INCIDENTS OF LAW

1 – Rights and duties

2 – Persons

3 – Possession

4 – Ownership

5 – Liabilities

6 – Property

RIGHTES AND DUTIES –

The administration of Justice in most part consists of the enforcement of Rights and the fulfillment of duties. Rights and duties are co-related to each other in such a way that one cannot be conceived of without the other.

PERSONS –

Persons are of two kinds (1) Natural and (2) Legal

Natural person means Human being.

Legal person means being and things, which are treated as persons by law.

POSSEION –

Possession is a root of title. Thus possession included a physical relation with the object as well as its recognition by law. These rights are some times called as,” Possession in fact” and “ Possession in law”

OWNERSHIP –

Definition of ownership under Hindu Law  - According to ancient Indian Jurists ownership is a peculiar kind of relation between a person and a thing. The bundle of rights of a person over a thing gives him the ownership of a thing and the control exercised by the person over the thing makes the thing a property of that person.

Definition of ownership by western Jurist – SALMOND defines ownership in a very comprehensive sense as the “ relation between a person and any right that is vested in him.”

Definition by Austrian Jurist – RENNER defines ownership in the following words, “ In mediaeval times ownership consisted of relationship between man and things. After Industrial revolution ownership has become a relation between a man and a complex aggregate of things termed as CAPITAL.

LIABILITY –

Law lays down the rights and duties of the individuals. In other words it prescribes what one is to do, and what is not to do and what one is entitled to get it done. A breach of these rules is called “wrong”. When a person has committed a wrong he is said to be liable. Thus liability is the condition of the person who has committed a wrong.

PROPERTY –

In the beginning,” Property included only the corporeal objects, but gradually the meaning went to expanding.” The Supreme Court Of India in CHIRANJI LAL VS Union Of India 1950 S C R 869 said,” The right of property guaranteed by Art. 19(1)(f) of the Constitution means that rights, which by themselves and taken independently are capable of being acquired , held or disposed of as property”                                                                                                                      

In another case COMMR HRE Vs LAKSHMINDRA A.I.R. 1954 S C 282 it was observed, “ There is no reason why the word property as used in Art. 19(1)(f) of the Constitution of India should not be given a liberal and wide connotation and should not be extended to those well recognized types of interests which have the insignia and characteristic of proprietary rights.

In STATE OF WEST BENGAL Vs SUBODH GOPAL 1954 S C R 587 it was said by Supreme Court of India that,” the property in Art, 31 of the Constitution must be understood both in corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its Judicial and legal sense of a bundle of rights which the owner can exercise under the Municipal law with respect to the user and enjoyment of those things”

In SHANTA BAI Vs STATE OF BOMBAY A. I.R.1958 S C 532 Supreme Court of India extended the meaning of property to, “ bare contractual rights unattended with any interest in property as property.

SOURCES OF LAW

At present in modern civilized society most of the laws are made by LEGISLATION.

In some countries, the decisions of the Superior Courts are also recognized as law.

CUSTOMS also plays a very important part in law making. The rights and liabilities are determined on the basis of the customs or precedents especially upon matters not covered by Legislation. Some times customs are expressly saved by legislation and some times are confirmed by decisions of courts.

The Judges in giving their judgment take help from many other sources also, such as JURISTIC

WRITINGS,  FOREIGN DECISIONS, MORAL CONSIDERATIONS and SOCIAL VALUES of the time and place. The law generally comes from these above sources and may be classified as under: -

BINDING SOURCES OF LAW – (1) Legislation (2) Judicial Precedents (3) Customary Law

PURSUASSIVE SOURCES OF LAW – (1)  Juristic writings  (2) Foreign Judgments (3) Moral Considerations (4) Social Values.

LEGISLATION is a primary source, which may be direct or indirect and may be defined as the promulgation of legal rules by an authority, which has the power to do so.

It is direct where the sovereign authority itself makes the law e.g. Laws made by the Parliament of India and Assemblies of STATES.

It is indirect where the sovereign authority delegates power to any authority to make the law. The former is known as SUPREME LEGISLATION and later SUBORDINATE KLEGISLATION.

In England and in India PARLIAMENT is supreme. There is no legal limitation upon its powers in England but in India there are certain constitutional restrictions upon its powers.

LIMITATION UPON CONSTITUTION AMENDING POWER

Part III , Art. 12 – Constitution of India – Definition – In this part unless the context otherwise

requires “ the State” include the Government and Parliament of India and government and the Legislature of each of the State and all local or other authorities within the territory of India or under the control of government of India.

Part III ,Art 13 – Laws inconsistent with or in derogation of the Fundamental Rights  -

(1) All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this part shall to the extent  of such inconsistency , be void.

(2) The STATE shall not make law, which takes or abridges the rights conferred by this part and any law made in contravention, be void.

(3) In this Article, unless the context otherwise requires (a) Law includes any ordinance, order , bye law. Rule, Regulation , Notification ,Custom or Usage having in the territory of India the force of law .

(b) Law in force includes law passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed , notwithstanding that any such law or any part thereof may not be the then in operation either at all or in particular area.

(4) Nothing in this Article shall apply to any amendment of this Constitution made under

 Article 368.

Kinds of Amendments 

The amendments provided under Indian Constitution can be classified as below :

(1) Can be effected by a majority of members present and voting as for amendments falling within Art. 4 , Art. 169, Art. 239A.

(2) Can be effected by special majority as laid down in Art. 368. i.e. Majority of not less than 2/3^rd members present and voting.

(3) Those amendments which requires , in addition to the special majority as laid down in Art. 368 and ratification by resolution passed by not less than one half of the STATES of the UNION.

The amendments which requires ratification by STATES are those which seek to make a change in the provisions referred to in the PROVISO of ART. 368. They relates to –

(1) Distribution of Legislative power.

(2) The representation of the STATES in Parliament.

(3) The power of the Supreme Court and High Courts.

(4) The Election of President.

(5) The procedure for Constitutional amendments.

SUBORDINATE LEGISLATION may be divided under following classes

1 – AUTONOMOUS LAW – When supreme authority confers powers upon a group of individuals to legislate on the matters entrusted to them as a group, such as Railway Company or UNIVERSITY.

(2) JUDICIAL RULES – Powers are given to the Judicature to make rules for the regulation of its procedure. In India SUPREME COURT an HIGH COURTS both have given powers to make rules.

(3) LOCAL LAWS – Local bodies are given powers to make Bye – law concerning their local matters . In India such local bodies , are Municipal Corporation, Municipal Board , Zila Parishad etc.

(4) COLONIAL LAW – The countries which are not independent and are under the control of some other Nation have no Supreme power to make law. The law made by them are subject to the SUPREME LEGISLATION of the STATE under whose control they are. Thus this is a kind of subordinate legislation.

(5) EXECUTIVE MADE LAW – A government consists of three branches or organs.

(1) Legislative  (2) Judiciary (3) Executive

The function of the Legislative organ is to make laws . That of the Judiciary to administer Justice according to laws and the Executive to execute the laws. Thus Executive organ in addition to its usual function does some law making also. The legislative body enacts the fundamentals only and the government departments supplement it with details. This kind of subordinate legislation is called DELEGATED LEGISLATION.

The aforesaid provisions indicate that individual politician, Judge, police or Executive officer cannot be made responsible for misadministration unless he acquires or entrusted with power and position to control and supervision. Mere shifting the liabilities and responsibilities to shiftless subordinates could not improve the working of system what so ever it may be i.e. Judiciary, Legislative or Executive. Hence it is our collective duty to ELECT or APPOINT a IMPARTIAL, COMPETENT and SUITABLE person having future vision to save interest of citizens and Nation as controlling authority and to make such provision in laws itself to remove him on mere ground of failure to discharge his duties according to the expectations and failure to punish adequately the delinquent subordinate may also be treated as failure of duty.

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