for the welfare of the people, their intellectual,
academic and cultural development. Here the core func琀椀ons and the ac琀椀vi琀椀es associated with it
are inseparable and this is the statutory duty of the university/educa琀椀onal ins琀椀tutes as de昀椀ned in
the Central University Act.
Secondary/Ancillary services like providing hostel or accommoda琀椀on facility, auditorium, library,
laboratory, gymnasium, canteen, transport service to and from campus, internet service etc. In
addi琀椀on to the above, university supplies various goods to the students like textbooks, study
materials, notes, video CD, other electronic material including so昀琀ware programmes etc. The
ancillary services provided by the university, undoubtedly, falls within the category of those
services and provision of goods as per the Act. For example, the hostel or accommoda琀椀on facility
falls within the meaning of board and lodging, transport facility provided to the student is also
within the scope of service. The foods and beverages provided to the students through canteen
facility, the laboratory equipment, video CD, so昀琀ware programmes etc., obviously come within
the purview of goods as per the Act.
Commercial Ac琀椀vi琀椀es such as consultancy, transfer of technology to the company through the
patent right and thereby enjoying royalty, handling private projects, Entrepreneurship incuba琀椀on
are some of the commercial ac琀椀vi琀椀es performed by the universi琀椀es/educa琀椀onal ins琀椀tutes in
order to earn the pro昀椀t. It is clearly re昀氀ected from Central University Act, 2009 that university may
enter into the partnership with industry and non-Government agencies and establish a corpus of
funds out of the pro昀椀ts of such partnership.
The Hon’ble Supreme Court, in Bangalore Water Supply & Sewerage Board v. A. Rajappa
(Bangalore Water Supply), had considered among other things, that educa琀椀onal ins琀椀tutes are
classi昀椀able as ‘Industry’ as de昀椀ned in Sec琀椀on 2(j) of the Industrial Disputes Act, 1947 while
determining the import of the aforemen琀椀oned term.
Reference of words like service, business, pro昀椀t, and industry-partnership is available within the
Central University Act, 2009, itself which clearly proves that university is not a non-pro昀椀t body
rather it has some business characteris琀椀cs inherent in the Statutes and Acts which govern the
func琀椀ons of the university.
Critical Analysis of University-Student Relationship in the Context of Consumer Protection

The students enjoy all kinds of facili琀椀es i.e. both core and ancillary services rendered by the
university or educa琀椀onal ins琀椀tutes a昀琀er paying the requisite fees. Therefore, the students are
direct bene昀椀ciaries and consumer of the services rendered by the university. A student a昀琀er
paying the requisite tui琀椀on fees deserves a good quality educa琀椀on and facili琀椀es related thereto.
Similarly, a昀琀er accep琀椀ng remunera琀椀on it should be the moral duty and obliga琀椀on for a teacher
and university to provide adequate service in terms of good quality educa琀椀on.
If the teacher or university fails to comply with this requirement then it amounts to de昀椀ciency in
service because universi琀椀es/ins琀椀tutes are impar琀椀ng educa琀椀on in exchange for considera琀椀on. But,
it is also necessary to understand that the rela琀椀onship between student and university is not an
ordinary rela琀椀on of buyer and seller in the true sense. The statutory duty of the university is 昀椀xed
by certain Acts, rules and regula琀椀ons. A student only a昀琀er complying the requirements 昀椀xed by
the university in terms of its rules and guidelines can claim his/her en琀椀tlement as a consumer of
service rendered by the university under the Act, 1986.
In my opinion, the teacher-student rela琀椀onship should not be the only deciding factor to decide
whether the various facili琀椀es provided by the university/educa琀椀onal ins琀椀tute should fall under
the term “service” as per the Act 1986 because the teacher-student rela琀椀onship is totally
subjec琀椀ve which will vary depends upon the character of an individual teacher.

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In this respect three court decisions are available and those contradic琀椀ng to each other. In Taneja
v. Calcu琀琀a District Forum it is held by Calcu琀琀a High Court that the rela琀椀onship between teacher
and student in an educa琀椀onal ins琀椀tute is not one of service-provider and consumer.
The same principle was almost followed in Central Academy Educa琀椀onal Society v. Gorav Kumar
where it was held by the court that teaching is not capable of marke琀椀za琀椀on as opposed to the sale
of books or provision of accommoda琀椀on is marketable and can be considered as service as per the
Act, 1986.
Whereas, in Oza Nirav Kanubhai v. Centre Head Apple Industries Ltd., the Na琀椀onal Commission
held that private educa琀椀onal ins琀椀tutes (i.e. ins琀椀tutes that are not statutorily established) to be
classi昀椀able as service providers, and students enrolled therein, or their sponsors, as consumers.
Therefore, the student-university rela琀椀onship although not equivalent to a rela琀椀on of consumer &
service-provider in the strict sense but complaints against the university/educa琀椀onal ins琀椀tutes are
maintainable in consumer court on the ground that student is nothing but a consumer as long as
the complaint is genuine. The student is a direct bene昀椀ciary or in other words, consumer of the
service rendered by the university is supported by the fact the provision for student’s engagement
in the academic ac琀椀vity of university including evalua琀椀on of teacher is available in Central
University Act, 2009 which implies that student is nothing but a direct consumer of educa琀椀on
service.
Rights of the Student and Responsibility of University/Educational Institute

It is impera琀椀ve to understand the various rights or en琀椀tlement of the students under
university/educa琀椀onal ins琀椀tutes in absence of which the noble mission and objects of the
university get defeated. The important rights of the students which are very essen琀椀al to protect
the interest of every student in the 昀椀eld of educa琀椀on are men琀椀oned below:
1. Right to receive a good quality educa琀椀on.
2. Right to receive all bene昀椀ts and services related to study like laboratory, library, and good
quality study materials etc.
3. Right to get proper and correct informa琀椀on related to terms and condi琀椀ons of the
university, disclosure of fees, a昀케lia琀椀on, quality standard and facili琀椀es available in the
university/ins琀椀tute etc.
4. Right against exploita琀椀on of any kind in the university/educa琀椀onal ins琀椀tute.
5. Right to care regarding the safety of students.
6. Protec琀椀on from injury on campus.
7. Right to a grievance 昀椀ling process.
It is the responsibility of the university/educa琀椀onal ins琀椀tutes to safeguard the rights of the
student in order to ful昀椀l its noble objects as enshrined in the statutes and Acts of the university.
There are various provisions available in Central University Act, 2009 which empower the
university to frame rules, guidelines, and ordinances with respect to:
1. The condi琀椀on of residence of the students to provide good quality accommoda琀椀on,
2. The condi琀椀on of residence and teaching of women students,
3. Specialised laboratory,
4. Maintenance of discipline in order to prevent ragging and for the safety of students,
5. Redressal of grievances,
6. Right to appeal against arbitrary ac琀椀on of any o昀케cer or authority of the university etc., in
order to safeguard the interest and be琀琀erment of the students.
However, there are lacunae in the Act with respect to two factors. An absence of redressal
mechanism at the individual student level and no direct remedy is available for the university if
found de昀椀cient in providing service or accused of unfair trade prac琀椀ce.
Support Available in Case Laws in Favour of Students as Consumer

The following court decisions have been quoted to substan琀椀ate the argument that student as
consumer and university as the service provider.

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Jai Kumar Mi琀琀al v. Brilliant Tutorials.

In this case, it was held that the supply of defec琀椀ve study materials by an ins琀椀tute can sustain a
valid claim against it for de昀椀ciency of service.
In Bhupesh Khurana v. Vishwa Budha Parishad
Due to misrepresenta琀椀on about a昀케lia琀椀on, the Na琀椀onal Commission held, in respect of the
recovery of the fees paid to the ins琀椀tute that the ins琀椀tute was liable to refund the fees, having
lured the students to enrol in it through decei琀昀ul tac琀椀cs.
Birla Ins琀椀tute of Technology & Science v. Abhishek Mengi
The Na琀椀onal Commission observed that forfeiture of fees by the educa琀椀onal ins琀椀tute without
impar琀椀ng educa琀椀on amounts to unfair trade prac琀椀ce.
Sonal Matapurkar v. S. Niglingappa Ins琀椀tute[12]
In this case, admissions were made by the dental ins琀椀tute over and above the sanc琀椀oned seats as
a result of which the students were not allowed to appear in the examina琀椀on by the university.
Since the students had paid huge dona琀椀ons and had also made an investment of 琀椀me and energy,
the Na琀椀onal Commission held that there was the de昀椀ciency in service and the complainants were
en琀椀tled to refund of the dona琀椀on and compensa琀椀on with interest and cost of the proceedings.
Secretary, Board of School Educa琀椀on Haryana, Bhiwani v. Mukesh Chand of Palwal[13]
In this case, the respondents declared the results a昀琀er a period of one year and eight months of
the scheduled 琀椀me. The Haryana State Commission held that there was erra琀椀c func琀椀oning on the
part of the opposite party and it had a callous a琀�tude towards its students, which is the
de昀椀ciency in service on its part.
Therefore, the court decisions cited above clearly accepts that student is a consumer of the service
provided by the university. Although, many judgments are also available where this consumer and
service provider rela琀椀onship is vehemently denied.
Cri琀椀cal Analysis of Three Decisions Delivered by Hon’ble Supreme Court to Restrict the Scope of
Consumer Protec琀椀on Act, 1986 with respect to Educa琀椀onal Ac琀椀vity
Bihar School Examina琀椀on Board v. Suresh Prasad Sinha
The issue was raised regarding the issuance of the same roll number to three di昀昀erent candidates
by the Bihar Board of Secondary Educa琀椀on and failure to declare the result of one of the
candidates. In this case, it is held by the Hon’ble Supreme Court that, the Consumer Protec琀椀on
Act, 1986 is not applicable with respect to statutory func琀椀ons statutory bodies. Here, the Board is
a statutory body and conduc琀椀ng the examina琀椀on is in the exercise of discharging its statutory
func琀椀on.
Therefore, in this case, the Bihar Board of Secondary Educa琀椀on is not providing any service. The
examina琀椀on fee paid by the candidates is also not considered as considera琀椀on. It is true that
conduc琀椀ng an examina琀椀on is not a marketable service.
However, the 昀椀ndings in case of func琀椀ons performed by statutory bodies outside the scope of
service under the Act, 1986 is not supported by the earlier Supreme Court decision in the Lucknow
Development Authority v. M.K. Gupta where the Supreme Court held that the ac琀椀vity of the
statutory body is not exempted from the de昀椀ni琀椀on of service as per the Act, 1986.
Again, the Hon’ble Supreme Court, in Bangalore Water Supply & Sewerage Board v. A. Rajappa
had considered among other things, that educa琀椀onal ins琀椀tutes are classi昀椀able as ‘industry’ as
de昀椀ned in Sec琀椀on 2(j) of the Industrial Disputes Act, 1947 while determining the import of the
aforemen琀椀oned term.
Therefore, when there is negligence in performing the statutory duty it should not be exempted
from the purview of the consumer law. When students pay the examina琀椀on fee then he/she is
en琀椀tled to get correct roll number, admit card, ques琀椀on paper, paper for wri琀椀ng the answer, the
chance of scru琀椀ny or review of the answer sheet being a candidate of examina琀椀on and other
facility provided by the examina琀椀on board to every student. If there is any de昀椀ciency in the
processing of the registra琀椀on number, roll number, admit card, allotment of examina琀椀on centre

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etc. it amounts to de昀椀ciency in service on the part of examina琀椀on board because the equal
opportunity is the right of every candidate appearing in the examina琀椀on.
Maharshi Dayanand University v. Surjeet Kaur
In this case, a student had enrolled in two courses simultaneously, one full-琀椀me course and one
correspondence course. Such enrolment being in contraven琀椀on of the rules, the university
directed her to unenroll from one of the courses, pursuant to which she unenrolled from the
correspondence course. However, she par琀椀cipated in the supplementary exam in respect of the
correspondence course, despite having cancelled her enrolment therein, and passed it. However,
her having taken the exam for the correspondence being in contraven琀椀on of the university rules,
the university refused to confer the degree on her.
University has the statutory power to enact laws, make ordinances in respect of the func琀椀oning of
the university. If any ac琀椀on taken by the student in contraven琀椀on to the exis琀椀ng rules and
regula琀椀on of the university enforced at the 琀椀me of the ac琀椀on then the student is liable to face the
consequences as per the exis琀椀ng rules. In those circumstances, the student cannot claim relief
available in the Act 1986 as a consumer of service. It should be borne in mind that the statutory
laws of the university and the rights provided in the consumer law should not contradict each
other. Statutory laws of the university and consumer protec琀椀on law both are enacted in order to
make the func琀椀onal ac琀椀vity of the university e昀昀ec琀椀ve and at the same 琀椀me to protect the right
and interest of the student safe so these two laws should reinforce each other to protect the
interest of both student and university.
P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors.
Supreme Court held, in a brief order that educa琀椀onal ins琀椀tutes do not, through the performance
of educa琀椀onal ac琀椀vi琀椀es, render any service, in respect of which a complaint of de昀椀ciency could be
maintained, and that consumer forums did not have the jurisdic琀椀on to adjudicate them. In view of
the above discussions and explana琀椀ons, it is found that the order in the ma琀琀er of P.T. Koshy does
not have support on legal and logical grounds.
Conclusion:
In view of the above discussions, it is proved that with regard to the applica琀椀on of the Consumer
Protec琀椀on Act, 1986 is jus琀椀昀椀ed in case of educa琀椀onal ac琀椀vity or service rendered by the
University/educa琀椀onal ins琀椀tutes. It is supported equally well on legal and logical grounds.
Students are direct consumer or bene昀椀ciary of the service or facility provided by
University/educa琀椀onal ins琀椀tutes. All kinds of ac琀椀vi琀椀es performed by University/educa琀椀onal
ins琀椀tutes may not be classi昀椀able as marketable service because of the nature of those par琀椀cular
services but it does not support the complete exclusion of the University/educa琀椀onal ins琀椀tutes
from the scope of Consumer Protec琀椀on Laws.
At the same 琀椀me, a student should not get the opportunity to get any undue privilege in
contraven琀椀on of the exis琀椀ng rules and regula琀椀ons speci昀椀cally men琀椀oned in the statute and Acts
of the university with illegi琀椀mate demands as a consumer of service. Therefore, in conclusion,
University/educa琀椀onal ins琀椀tutes come within the ambit of consumer protec琀椀on law as long as the
complaint is genuine on the ground that a legal right or interest of the student is prejudiced due to
ine昀케cient and de昀椀cient service or unethical trade prac琀椀ce by the University/educa琀椀onal
ins琀椀tutes.
18. RULE OF STRICT CONSTRUCTION OF PENAL STATUTES (TOLARAM Vs. THE STATE OF
BOMBAY) (SECTIONS 82 & 83 OF IPC)
A PROVISION OF PENAL STATUTE IS CAPABLE OF TWO POSSIBLE INTERPRETATIONS. ONE
INTERPRETATION LEADS TO CONVICTION OF ACCUSED AND THE OTHER INTERPRETATION LEADS
TO ACQUITTAL. WHICH INTERPRETATION HAS TO BE PREFERRED? GIVE REASONS (JULY-2019 &
MAY-2014).
ISSUE:

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 Which rule of interpreta琀椀on is applicable in this case? The strict rule of interpreta琀椀on
because it is a penal statute.
RULE:
The rule is stated by Mahajan C.J. in Tolaram v. State of Bombay, is that “If two possible and
reasonable construc琀椀ons can be put upon a penal provision, the Court must lean towards that
construc琀椀on which exempts the subject from penalty rather than the one which imposes a
penalty. It is not competent for Court to stretch the meaning of an expression used by the
legislature in order to carry out the inten琀椀on of the legislature.
In State of Jharkhand v. Ambay Cements, the Supreme Court held that it is se琀琀led rule of
interpreta琀椀on that where a statute is penal in character, it must be strictly construed and
followed.
APPLICATION:
The basic rule of strict construc琀椀on of a penal statute is that a person cannot be penalized
without a clear le琀琀er of the law. Presump琀椀ons or assump琀椀ons have no role in the interpreta琀椀on
of penal statutes. They are to be construed strictly in accordance with the provisions of law.
Nothing can be implied. In such cases, the Courts are not so much concerned with what might
possibly have been intended. Instead, they are concerned with what has actually been said.
In criminal cases, strict construc琀椀on is the general rule of construc琀椀on.
If the Penal Sec琀椀on covers only some cases of persons, their essence cannot be extended to
cover other persons. Sec琀椀on 82 of IPC deals with an act done by a child below 7 years of age and
exempts them from all criminal liability. Sec琀椀on 83 deals with acts of children who are above
seven but below 12 years of age. The two sec琀椀ons make no provision for an infant who is of exact
7 years. It is submi琀琀ed that such an infant should be dealt with under Sec琀椀on 82 of the code
because penal statutes are to be interpreted strictly. In order to warrant a convic琀椀on for an
o昀昀ence a case must fall within the ambit of the de昀椀ni琀椀on of the o昀昀ence charged and the rule is
that the bene昀椀t of all reasonable doubts must always go the accused.
CONCLUSION:
The given case pertains to the penal statute and the penal statutes have to be constructed
strictly.
According to Lord Esher, “If there is a reasonable interpreta琀椀on which will avoid the penalty in
any par琀椀cular case, we must adopt that construc琀椀on. If there are two reasonable construc琀椀ons,
we must give a more lenient one”.
The accused in the given case is eligible to get the lenient approach and should not be punished.
19. CONSEQUENCES OF REPEAL (EFFECT OF REPEAL)

A. A law was enacted by the legislature in the year 2009. Mr. X was challenged for
commi琀�ng an o昀昀ence punishable under the said Act in the year 2012. When the trial
against ‘X’ is pending. Act of 2009 is repealed in the year 2013. What is the e昀昀ect on the
trial against ‘X’? Discuss (Aug-2018).
B. The prohibi琀椀on Act was enacted by the state legislature under which the sale, possession
transporta琀椀on and consump琀椀on of liquor was an o昀昀ence. Mr. X has commi琀琀ed an o昀昀ence
punishable under the Act when the Act was in force. Later the said Act was repealed by
the same legislature. Mr. X charge-sheeted a昀琀er the repeal of the Act. Is it legal? Discuss
(May-2016).
C. ‘X’ was charged for commi琀�ng an o昀昀ence punishable under the Preven琀椀on of Terrorism
Act. When the trial was pending the said Act was repealed by the Parliament. What is its
e昀昀ect on the pending trial? (May-2014).

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ISSUE:
Is the Legislature having the right to repeal an Act? Yes.
Can the trial of the accused be con琀椀nued a昀琀er the repeal of the Act? No, prosecu琀椀on of the case
will come to an end.
RULE:
A previous law may be repealed either expressly or by implica琀椀on. In both the cases, the
consequences are the same. Following are the e昀昀ects of the repeal of enactment as per Sec琀椀on 6
of the General Clauses Act, 1897:
1. Later Act abrogates prior one.
2. Repealed Act ceases to exist and does not remain in force with e昀昀ect from the date of
repeal.
3. As per general law, except in rela琀椀on to the past and closed transac琀椀ons, a statute a昀琀er
repeal is completely obliterated as if it had never been enacted.
4. When an Act is repealed, all laws passed under it stand repealed unless there is a saving
provision.
5. No Proceedings can be commenced or con琀椀nued under an Act a昀琀er its repeal. However,
those cases remain una昀昀ected by such repeal in which the proceedings have been brought
to 昀椀nality before the repeal of the statute.
APPLICATION:
In State of U琀琀er Pradesh vs. Jagmander Das, 1954 the Apex Court held that when a statute is
repealed or comes to an automa琀椀c end by e昀툀ux of 琀椀me, no prosecu琀椀on for the acts done during
the con琀椀nuance of repealed/expired Act can be commenced a昀琀er the date of its repeal/expiry
because that would amount to enforcement at repealed or a dead Act.
In Gajraj Singh v. State Transport Appellate Tribunal, the Supreme Court has held that “when an
Act is repealed it must be considered, except as to transac琀椀ons past and closed, as if it had never
existed. The e昀昀ect thereof is to obliterate the Act completely from the record of the Parliament as
if it had never been passed, if never existed except for the purpose of those ac琀椀ons, which were
commenced, prosecuted and concluded while it was exis琀椀ng law.
CONCLUSION:
In the given case the prosecu琀椀on against Mr. ‘X’ cannot be con琀椀nued because the Act under
which the charges were framed was repealed before his case is 昀椀nished hence the prosecu琀椀on will
come to an end and Mr. ‘X’ is free of all earlier charges.
20. REPEAL AND RE-ENACTMENT, SECTION 24 OF THE GENERAL CLAUSES ACT, 1897.
A. A control Act was repealed and re-enacted without modi昀椀ca琀椀on. What is the e昀昀ect on
orders and rules made under the repealed Act? (July-2019).
B. A Central Act was repealed and re-enacted without modi昀椀ca琀椀on. What is its e昀昀ect on
orders and rules made under the repealed Act? (Aug-2013).
ISSUE:
Whether the Orders and Rules made under the repealed Act are s琀椀ll in force a昀琀er the re-
enactment of the Act? Yes.
RULE:
Sec琀椀on 24 in The General Clauses Act, 1897 Con琀椀nua琀椀on of orders, etc., issued under enactments
repealed and re-enacted. ௽౐Where any Central Act or Regula琀椀on, is, a昀琀er the commencement of
this Act, repealed and re-enacted with or without modi昀椀ca琀椀on, then, unless it is otherwise
expressly provided any appointment no琀椀昀椀ca琀椀on, order, scheme, rule, form or bye-law, made or
issued under the repealed Act or Regula琀椀on, shall, so far as it is not inconsistent with the

lOMoARcPSD|28401756
provisions re-enacted, con琀椀nue in force, and be deemed to have been made or issued under the
provisions so re-enacted, unless and un琀椀l it is superseded by any appointment no琀椀昀椀ca琀椀on, order,
scheme, rule, form or bye-law, made or issued under the provisions so re-enacted and when any
Central Act or Regula琀椀on, which, by a no琀椀昀椀ca琀椀on under sec琀椀on 5 or 5A of the Scheduled Districts
Act, 1874, (14 of 1874) or any like law, has been extended to any local area, has, by a subsequent
no琀椀昀椀ca琀椀on, been withdrawn from the re-extended to such area or any part thereof, the
provisions of such Act or Regula琀椀on shall be deemed to have been repealed and re-enacted in
such area or part within the meaning of this sec琀椀on.
APPLICATION:
CONCLUSION:
21. INCONSISTENCY BETWEEN SUBSTANTIVE LAW AND PROCEDURAL LAW, WHICH WILL
PREVAIL?
If there is any inconsistency between a provision of substan琀椀ve law and a provision of procedural
law, which shall prevail over the other? Discuss (Aug-2018, May-2017 and May-2016)

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Anantha LAW 4 semester material Combined

Labour Laws (Osmania University)

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Harinath J, Radhakrishna ANV and Aravinda Reddy 1

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LABOUR LAW-II STUDY MATERIAL

IMPORTANT LONG QUESTIONS

Harinath J, Radhakrishna ANV and Aravinda Reddy 2

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PAPER-I: LABOUR LAW-II SYLLABUS

Unit-IV: Employees Provident Fund and Miscellaneous Provisions Act 1952 –

Harinath J, Radhakrishna ANV and Aravinda Reddy 3

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Harinath J, Radhakrishna ANV and Aravinda Reddy 4

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Wages do not include:

Harinath J, Radhakrishna ANV and Aravinda Reddy 5

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Harinath J, Radhakrishna ANV and Aravinda Reddy 6

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4. SOCIAL SECURITY LEGISLATION.

Harinath J, Radhakrishna ANV and Aravinda Reddy 7

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1. Employees’ State Insurance Act, 1948 (ESI Act)

Harinath J, Radhakrishna ANV and Aravinda Reddy 8

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5. DISABLEMENT (PARTIAL AND TOTAL).

[See sections 2(1) and (4)]

LIST OF INJURIES DEEMED TO RESULT IN PERMANENT TOTAL

Serial Description of Injury Percentage of

Harinath J, Radhakrishna ANV and Aravinda Reddy 9

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No. loss of earning

1. Loss of both hands or amputation at 100

2. Loss of a hand and a foot. 100

3. Double amputation through leg or 100

4. Loss of sight to such an extent as to 100

5. Very severe facial disfigurement..... 100

6. Absolute deafness...... 100

6. EXPLAIN SALIENT FEATURES OF THE MATERNITY BENEFIT ACT, 1961.

Harinath J, Radhakrishna ANV and Aravinda Reddy 10

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Harinath J, Radhakrishna ANV and Aravinda Reddy 11

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Meaning and Definition of Wage

Broadly speaking, wages can be classi昀椀ed into the following categories:

Harinath J, Radhakrishna ANV and Aravinda Reddy 12

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A. The produc琀椀vity of Labour.

Harinath J, Radhakrishna ANV and Aravinda Reddy 13

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Cons琀椀tuents or Components of Minimum Wage -

Harinath J, Radhakrishna ANV and Aravinda Reddy 14

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2. Deduc琀椀ons for absence from duty Sec琀椀on 9 -

3. Deduc琀椀ons for damage to or loss of goods Sec琀椀on 10-

4. Deduc琀椀ons for services rendered Sec琀椀on 11-