Top Legal Maxims and Latin Phrases for CLAT, Judiciary, and Law Exams

This is a comprehensive list of important legal maxims, legal terms, Latin phrases, and foreign words for law students, advocates, judges, and competitive exam aspirants to improve their legal knowledge, expertise, and understanding of the law.

What are Legal Maxims?

Legal maxims are established principles of law that are universally admitted, and people in the legal field are very well aware of these words. They are mostly Latin words or a combination of a few words.

Just like in Geometry, we have axioms; in law, we have legal maxims and phrases. Maxims are used in legal paperwork and are also asked in law exams like CLAT, Judiciary, and semester exams.

Important Legal Maxims with their easy meaning

1. Ab extra – From outside.

2. Ab Initio – From the beginning. Here’s more about it.

3. Ab inconvenienti – From hardship; an argument based on the inconvenience of a result.

4. Absoluta sententia expositore non indiget – A clear statement needs no interpreter.

5. Accessorium non ducit sed sequitur principale – An accessory does not lead but follows the principal.

6. Actio personalis moritur cum persona – A personal right of action dies with the person. In another sense, if he dies, the right to sue is gone.

7. Actionable per se – The very act is punishable, and no proof of damage is required.

8. Actori incumbit onus probandi – The burden of proof is on the plaintiff. Read under section 101 of the Indian Evidence Act.

9. Actus curiae neminem gravabit – An act of the court shall prejudice no one.

10. Actus me invito factus non est meus actus – An act done by me against my will is not my act. Read with section 94 of IPC.

11. Actus non facit reum nisi mens sit rea – An act does not make one guilty unless it is accompanied by a guilty mind.

12. Actus reus – Guilty act.

13. Actus Reus Non Facit Reum Nisi Mens Sit Rea – Conviction of a crime requires proof of a criminal act and intent. Or an act does not make a defendant guilty without a guilty mind. Or an act does not constitute guilt unless done with a guilty intention. (This maxim is the same as number 11 above: Actus non facit reum nisi mens sit rea.)

14. Ad hoc – For the particular end or case at hand.

15. Ad valorem – According to value.

16. Aequitas sequitur legem – Equity follows the law.

17. Alibi – At another place, elsewhere.

18. Aliunde – From another source; from elsewhere.

19. Aliunde rule – Evidence from outside; the rule that extrinsic evidence may be used to explain a document when there is ambiguity that cannot be resolved from the face of the document.

20. Alimony – A husband’s (or wife’s) provision for a spouse after separation or divorce; maintenance.

21. Amicus Curiae – Friend of the court. An Amicus Curiae is a person (usually a lawyer, expert, or organization) who is not a party to a case but is appointed by the court or allowed by the court to assist it by offering relevant information, expertise, or legal arguments. The purpose is to help the court reach a fair and informed decision.

22. Animus nocendi – Intention to harm.

23. Ante Litem Motam – Before suit brought; before controversy instituted, or spoken before a lawsuit is brought.

24. Argumentum ad hominem – Argument against the person rather than the issue.

25. Assentio mentium – The meeting of minds, i.e., mutual assents.

26. Audi alteram partem – No man shall be condemned unheard. Here’s more about it.

27. Benignae faciendae sunt interpretationes – Interpretation should be liberal (in favour of the person).

28. Benignior sententia in verbis generalibus seu dubiis est praeferenda – The more favourable interpretation is to be preferred in general or doubtful words.

29. Bis dat qui cito dat – He gives twice who gives promptly.

30. Bis idem exigi bona fides non patitur – Good faith does not allow the same thing to be demanded twice.

31. Bona fide – In good faith.

32. Bona vacantia – Goods without an owner.

33. Boni judicis est ampliare jurisdictionem – It is the part of a good judge to enlarge his jurisdiction, i.e., remedial authority.

34. Boni judicis est causas litium dirimere – It is the duty of a good judge to prevent causes of litigation.

35. Boni judicis est judicium sine dilatione mandare executioni – It is the duty of a good judge to see that judgement is executed without delay.

36. Bonum judex secundum aequum et bonum judicat – A good judge decides according to what is just and good.

37. Brutum fulmen – An empty threat; a declaration that has no legal effect whatsoever.

38. Causa proxima non remota spectatur – The immediate, not the remote, cause is looked at; the law considers the direct cause of an event, not a distant or indirect one.

39. Caveat – A caution registered with the public court to indicate to the officials that they are not to act in the matter mentioned in the caveat without first giving notice to the caveator.

40. Caveat actor – Let the doer beware.

41. Caveat emptor – Let the buyer beware.

42. Caveat venditor – Let the seller beware.

43. Certiorari – A writ by which orders passed by an inferior court is quashed.

44. Commodum ex injuria sua nemo habere debet – No one should derive advantage from his own wrong.

45. Communis hostis omnium – They are common enemies of all. The common enemy of everyone. Read with section 4(2) of IPC.

46. Consensus ad idem – Agreement to the same thing; meeting of minds on the same matter.

47. Contemporanea expositio – Contemporary exposition; a document is interpreted as it was understood at the time it was made.

48. Contra bonos mores – Against good morals.

49. Contra proferentem – Against the party who drafted the document; ambiguity in a contract is construed against the drafter.

50. Conventio privatorum non potest publico juri derogare – Private agreements cannot derogate from public law.

51. Coram non judice – Before a person who is not a judge; a proceeding before a court without proper jurisdiction.

52. Corpus – Body.

53. Corpus delicti – Body of the crime. It refers to the essential facts and circumstances proving a crime occurred. Also, it refers to the principle that ‘a crime must be proved to have occurred before a person can be convicted of committing that crime.’ (This definition is mostly used in Western Law.)

54. Crimen trahit personam – The crime carries (or attaches to) the person. Read with section 2 of IPC. In other words, it means wherever a person goes, and if he commits a crime there, then he will be covered by the provisions of the Indian Penal Code, that is, Interterritorial Jurisdiction.

55. Culpa lata – Gross negligence.

56. Culpa levis – Slight negligence.

57. Cursus curiae est lex curiae – The practice of the court is the law of the court.

58. Damnum sine injuria – Damages without injuries.

59. De facto – In fact.

60. De jure – By law.

61. De minimis – About minimal things.

62. De Minimis Non Curat Lex – The law does not govern trifles (unimportant things). Or law is not concerned with small or insignificant things/matters. Read with section 95 of IPC. Or A common law principle whereby judges will not sit in judgment of extremely minor transgressions (offence, wrongdoings) of the law.

63. De novo – To make something anew.

64. Delegata potestas non potest delegari – A delegated power cannot be further delegated.

65. Detinue – Tort of wrongfully holding goods that belong to someone else.

66. Dictum – Statement of law made by the judge in the course of the decision but not necessary to the decision itself.

67. Dies non – A day on which courts do not sit; a non-business day.

68. Doli capax – Capable of forming the necessary intent to commit a crime. Read with section 83 of IPC.

69. Doli incapax – Incapable of crime. Or incapable of forming the intent to commit a crime. Read with section 82 of IPC.

70. Dolus malus – Evil intent; fraudulent intent.

71. Donatio mortis causa – Gift because of death. Or a future gift given in expectation of the donor’s imminent death and only delivered upon the donor’s death.

72. Dura lex sed lex – The law is harsh, but it is the law; even a severe law must be obeyed.

73. Duress – Compulsion by threat; unlawful pressure to do something. (Note: This is a common law term, not a Latin maxim.)

74. Ei incumbit probatio qui dicit, non qui negat – The burden of proof lies upon the one who affirms, not the one who denies.

75. Ejusdem generis – Of the same kind; general words following specific words are limited to the same category.

76. Estoppel – Prevented from denying. Here’s more about it.

77. Ex gratia – As favour.

78. Ex nunc – From now; with effect from the present time only, not retroactively.

79. Ex officio – Because of an office held.

80. Ex parte – Proceedings in the absence of the other party.

81. Ex post facto – Out of the aftermath. Or after the fact. According to Wikipedia, it is a law that retroactively changes the legal consequences (or status) of actions that were committed or relationships that existed before the enactment of the law. In criminal law, it may criminalise actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

82. Ex tunc – From then; with retroactive effect from a past date.

83. Expressio unius est exclusio alterius – The express mention of one thing excludes all others.

84. Factum infectum fieri nequit – A thing done cannot be undone.

85. Factum probandum – It means the facts that need to be proved. This maxim is read under section 3 of the Indian Evidence Act.

86. Factum probans – Relevant fact. In other words, it means a fact or statement of facts offered in evidence as proof of another fact. It is read under section 3 of the Indian Evidence Act.

87. Falsus in uno falsus in omnibus – It means false in one thing, false in everything. Read under section 16 of the Indian Evidence Act. But this maxim is not followed in India, as held in the case of Suchita Singh and Anr vs State of Punjab and Ors (2015).

88. Fatum – Beyond human foresight.

89. Fiat justitia ruat caelum – Let justice be done though the heavens fall.

90. Fraus est celare fraudem – It is a fraud to conceal a fraud.

91. Fraus omnia corrumpit – Fraud corrupts everything; a transaction tainted by fraud is wholly void.

92. Functus officio – No longer having power or jurisdiction.

93. Fumus boni juris – The appearance or presumption of a good or valid right in law; a prima facie case.

94. Furiosi nulla voluntas est – A madman has no will. Mentally impaired or mentally incapable persons cannot validly sign a will, contract, or form the frame of mind necessary to commit a crime. Or a person with mental illness has no free will.

95. Furiosus absentis loco est – A madman is like one who is absent. Read with section 84 of IPC.

96. Furiosus furore suo punitur – A madman is best punished by his own madness.

97. Generalia specialibus non derogant – General provisions do not derogate from special provisions.

98. Habeas corpus – A writ to have the body of a person to be brought in before the judge.

99. Ignorantia facti excusat – Ignorance of fact is an excuse; a person who is genuinely unaware of a relevant fact may escape liability.

100. Id certum est quod certum reddi potest – That is certain which can be made certain.

101. Ignorantia facti excusat, ignorantia juris non excusat – Ignorance of fact is an excuse, but ignorance of the law is no excuse. Read with sections 76 and 79 of IPC.

102. Ignorantia juris non excusat – Ignorance of the law is not an excuse. Or ignorance of the law excuses no one. In other words, a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content. (This maxim is related to ‘Ignorantia facti excusat’ above.)

103. In absentia – In the absence of a person.

104. In camera – In private; court proceedings held in private, not in open court.

105. In dubio pro reo – In doubt, favour the accused; when in doubt, decide in favour of the defendant.

106. In extenso – At full length.

107. In flagrante delicto – Caught in the act of committing an offence.

108. In lieu of – Instead of.

109. In pari delicto – In equal fault; where both parties are equally at fault, the law will not help either.

110. In personam – A proceeding in which relief is sought against a specific person.

111. In promptu – In readiness.

112. In rem – Against the thing; proceedings directed against property rather than a person.

113. In status quo – In the present state.

114. Injuria sine damnum – Injury without damage.

115. Innuendo – Spoken words that are defamatory because they have a double meaning.

116. Inter alia – Among other things.

117. Inter vivos – Between living people (especially of a gift as opposed to a legacy).

118. Interest Reipublicae Ut Sit Finis Litium – It means it is in the interest of the state that there should be an end to litigation.

119. Ipso facto – By the mere fact.

120. Ipso jure – By the law itself; by operation of law automatically.

121. Jus – Law or right.

122. Jus ad bellum – The right to go to war; the set of criteria that must be satisfied before a state may lawfully resort to war.

123. Jus civile – Civil law; the law of a particular state as distinct from natural law or international law.

124. Jus cogens or ius cogens – Compelling law.

125. Jus in personam – Right against a specific person (or party). Read under section 43 of the Indian Evidence Act.

126. Jus in rem – Right against the world at large. Read under section 43 of the Indian Evidence Act. Related: What Is Right in Rem and Right in Personam?

127. Jus naturale – Natural law. Or in other words, a system of law based on fundamental ideas of right and wrong that is natural law.

128. Jus Necessitatis – It means a person’s right to do what is required, for which no threat of legal punishment is a dissuasion. Dissuasion means the action or process of trying to persuade someone not to take a particular course of action. Here’s more about it.

Question asked by a law student: I have a doubt about the maxim jus necessitatis. Does it come under section 81 or 87 of IPC?
Answer: This is called the doctrine of necessity. It means a person doing a thing under compulsion of a situation. It is not considered a wrongful act. It comes under the ambit of section 81 of IPC.

129. Jus non scriptum – Customary law.

130. Jus sanguinis – Right of blood or descent.

131. Jus scriptum – Written law.

132. Jus soli – Right of soil.

133. Justitia nemini neganda est – Justice is to be denied to nobody.

134. Leges posteriores priores contrarias abrogant – Later laws abrogate earlier contrary laws.

135. Lex Fori – The law of the country. The law of evidence is lex fori. It means the law of evidence is the law of the land where court proceedings are taken.

136. Lex loci – The law of the place; the law of the country where an act is done or a contract is made.

137. Lex loci contractus – The law of the place where a contract is made.

138. Lex non a rege est violanda – The law must not be violated even by the king.

139. Lex posterior derogat priori – A later law repeals an earlier one.

140. Lex specialis derogat legi generali – Special law overrides general law.

141. Lex talionis – The law of retaliation; the principle that punishment should mirror the offence committed.

142. Libertas inaestimabilis res est – Liberty is a thing of inestimable value.

143. Locus standi – Right of a party to an action to appear and be heard by the court.

144. Mala fide – In bad faith.

145. Malum in se or Mala in se (plural) – Wrong or evil in itself. Or Mala in se is ‘a term that signifies crime that is considered wrong in and of itself.’ For example, most human beings believe that murder, rape, and theft are wrong, regardless of whether a law governs such conduct or where the conduct occurs and is thus recognisably malum in se.

146. Malum prohibitum – In a way, the opposite of Malum in se. It means ‘crimes are criminal not because they are inherently bad, but because the act is prohibited by the law of the state.’ For example, jurisdiction in India requires drivers to drive on the left side of the road. This is not because driving on the right side of a road is considered immoral, but because the law says to drive on the left side and not on the right side.

147. Mandamus – ‘We command.’ A writ of command issued by a higher court to government and public authority to compel the performance of public duty. Related: 5 Types of Writs.

148. Mens rea – Guilty mind.

149. Misnomer – A wrong or inaccurate name or term.

150. Modus operandi – Way of working. Or mode of operation.

151. Modus Vivendi – Way of living.

152. Mutatis Mutandis – With the necessary changes having been made. Or with the respective differences having been considered.

153. Nemo bis punitur pro eodem delicto – Nobody can be twice punished for the same offence.

154. Nemo dat quod non habet – No one can give what they do not have; one cannot transfer a better title than one possesses.

155. Nemo debet bis vexari pro una et eadem causa – It means no one should be vexed (harassed or troubled) twice for the same cause.

156. Nemo debet esse judex in propria causa or Nemo judex in causa sua or Nemo judex in sua causa – Nobody can be the judge in his own case.

157. Nemo moriturus praesumitur mentire – A man will not meet his maker (God) with a lie in his mouth. Or, in other words, ‘no man at the point of death is presumed to lie.’ This maxim is related to dying declaration.

158. Nemo Potest esse tenens et dominus – Nobody can be both a landlord and a tenant of the same property.

159. Nihil fit sine causa – Nothing happens without a cause.

160. Nisi prius – Unless before; originally a writ directing a sheriff to summon a jury; now refers to a court of first instance.

161. Nolle prosequi – A formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit.

162. Non est factum – It is not my deed; a plea that a written document is fundamentally different from what was intended to be signed.

163. Non Sequitur – A statement (such as a response) that does not follow logically from or is not clearly related to anything previously said. Source: Merriam-Webster Dictionary.

164. Novation – Transaction in which a new contract is agreed by all parties to replace an existing contract.

165. Novus actus interveniens – A new intervening act; a new act by a third party that breaks the chain of causation between the defendant’s act and the claimant’s loss.

166. Nullum crimen sine lege, nulla poena sine lege – There must be no crime or punishment except in accordance with fixed, predetermined law. In other words, there must be no punishment without law.

167. Nunc pro tunc – Now for then. A ruling nunc pro tunc applies retroactively to correct an earlier ruling.

168. Obiter dictum – Things said by the way. It is generally used in law to refer to an opinion or non-necessary remark made by a judge. It does not act as a precedent. In other words, Obiter dictum means “that which is said in passing,” an incidental statement. Specifically, in law, it refers to a passage in a judicial opinion that is not necessary for the decision of the case before the court. Such statements lack the force of precedent but may nevertheless be significant. Source: Britannica. Related: What Is Ratio Decidendi and Obiter Dicta With Differences, Advantages, Disadvantages, and Case Laws?

169. Obsta principiis – Resist the beginnings; nip in the bud; the principle that one should oppose wrongs at their very start before they grow too large to correct.

170. Omnia praesumuntur rite esse acta – All things are presumed to have been done correctly and with due formality.

171. Omnis definitio in jure civili periculosa – Every definition in civil law is dangerous.

172. Omnis ratihabitio retrotrahitur et mandato priori aequiparatur – Every ratification relates back and is equivalent to a prior authority.

173. Onus probandi – Burden of proof. Read under section 102 of the Indian Evidence Act.

174. Pacta Sunt Servanda – Agreements must be kept. Or Agreements are legally binding. In international agreements, it means ’every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

175. Pacta tertiis nec nocent nec prosunt – Agreements neither bind nor benefit third parties; a contract cannot impose obligations or confer rights on those who are not parties to it.

176. Palimony – Money which (usually) a man pays to a woman with whom he has been living and from whom he is separated. Palimony has slightly different meanings in different jurisdictions.

177. Pari passu – With an equal step. Read more about it on Wikipedia.

178. Parens patriae – Father of the nation; the doctrine whereby the state has a duty to protect those who are unable to protect themselves, such as minors or persons with mental disabilities.

179. Particeps criminis – A participator in the actual crime/partner in crime.

180. Pendente lite – While the litigation is pending; during the course of the lawsuit.

181. Per curiam (decision or opinion) – By the court. In other words, the decision is made by the court (or at least, a majority of the court) acting collectively.

182. Per incuriam – Because of lack of care.

183. Per se – By itself.

184. Persona non grata – A person who is unacceptable or unwelcome. The opposite of persona non grata is persona grata. Also, in diplomacy, a persona non grata is a foreign person whose entering or remaining in a particular country is prohibited by that country’s government.

185. Potior est conditio possidentis – It means in equal fault (better is the condition of the possessor). Read under section 110 of the Indian Evidence Act.

186. Prima facie – At first sight. Or on the face of it.

187. Quantum meruit – What one has earned. Or the amount he deserves. In other words, A reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated (specified, written down) in a legally enforceable contract. Source: Oxford.

188. Qui facit per alium, facit per se – He who acts through another acts himself. In simple words, it is a fundamental legal maxim of the law of agency. It is a maxim often stated in discussing the liability of the employer for the act of employee in terms of vicarious (indirect, secondhand) liability.

189. Qui peccat ebrius luat sobrius – He who does wrong when drunk must be punished when sober. Read with section 86 of IPC.

190. Qui sentit commodum, sentire debet et onus – It means he who receives advantage must also bear the burden.

191. Quid pro quo – Something for something.

192. Quo warranto – By what authority. A writ calling upon one to show under what authority he holds or claims a public office.

193. Quod necessitas non habet legem or Necessitas non habet legem – Necessity knows no law. Read with section 81 of IPC.

194. Ratio decidendi – Principle or reason underlying a court judgement. Or the rule of law on which a judicial decision is based.

195. Res communes omnium – Things common to all; things that cannot be owned by any one person, such as air or the sea.

196. Res gestae – Things done; facts surrounding and accompanying a transaction that are admissible as evidence.

197. Res ipsa loquitur – The thing speaks for itself. Read under section 106 of the Indian Evidence Act. Related: What Is Res Ipsa Loquitor

198. Res Judicata – A matter already judged. In other words, it means a matter finally decided by a competent court on the basis of merits. Read under section 40 of the Indian Evidence Act.
Related:
– Res Judicate Is Based On 3 Maxims
– Res Judicata vs Res Sub Judice

199. Res Judicata Pro Veritate Accipitur – It means that a judicial decision must be accepted as correct.

200. Res nullius – A thing belonging to nobody; property not yet belonging to any person and which may be acquired by the first taker.

201. Res sub judice – A matter under judicial consideration; a matter which is still pending before a court.

202. Respondeat superior – Let the master answer. For example, there are circumstances when an employer is liable for acts of employees performed within the course of their employment. This rule is also called the master-servant rule.

Or let the principal answer. In other words, it means to hold the employer or the principal legally responsible for the wrongful acts of an employee or agent committed within the scope of the employment or agency. It applies mainly in law of torts and agency.You can also read it with sections 154 and 155 of IPC.

203. Restitutio in integrum – Restoration to the original position; the aim of damages in tort to put the claimant back in the position they would have been in had the wrong not occurred.

204. Rex non potest peccare – The king is not able to sin. Or, the king can do no wrong.

205. Salus populi est suprema lex or Suprema lex salus populi – The welfare of the people is the supreme law. In other words, it means public welfare is the highest law. Read under section 123 of Evidence Act.

206. Sine die – With no day (indefinitely).

207. Sine qua non – “Without which nothing.” An essential condition. A thing that is absolutely necessary. Basically, a component of an argument that, if debunked, causes the entire argument to crumble.

208. Stare decisis – To stand by decisions; the doctrine that courts should follow precedent in deciding cases that have the same facts or issues.

209. Status quo – State of things as they are now.

210. Sua sponte – Of one’s own accord; something done by a court on its own initiative without a request from either party.

211. Sub judice – Under a judge or court; under judicial consideration and therefore prohibited from public discussion.

212. Sub silentio – In silence; a precedent established without the matter being argued or considered.

213. Subrogation – The substitution of one person in the place of another with reference to a lawful claim or right.

214. Suggestio falsi – A false suggestion or representation; a misrepresentation by making a false statement of fact.

215. Sui generis – Of its own kind; unique or in a class of its own.

216. Suo Motu – On its own motion.

217. Suppressio veri suggestio falsi – Suppression of truth is equivalent to suggestion of falsehood.

218. Uberrima fides (sometimes uberrimae fidei) – Utmost good faith.

219. Ubi jus ibi remedium – Where there is a right, there is a remedy.

220. Ultra vires – Beyond the powers; an act done beyond the legal power or authority of the person or body performing it.

221. Unjust enrichment – The principle that a person should not benefit at the expense of another without just cause or legal basis. (Note: This is a legal doctrine, not a classical Latin maxim.)

222. Ut res magis valeat quam pereat – It is better for a thing to have effect than to be made void; a contract should be interpreted so as to give it effect rather than render it void.

223. Verba fortius accipiuntur contra proferentem – Words are to be taken most strongly against the party who uses them.

224. Verba legis – The words of the law; statutes must be interpreted using the plain meaning of their words.

225. Veritas nihil veretur nisi abscondi – Truth fears nothing but concealment.

226. Veto – Ban or order not to allow something to become law, even if it has been passed by a parliament.

227. Vice versa – Reverse position.

228. Vinculum juris – The bond of law; the obligation of a legal bond or tie.

229. Vis compulsiva – Compulsive force; force applied to a person to compel them to do something against their will.

230. Vis major – Act of God.

231. Void ab initio – Void from the beginning; an act or agreement that is null and has no legal effect from the outset.

232. Voidable – That which may be set aside; a contract that is valid but may be cancelled at the option of one party due to a defect such as misrepresentation or undue influence. (Note: This is a legal term, not a Latin maxim.)

233. Volenti non fit injuria – Damage suffered by consent gives no cause of action. Or harm caused with consent cannot be considered an injury. Read with section 87 of IPC. In other words, if someone willingly places himself in a position where he knows that harm might result, then he is not able (allowed) to bring a claim against the other party in tort or delict (a violation of the law). Related: What Is Volenti Non-Fit Injuria Under the Law of Torts?

234. Vox populi – Voice of the people. Or the opinion of the majority of the people.

235. Waiver – Voluntarily giving up or removing the conditions.

Read Next:
1. Important Words of Hindu Law and Muslim Law
2. Must-know Case Nomenclatures Used in Indian Courts

Top 235 Legal Maxims for Law Exams
WritingLaw

In this article, you will read about judicial interference in electoral matters, its power to review, subject matter primarily under judicial review and some of the landmark judgements.

Jurisdiction in Electoral Matters

Judicial review is the authority granted to the Supreme Court and the High Court to examine the constitutionality of legislative and executive actions. The primary goal of judicial review is to protect the public and Fundamental Rights.

The constitutionally mandated Election Commission of India (ECI) holds India’s state and union elections. The Lok Sabha, Rajya Sabha, State Legislative Assemblies, and the President and Vice President of India can all be elected through the ECI.

The High Court and Supreme Court can hear petitions challenging the Election Commissioners’ decisions, but once the election process has started, they cannot interfere with how the elections are conducted.

Election petitions are the only means through which the judiciary can review an election’s outcome. The Election Commission itself lacks the authority to examine the election results. Additionally, this election petition can only be submitted to the High Court concerning elections for the State Legislatures.

Election petitions are the only means through which the judiciary can review an election’s outcome. For state legislature elections, these petitions are submitted to the High Court. However, in the case of Parliament elections for the President or Vice President, the petitions can only be submitted before the Supreme Court, and the High Court lacks jurisdiction in such matters. It’s important to note that election-related concerns are outside the scope of jurisdiction for civil courts.

Power of Judicial Review in India

The Indian Constitution is thought to be safeguarded by the judiciary. Judicial review is the safeguard if the legislature passes a bill that conflicts with the Constitution. Likewise, if executive actions are such that they go against a fundamental principle of the Constitution, judicial review is the safeguard.

As a result, any passed law that conflicts with a basic right listed in Part III of the Constitution is void, as stated in Article 13. Therefore, the High Court is given the authority to conduct judicial reviews under Articles 226 and 227, and the Honorable Supreme Court is given the authority under Article 32.

In accordance with a number of important case laws, including Kesavananda Bharti vs State of Kerala (1973) and Indira Nehru Gandhi vs Raj Narain, judicial review was regarded as one of the fundamental elements of the Constitution.

Subject Matter Primarily Under Judicial Review

Judicial review is not restricted to specific subject matters. Nonetheless, the courts are empowered to exercise judicial review in the following situations:

1. Any measure passed by the legislature that is later proven to be arbitrary or to violate the fundamental principles of the Constitution may be ruled unconstitutional by the courts. Whether or not anything is considered “arbitrary” or in violation of the Constitution depends on how the judges perceive the situation.

2. Judicial review has the power to declare void administrative actions that are deemed to be infringing in nature.

3. In the case of Hamdard Dawakhana vs Union of India (1960), the Parent Act (the Drugs and Cosmetics Act, 1940) was taken into the ambit of judicial review, and it was declared void on the grounds of excessive delegation. The case involved a challenge to the Drugs and Cosmetics Act, which had granted wide powers to the government to make rules regulating the manufacture and sale of drugs and cosmetics. The court held that the delegation of powers was excessive and violated the principle of separation of powers, which is an essential feature of the Indian Constitution.

4. In India’s current Constitution, the main topic of the judicial review relates to:

• (i) The enactment of legislative acts that are inconsistent with the constitutional provisions governing the division of powers.
• (ii) When the legislature transfers crucial legislative authority to the executive branch or another body.
• (iii) A Fundamental Right is violated.
• (iv) Violating a number of additional constitutional prohibitions that are written into the Constitution.
• (v) Breaking implicit constraints and limitations.

Involvement of the Judiciary in Electoral Cases

According to Article 329 of the Constitution, no other court may hear a case or procedure challenging a parliamentary or state legislative election.

To challenge the validity of an election, a petition must be filed following the procedure specified by the law. The Representation of the People Act, 1951, which was enacted by Parliament under Article 327 of the Constitution, governs various electoral matters. Part VI of the Representation of the People Act specifically addresses the procedures and legal provisions related to elections.

According to the Representation of the People (Amendment) Act 1966, election petitions can be heard by the High Court. The High Court now hears election petitions directly, and according to Articles 132, 133, and 136, one may appeal the High Court’s decision to the Supreme Court.

The Election Commission is not permitted to independently review any results once the voting is over and they have been made public. In relation to elections for the Parliament and State Legislatures, this can only be examined through the procedure of an election petition, which can be submitted before the High Court.

The jurisdiction to hear election petition cases lies exclusively with the respective High Courts of the states. Appeals against the decisions of the High Courts can be made to the Supreme Court of India by parties aggrieved by the High Court’s ruling. It is important to note that apart from the Supreme Court, challenges to the election of the President and Vice President cannot be filed in any other court or authority.

Cases Where Judicial Interference Has Helped Positively

In the following case, the courts looked into the situation and helped the EC understand the responsibility that was placed on them.

The Supreme Court summoned representatives of the EC in one of the incidences and conveyed their concern over the “hate speech” made by BSP leader Mayawati and UP Chief Minister Yogi Adityanath during their campaign.

The EC then took additional action by imposing a 72-hour and 48-hour ban on the two candidates’ ability to campaign, respectively.

The EC might act arbitrarily in some situations. Thus, the courts might utilize their authority to resist it. The High Court ruled that the EC’s decision to remove 20 AAP members from office for having a profit-making position was unlawful because they were not given a chance to be heard. It was decided to return the case to the EC for further hearing.

Cases Where Judicial Interference Might Cause Problems

Instances may arise where the decisions of the Election Commission (EC) fail to meet the satisfaction of certain parties. However, it should be noted that the Supreme Court has often declined to intervene and investigate election-related matters. In a specific case, the Supreme Court rejected an application made by a third party seeking scrutiny of the EC’s ruling. The Election Commission, being an independent constitutional body, holds the authority to make decisions in such matters.

In situations where parties are dissatisfied with the Election Commission’s judgments, they may not directly apply for judicial review of those judgments. The bench, presided over by Chief Justice Ranjan Gogoi, clarified that the EC’s decision, whether right or wrong, has been finalized. The aggrieved parties are advised to pursue separate writ petitions if they wish to contest the EC’s decision.

Landmark Judgments

Here are the summaries of two landmark judgements.

Indira Nehru Gandhi vs Raj Narain, 1975 AIR 2299

In this instance, Indira Gandhi’s opponent in the elections was a politician named Raj Narain. Ms Indira Gandhi easily won the elections. Raj Narain, however, brought a malpractice claim before the court.

As a result of the court’s ruling in Raj Narain’s favour, Ms Gandhi was ordered to step down as Prime Minister of the country. After being upset by this ruling, she filed an appeal with the Supreme Court. However, due to domestic unrest, the President proclaimed a national emergency while the appeal was pending before the Supreme Court.

Furthermore, during that time, the 39th Amendment was enacted, which specifically excludes the elections of the President, Prime Minister, Vice President, and Speaker of the Lok Sabha from judicial review by the courts. Consequently, the Supreme Court is barred from exercising its jurisdiction to hear the mentioned case.

The constitutionality of the 39th Amendment was thus contested in this instance. The change was declared unlawful and arbitrary by the court. The court ruled that it was essential to keep in mind the fundamental elements of the Indian Constitution. One of the basic structures is judicial review. Such an amendment jeopardized the nation’s foundational belief in free and fair elections.

Election Commission of India vs Ashok Kumar & Ors. (1978) 1 SCC 405

In Election Commission of India vs Ashok Kumar & Ors., the Election Commission of India published a notification stating that areas, where voting was to be done by ballot paper, were to have their votes mixed together rather than station by station, in accordance with the authority granted by Rule 59A of the Conduct of Election Rules, 1961.

In opposition to this specific notification, writ petitions were sent to the High Court, insisting that the counting be done station-by-station. The High Court granted the petitioner relief. This order infuriated the ECI, who submitted an SLP (Special Leave Petition) to the Supreme Court.

The Supreme Court reversed the High Court’s decision, arguing that Article 329(b) prevented the elections from being called into doubt until the process was still ongoing.

Conclusion

An electoral process cannot be subjected to judicial scrutiny. It does not, however, imply that the ECI has unrestricted authority. The courts may take the ECI’s decision under review.

Furthermore, judicial involvement was not permitted during the electoral process. This is done to prevent any more postponements of the election process since, in the event of judicial intervention, it would take a while for the court to review the matter and render a decision.

However, since our country’s courts serve as its peacekeepers, they occasionally have issued orders to the ECI directing it to enhance or monitor the electoral processes and ensure that the Model Code of Conduct is appropriately implemented.

Judicial Review in Electoral Matters in India
Suhani Dhariwal

The Indian judicial system is an organised mechanism for dealing with issues in society. It gives the young generation a wide range of opportunities to get involved in this system and contribute to the best possible service to the country.

Law graduates are eligible to hold positions in all three branches of government: legislature, executive, and judiciary. Other graduates may hold positions in the legislature and executive branch but not in the judiciary. Due to this reason, it is rightly said that a law degree can open the door to a wide range of careers that other degrees may not.

Many statutes, including the Code of Civil Procedure, the Indian Penal Code, and the Code of Criminal Procedure, define the term “judge”.

Judges ensure a fair trial and pronounce the verdict after the case. Judges safeguard the court’s dignity in society without being biased or putting themselves in a risky position.

Let us discuss whether becoming a judge will be a fruitful career for you or not.

Positive and Negative Aspects of a Career as a Judge

Judges are very reputed in the Indian judiciary system. But everything present on this planet has both negative and positive aspects.

The pros and cons of being a judge are listed below that can help you identify whether this career option suits you or not:

Advantages of Career as a Judge

• It is a job with a high level of responsibility and is a very reputed position.
• You can serve the nation by becoming a judge.
• A career as a judge will surely give you financial and job security.
• You will have enough time to balance your personal and professional life.
• It is a powerful job with lots of perks.
• It gives the power to erode the evils existing in society. A power that can protect people.

Disadvantages of Career as a Judge

• It requires a lot of hard work to become a judge.
• It is a sitting job, and you’ll be doing the same work every day.
• Massive competition for growth.
• Mental pressure or stress will be quite often due to different reasons.
• There can be threats if the decision by a judge is not favourable for a party or section of people. Any seat in a high position carries risk. But things can be handled with courage and determination to do good for society.
  

Eligibility for Becoming a Judge

Indian judiciary follows the three-tier structure, i.e., the union judiciary (Supreme Court), state judiciary (High Courts and courts subordinate to it), and subordinate judiciary (District Courts).

A graduate can become a judge by taking the Civil Judge exam conducted by the Public Service Commission. This exam is conducted state-wise. Moreover, the states decide the eligibility and time for conducting the judge exams according to the vacancies available.

Union Judiciary

The Supreme Court of India comprises one Chief Justice of India and 33 other judges. The appointment of judges depends upon the vacancies available.

The eligibility criteria for becoming a Supreme Court judge in India are:

• A person appointed as a judge of the Supreme Court must be a citizen of India and possess a degree of Law from a recognised university.
• He must have served as a judge of a High Court for at least five years or two or more High Courts in a row, or
• He must have worked as an advocate in a High Court or two or more High Courts in a row for at least ten years.
• He shall be a respected jurist, according to the Indian president.
• The individual appointed as a Supreme Court Judge will remain in office until he reaches the age of 65.

State Judiciary

Every High Court consists of one Chief Justice and other judges as may be required from time to time.

The eligibility criteria for becoming a High Court judge in India are:

• The person must be an Indian citizen.
• He or she must have previously worked in a judicial capacity in India for at least ten years, or
• He or she must have experience working as an advocate in two or more such courts consecutively for a period of at least 10 years.
• The person appointed as a High Court judge can serve as a judge until he attains the age of 62 years.

Subordinate Judiciary

There are mainly two types of judges in district courts – District Judge/Sessions Judge and Civil Judge (i.e., the magistrate). The appointment procedure or eligibility criteria for a District Judge and a Civil Judge are different.

The eligibility criteria for becoming an Additional District Judge in India are:

• The person must be an Indian citizen.
• For at least seven years, the person must be an advocate.
• The individual must be at least 35 years old (age differs from state to state).
• The person must pass the test administered by the judicial service.

The eligibility criteria for becoming a Civil Judge or a magistrate are:

• The person must be an Indian citizen.
• He or she must be in the age group between 21 and 35 years (age differs from state to state).
• The person must pass the state judicial service test.

Judicial Service Examination

The judicial service examination is an entry-level exam for Civil Judges organized by every state public service commission and High Court for law graduates. Students can directly take the judicial service exam after graduation to become a member of the subordinate judiciary.

Eligibility Criteria for Judicial Service Examination

There are two categories of judicial service exams, and the eligibility criteria for both are different.

• Lower Judiciary Services: To appear for the judicial services examination, you must have a bachelor’s degree in law. Under the Advocates Act of 1961, the person must have enrolled or qualified to be enrolled as an advocate. It does not require any prior experience, and even students studying in the final year of their law schools can apply for the same as some states allow appearing in exams in the final semester of law. Moreover, it is the state that determines the age limit, and it is usually between the ages of 21 to 35.
• Higher Judiciary Service: Candidates for the higher judiciary services must be law graduates with a minimum of seven years of litigation experience.

Stages of Judicial Service Exam

The judicial service exam has three phases, i.e., preliminary, mains, and interview.

The preliminary examination is an MCQ-based paper, and the person qualifying for this exam will be entitled to appear for the mains examination.

Mains examination is a subjective paper. There are three to four papers in this exam, and the candidates selected in this exam shall be called for an interview round. The number of candidates selected in this round depends upon the vacancies available at that time. Candidates called for interviews are three times the number of vacancies available.

Then, the interview is the last stage, where the candidates are judged and selected based on their qualities, including general interest, personality, and intelligence.

Must See: How to Write the Best Answer in Judiciary Mains Exam

All India Judicial Services Examination

The AIJS exam is a step in which the exam for the recruitment process of additional judges and district judges will be held at the central level. As the UPSC exams are conducted for the whole country, AIJS will be conducted for the judges on the central level in the same way.

In the government’s view, a properly framed All India Judicial Service will significantly strengthen the overall justice delivery system. This will offer an opportunity to select suitable, qualified, fresh legal talent through a proper all-India merit selection system. It shall also address the key issue of social inclusion by enabling suitable representation to marginalised and deprived sections of society. The exam will promote the right talent from lower levels to higher levels.

Duties of a Judge

These are the essential duties of a judge:

• A judge must be fair and impartial, doing everything for the sake of justice and nothing for the benefit of friends or family.
• When addressing a counsel, litigant, or witness, a judge should avoid using a controversial tone or attitude.
• A judge must hear both the parties (prosecution and defence).
• A judge must determine the guilt or innocence of criminal defendants in criminal court and impose punishments on those found guilty.

Benefits and Allowances of a Judge

Apart from the monthly salary, a judge is entitled to a lot of monthly allowances given below:

• House rent allowance
• Travel allowance
• Electricity bill
• Phone bill
• Vehicle maintenance
• Pension after retirement

Executive Magistrate vs Judicial Magistrate

The executive magistrate is the district magistrate of a particular area. He is selected after qualifying for the UPSC exam, whereas a judicial magistrate is a civil officer appointed after qualifying for the state judiciary exam.

The primary difference between a judicial magistrate and an executive magistrate is that a judicial magistrate can handle all the cases and grant punishment for up to 3 years. In contrast, an executive magistrate can take matters related to public peace, maintaining law and order, etc.

Conclusion

I want to state that being a judge is an excellent career option for law graduates. It gives power, reputation, a chance to serve the nation, and various monetary and non-monetary benefits. Still, on the other hand, this profession requires a lot of hard work and dedication, from preparing for the judicial examination to becoming a judge.

Read Next:
1. Best Answer Writing Tips for Law Exams
2. How to Study and Prepare for Judiciary Exam
3. 10 Legal Jobs and Career Options After Law

Career as a Judge – Eligibility, Benefits, Allowances, and More
Anushka Saxena

Supreme Court Bar Association vs Union Of India, AIR 1998 SC 1895
Citation – AIR 1998 SC 1895
Date of judgement – 17 April 1998

Lawyers’ lives are built on a foundation of professional ethics. Everyone has the right to choose a lawyer to represent them in court. It means that lawyers have a constitutional obligation to take on the case of anyone who comes to them for legal help.

The purpose of the contempt authority, according to the court, is to protect the majesty of law and the administration of justice, not to defend the dignity and honour of the individual judge who is personally insulted or scandalised. The cornerstone of the system is the people’s faith in the judiciary’s capacity to administer courageous and impartial justice.

The Supreme Court Bar Association vs Union of India (1998) stands as a landmark case in the legal history of India. This pivotal judgment, delivered by the Supreme Court of India, has far-reaching implications and addresses fundamental issues that resonate within the nation’s legal framework.

In this article, we go into the details of this significant case, examining the context, the legal arguments, and, most importantly, the profound judgement.

Facts of the Case

The contemner, an attorney, was found guilty of criminal contempt of court for interfering with and “obstructing the process of justice by attempting to frighten, overawe, and overbear the court by using rude, contemptuous, and threatening words.”

He was condemned to simple jail for six years and barred from practising as an advocate for three years. The sentence of confinement was suspended for four years and would be activated if he was convicted of any other act of contempt of court during that time.

Dissatisfied with the decision to bar the defendant from practising as an advocate for three years, the Supreme Court Bar Association, through its Honorary Secretary, filed a writ petition under Article 32 of the Indian Constitution, seeking:

• An appropriate writ, direction, or declaration declaring that the disciplinary committees of the Bar Councils established under the Advocates Act, 1961, have sole authority to investigate and suspend or bar an advocate from practising law for professional or other misconduct arising out of a punishment imposed for contempt of court or otherwise; and
• A statement that the Supreme Court of India or any High Court, acting within its inherent jurisdiction, has no original jurisdiction, power, or authority in this matter.

Issue

Can the Supreme Court, in exercising its powers under Article 129, read with Article 142 of the Constitution of India, punish an advocate for committing proven contempt of court by suspending his licence for a defined term and barring him from practising law?

Judgement

While broad*, the Supreme Court’s jurisdiction to penalise for contempt of court is nonetheless restricted, and it cannot be enlarged to include the ability to evaluate whether an advocate is also guilty of “professional misconduct” in a summary way, bypassing the Advocates Act’s procedure. While the power to do complete justice under Article 142 is a corrective power that favours equity over the law, it cannot be used to deprive a professional lawyer of due process under the Advocates Act, 1961, by suspending his licence to practise in a summary manner while dealing with a contempt of court case.

Article 142’s curative powers cannot be understood as allowing the court to disregard a litigant’s substantive rights when dealing with a case before it. This authority may not be utilised to “supplant” substantive law that applies to the matter or cause before the court. Even with its breadth, Article 142 cannot be used to construct a new tower where none previously existed by ignoring explicit statutory provisions dealing with a subject and achieving something indirectly that cannot be attained directly.

Punishing a contemner advocate by suspending his licence to practise while dealing with a contempt of court case, a power otherwise statutorily available only to the Bar Council of India, on the basis that the contemner is also an advocate, is thus not permissible in the exercise of the jurisdiction under Article 142. The salutary goal of Article 142, namely, to do complete justice between the parties, must be operationally informed by its interpretation. It can’t be any other way. The contemner and the court are not litigating parties in a case of contempt of court.

A complaint of professional misconduct is investigated by the Bar Council’s disciplinary committee, much like a court of law investigates a criminal case, and an advocate may be punished based on the evidence presented to the Disciplinary Committee of the Bar Council after being allowed to be heard. The offending advocate may be removed from the Advocates’ Rolls or subjected to any other sanction permitted by the Act.

As a result, the Supreme Court cannot penalise an advocate for “professional misconduct” while exercising appellate authority by changing itself into a statutory body with “original jurisdiction.” Indeed, if the concerned Bar Council does not take any action against an advocate after being informed of their willful and blameworthy conduct by the High Court or the Supreme Court, the Supreme Court, in exercising its appellate powers under section 38 of the Advocates Act, 1961, read with Article 142 of the Constitution, may well have the jurisdiction to proceed suo motu and send for the records from the Bar Council and pass appropriate orders. If a case is pending before the relevant Bar Council and the Bar Council “does not act,” the Supreme Court may sometimes consider exercising appellate jurisdiction suo motu.

Analysis

The Supreme Court’s job, according to the court, is to ensure that statutory bodies and other state organs fulfil their tasks in conformity with the law; nevertheless, it is not allowed for the Supreme Court to assume the role of the bodies and other state organs and perform their activities.

In the case of Vinay Mishra, there was an inherent fallacy: it was argued that once the subject was before the court, it may pass any order or instruction. However, this is a case of contempt of court rather than professional misconduct. The court has authority over contempt, while the Bar has jurisdiction over professional misconduct.

After the case of Maneka Gandhi vs Union of India 1978 AIR 597, the Bar can only suspend an advocate after providing him with the opportunity to represent himself, as required by due process of law. In Vinay’s case, the court endowed itself with jurisdiction it had never had before.

The Supreme Court can punish anybody who commits contempt of court under Article 129, read with Article 142 of the Indian Constitution. The High Courts can punish contemners under Article 215 of the Constitution, and the Contempt of Courts Act of 1971 controls the sanctions imposed by the High Court. This Act has no bearing on the Supreme Court’s jurisdiction. In this case, the court misinterpreted Article 129 and Article 142, depriving the Bar of any ability to sanction individuals who engage in professional misconduct.

The court used a fairly objective approach and, with the support of the law and proper interpretation, concluded that the ability to punish for any professional misconduct lies with the Bar. However, it only has jurisdiction over itself and subordinate courts to punish for contempt. No legislation can take away the Supreme Court’s or the High Court’s contempt jurisdiction.

The superior court’s contempt jurisdiction is not founded on legislation but rather on the fact that it is a court of record, which gives it that power. The Supreme Court and High Courts have the power of contempt since the Constitution considers them courts of record.

Conclusion

Civil contempt is important because deliberately disobedient litigants who disobey the court’s orders cannot be excused; otherwise, the administration of justice and public confidence in the judiciary would suffer. Citizens’ trust, faith, and confidence in the judiciary is a precondition for the Rule of Law to exist.

Experts, conversely, feel that criminal contempt should be simplified if not outright abolished. This is because it can potentially be used to restrict freedom of speech and expression under Article 19 of the Indian Constitution.

* The term “broad” refers to the extent or scope of the Supreme Court’s jurisdiction. It suggests that while the Supreme Court has a significant or wide-ranging jurisdiction, there are certain limits or restrictions imposed on it when it comes to penalizing individuals for contempt of court.

Read Next:

• 41 Duties of an Indian Advocate Towards the Court, Client, Opponents, and Fellow Advocates
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SC Bar Association vs UOI, 1998 – Case Explained
Suhani Dhariwal

Earlier, in India, there were several indirect taxes such as excise duty, customs duty, service tax, etc. However, this system was changed after the introduction of a unified indirect tax system that combines a large number of central and state indirect taxes under a single GST.

GST, or Goods and Services Tax, is a tax imposed at the national level on the production, consumption, and sale of goods and services. It is a single domestic indirect tax that is applicable all over India.

For more, we have a separate law note that tells you about GST, GST Council, and its after-impact. In this article, we will help you understand the types of GST, the difference between GST and the previous taxation law, how to apply for it, and its applicability to advocates and legal services.

How Did the Concept of GST Come to India?

The idea of GST was first proposed in India in the year 2000 by the then Prime Minister, Atal Bihari Vajpayee. A committee was then established to develop the GST structure and draft the GST law in the country. In 2004, the task force, which was formed in 2003 for fiscal responsibility and budget management, recommended the implementation of the GST.

Later, in 2006, the then Finance Minister of India, Jaswant Singh, introduced the GST in his budget speech for 2006-2007. The Constitution Amendment Bill was introduced in 2011 to make the GST law.

Finally, in 2017, the GST Bill was passed by both the Houses of Parliament, and the GST law came into force on 1st April 2017.

Types of GST

Three types of taxes come under the purview of GST.

1. CGST
2. SGST
3. IGST

CGST

CGST stands for Central Goods and Services Taxes. It is collected by the central government. It is levied on the intra-state supply or sale of goods and services. CGST can be altered by the experts administered by the central government.

SGST

SGST stands for State Goods and Services Taxes. Although the central government oversees and controls the governing structure of the state, the SGST is collected by the state government. It is levied on the intra-state supply or sale of goods and services.

In other words, similar to CGST, SGST is also applied to the intra-state supply or sale of goods and services, but it is governed by the state government.

IGST

IGST stands for Integrated Goods and Services Taxes. It is collected by the central government. It is levied on the inter-state supply or sale of goods and services.

Difference Between GST and the Previous Taxation Law in India

There are notable differences between the GST and the taxation system that India had before:

1. Taxes like customs duty and central sales tax existed in India under the previous taxation system. But, under GST, except for petroleum, natural gas, and high-speed diesel, all central and state taxes are merged, and a single tax is charged on all goods and services.
2. Earlier, taxes were imposed either where the commodities were made or where the services were provided. On the other hand, taxes are imposed at the point of consumption under the current taxation system, i.e. GST.
3. Previously, the central excise and service tax were similar, but the VAT varied from state to state. The process is, however, the same under the GST system.
4. The registration process was operated under central and state administrations under India’s prior taxation system. However, the GST includes a mechanism for electronic registration based on the entity’s PAN.

How to Apply for GST

In order to sell something in India, a person must be registered for GST except for the things that come under the exempted categories. The following organisations and people are required to register for the Goods and Services Tax:

1. Online store organisation
2. Individuals who participate in e-commerce organisations as suppliers
3. People who use the reverse change technique to pay their taxes
4. Agents for input service providers and distributors
5. People who are not residents but pay taxes
6. Businesses with annual revenues that exceed the threshold
7. People who registered before the GST law was implemented

Here is the procedure for registration of GST:

1. You must first visit the official GST webpage.
2. After that, on the registration page, provide all the necessary information, like PAN number, email address, phone number, etc.
3. After entering the information, you will receive two OTPs, one on your email and the other on your mobile device.
4. Enter the OTP to verify your phone number and email id.
5. A temporary reference will be generated. Enter the generated temporary reference number in the TRN (Temporary Reference Number) field.
6. A verification of OTP will be asked again. You will be directed to the “My Saved Application” page after verifying it.
7. Complete the form’s fields and submit it within 15 days.
8. There are ten tabs or sections on this form. You will require scanned copies of your current bank account number, IFSC, and proof of the formation of business for this process. The following records are required in addition to the certificate of registration:
   • Photograph of the promoter
   • The principal location of the business
   • Evidence of the appointment of authorised signatory
   • A picture of the authorised signer
9. Proceed to part III after all of the documents have been submitted. You will have to choose to submit the application by selecting one of the following options for verification:
   • Electronic signature verification
   • Verification with the EVC
   • Verification with DSC

Applicability of GST on Advocates and Legal Services

Legal services include representational services in any court or tribunal as well as consulting or help in any area of law offered by attorneys or advocates.

GST applies to legal services provided by the advocates. However, under certain circumstances, GST does not apply to legal services. The exemptions for providing legal services to advocates, senior advocates, and firms of advocates are listed below:

1. Services provided by an individual advocate or firm are exempted from GST if it is provided to a sole advocate or any firm of advocates, a senior advocate, a business entity that qualifies for a registration exemption under the CGST Act of 2017, any agency of the government and non-commercial entity.
2. Senior advocates are exempted from GST if such services are provided to a business entity that qualifies for a registration exemption under the CGST Act of 2017, any agency of the government and a non-commercial entity.

How to Apply for GST and Its Applicability on Advocates
Subhashini Parihar

In this law note, you will learn how judges in India are appointed through the collegium system. This will give you a basic understanding of what the collegiums system is.

The primary objective of this law note is to analyze and evaluate the existing methods for appointing judges, considering their impact on the credibility and autonomy of the judiciary.

The appointment procedure of judges is an important aspect of judicial independence because the personality that ensures fair justice to all must be unbiased and free from any political influence, directly or indirectly. Also, this is an important aspect because the authorities must be fearless while giving judgments and performing their duties effectively.

What Is the Collegium System?

The collegium system is a method of appointing and transferring judges to higher courts in India. This is covered under constitutional law.

Under this system, the Chief Justice of India and a group of senior judges of the Supreme Court and High Courts have the power to make recommendations for the appointment and transfer of judges.

Historical Background of Collegium System in India

There are some nations where the procedure of appointing and transferring judges is different. For some countries, the appointment of judges by the head of state is a common practice. But in India, the appointment of judges to the higher judiciary, including the Supreme Court and the High Courts, follows a procedure that involves both the executive and the judiciary.

The term “collegium” does not appear in the Constitution of India. However, it has been established through judicial pronouncements as a mechanism for appointing and transferring judges in India.

The collegium system was introduced in 1993 by the Supreme Court of India through its judgment in the case of SP Gupta vs Union of India.

The collegium system prioritizes the judiciary in appointing and transferring judges, reducing the involvement of the executive branch in the process. The system involves a group of senior judges, led by the Chief Justice of India, who make recommendations for appointments and transfers based on the qualifications and suitability of the candidates.

The collegium system has also been criticized for lacking transparency and accountability and for being prone to favouritism and nepotism. As a result, in recent years, there have been calls for reforming the collegium system to make it more accountable and transparent.

Evolution of the Collegium System

Before 1993, the President appointed judges in India in consultation with the Chief Justice and two other senior judges of the Supreme Court.

Since 1993, the appointment and transfer of judges in the higher judiciary have been determined by the collegium system, which was created by the Supreme Court. Although the President of India remains the nominal appointing authority, the actual decision-making power now rests with the collegium.

These legal precedents through which this concept emerged and popularly known as “three judges transfer case” are mentioned below:

1. SP Gupta vs Union of India (1981)

The Supreme Court held that the power to transfer High Court judges rests with the central government but in consultation with the Chief Justice of India. The transfer must be based on objective criteria and not influenced by extraneous considerations.

The judgment emphasized the independence of the judiciary and discouraged any interference with its functioning. It had far-reaching implications for the functioning and freedom of the judiciary in India.

2. Supreme Court Advocates-on Record Association vs Union of India (1993)

The Supreme Court held in this case that the power to appoint judges to the higher judiciary rested with the judiciary. The collegium system, consisting of the Chief Justice of India and the four senior-most judges, was established to recommend appointments and transfers of judges.

The executive’s role was limited to providing information and consultation.

The executive could not overrule the collegium’s decision on appointments. The case emphasized the importance of judicial independence and the need for an impartial and competent judiciary.

3. Re Special Reference 1 of 1998

The Supreme Court held in In re Special Reference 1 of 1998 that the President is bound by the advice of the Council of Ministers under Article 74. The Council of Ministers must act collectively and be accountable to the Parliament.

The case clarified the role of the President and emphasised the principle of collective responsibility in the functioning of the executive branch of government in India.

Composition of Collegium

The collegium is a body of senior judges in India responsible for appointing judges to the higher judiciary, including the Supreme Court and High Courts. The composition of the collegium has evolved and is currently made up of the following:

1. Chief Justice of India (Chairman of the collegium).
2. Five senior-most judges of the Supreme Court.

Together, they form the six-member collegium.

In matters related to appointments, the opinion of the Chief Justice of India is given primacy. Also, the other members of the collegium have a say in the decision-making process.

Process of Appointment

Article 124(2) lays down the appointment procedure. It states that:

“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in Article 124A and shall hold office until he attains the age of sixty-five years.”

This appointment procedure has been named collegium after the judges-transfer cases.

The appointment procedure through the collegium involves the following steps:

1. Recommendation

The collegium recommends suitable candidates for appointment as judges to the higher judiciary, including the Supreme Court and High Courts.

2. Consultation

The recommendations are then forwarded to the government, which is required to seek the opinion of the Chief Justice of India and other members of the collegium.

3. Appointment

After considering the recommendations and opinions of the collegium, the government appoints judges to the higher judiciary.

Criticism of Collegium in India

Collegium has been the sole procedure for the appointment and transfer of judges in India, even though it has been subjected to criticism on the following:

1. Lack of Guidelines for Candidate Selection

The collegium system in India does not provide any guidelines for selecting candidates for the position of judge in the Supreme Court. The process of selection and appointment of judges is not open to public scrutiny, which has led to allegations of nepotism and favouritism.

2. Lack of Criteria for Candidate Testing and Background Investigation

It has been alleged that the collegium system does not have any criteria for testing candidates, nor does it investigate any background of the candidates.

Also, the collegium system is not accountable to any administrative body, which means the members of the collegium system are not answerable for the selection of judges.

3. Burden to Judiciary

With many cases already pending in the court, the limited time given to the collegium system for the appointment of judges would lead to a burden on the judiciary.

4. Violation of the Principle of Check and Balance

The collegium system violates the principle of checks and balances in the Indian government. The Second Judges Case (Supreme Court Advocates-on Record Association vs Union of India (1993)) established the supremacy of the judiciary over the executive, but the collegium system disturbs the principle of check and balance. This principle is necessary to ensure that no organ of democracy is exercising its power excessively.

5. Non-Transparency of the Judicial System

The collegium system leads to a lack of transparency in the Indian judicial system, which is very harmful to the regulation of law and order in the country. It has been alleged that judges are favoured and pre-decided based on their contacts and approach.

Introduction of NJAC

The National Judicial Appointment Commission (NJAC) was a landmark proposal by the Indian government aimed at bringing transparency and accountability to the process of appointing judges to the higher judiciary in India.

The NJAC was proposed through the National Judicial Appointments Commission Bill, 2014, by the then Minister of Law and Justice, Ravi Shankar Prasad, and was passed by both houses of Parliament under the 99th Constitutional Amendment Act, 2014.

The Act proposed a unique composition of the NJAC, comprising members from the legislative, judicial, and civil society, to ensure a balanced and unbiased approach to the appointment of judges.

However, the Supreme Court declared the NJAC unconstitutional in 2015 and upheld the collegium system as the method for the appointment of judges. This has been a significant and controversial issue in the Indian judiciary and has led to discussions on the need for reform in the appointment process of judges in the country.

Related: What Are the Arguments Against and in Favour of the NJAC Act?

Composition of NJAC

The proposed composition of the NJAC included the following:

1. Chief Justice of India as the Chairman (ex-officio).
2. Two most senior judges of the Supreme Court (ex-officio).
3. The Union Minister of Law and Justice, and
4. Two eminent persons (selected by a committee comprising the Prime Minister, the Chief Justice of India, and the Leader of the Opposition).

The Legal Status of NJAC

The NJAC was declared unconstitutional by the Supreme Court of India in October 2015 in the case of Supreme Court Advocates on Record Association vs Union of India because it violated the basic structure doctrine of the Indian Constitution by diluting the independence of the judiciary.

As a result, the NJAC was never implemented, and the collegium system continues to be the prevailing method for the appointment of judges in India.

What Is the Current Procedure for Judicial Appointments in India?

Article 124 and Article 217 of the Constitution deal with the appointment of judges in India. Since independence, no alternative has been found for the appointment procedure of judges. NJAC was introduced in 2014 but was struck down by the Supreme Court in 2015 and never used as a procedure. Currently, the collegiums system is followed in India for the appointment and transfer of judges. This system is based on seniority and merit.

The collegium system has been the subject of much criticism, with concerns raised about transparency, accountability, etc. The debate on reforming the appointment process is ongoing, with various suggestions and proposals being put forward to address these concerns.

Conclusion

The collegium system has faced challenges in recent years, with allegations of interference by the central government in the appointment process and delays in the appointment of judges. These controversies have highlighted the challenges the judiciary faces in maintaining its independence and impartiality and have underscored the need for transparency and accountability in the appointment process.

Despite these challenges, the collegium system remains an important mechanism for ensuring the appointment of judges to the higher judiciary. The system needs to be reformed and strengthened to ensure greater transparency and accountability and to make sure that the judiciary remains independent and impartial in carrying out its duties.

What Is the Collegium System in India and How It Works?
Bhanu Choudhary

Citation of cases refers to acknowledging and referencing legal cases within legal documents such as briefs, memoranda, court opinions, and other legal documents.

Citing a case involves providing the full name of the case, the volume number of the reporter in which the case was published, the abbreviated name of the reporter, the page number on which the case begins, and the year in which the case was decided.

This information helps lawyers, judges, and researchers to locate and read the full text of the case cited.

Citations are essential in legal writing because they give credit to the original source and help the reader verify and contextualise the presented arguments. Accurate and complete citations are crucial to maintain the integrity of the legal system and ensure that legal arguments are based on reliable and authoritative sources.

Illustrations Related to the Citation of Cases

Here are some easy examples.

1. Supreme Court of India

• Case Name: State of Punjab v. Jagjit Singh
• Citation: AIR 1979 SC 381

In this citation, “AIR” refers to the All India Reporter, a widely used legal publication in India. “SC” indicates that the Supreme Court of India decided the case, and “381” is the page number on which the case begins.

In other words, here, 1979 is the year in which the case was decided, and the case can be located on page number 381 of AIR, released in 1979.

2. High Court of Delhi

• Case Name: Delhi Development Authority v. Skipper Construction Company Pvt. Ltd.
• Citation: 2019 SCC OnLine Del 7255

In this citation, “SCC OnLine Del” refers to the online version of the Supreme Court Cases, a leading legal publication in India, specifically the Delhi section. “7255” is the unique identifier number assigned to the case by the website.

3. National Company Law Tribunal

• Case Name: Tata Steel Limited v. Liberty House Group PTE. Ltd.
• Citation: (2018) 143 SCL 503 (NCLT)

In this citation, “SCL” refers to the Securities and Exchange Board of India (SEBI) and Corporate Law Cases, a legal publication in India specialising in corporate law cases. “NCLT” indicates that the case was decided by the National Company Law Tribunal. “143” is the volume number of the publication in which the case is reported, and “503” is the page number on which the case begins.

4. High Court of Bombay

• Case Name: Kailas Wamanrao Gorantyal v. Vinayak Deorao Bhagat
• Citation: (2019) 2 Bom CR 745

In this citation, “Bom CR” refers to the Bombay Cases Reporter, which is a regional legal publication that reports on cases from the Bombay High Court. “2” is the volume number, and “745” is the page number on which the case begins.

5. District Court

• Case Name: State v. Mohd. Iliyas
• Citation: 2017 CriLJ 1069

In this citation, “CriLJ” refers to the Criminal Law Journal, a legal publication in India that reports on criminal law cases. “1069” is the page number on which the case begins. The absence of a court abbreviation indicates that a district court decided the case.

These are just a few examples of how cases are cited in India. The specific citation format may vary depending on the court, publication, and type of case being cited. However, the essential elements of a case citation remain the same, including the case name, volume number, reporter name, page number, and year of decision.

Advantages of Case Citation

There are several advantages to case citation, which include:

1. Accuracy

Case citation helps ensure accuracy in legal research by allowing the reader to locate the original case and verify the presented information.

2. Authority

Citing a case provides authority for legal arguments by showing that the argument is based on previous judicial decisions and legal principles.

3. Consistency

Case citation provides a consistent and standardised format for referencing legal cases, which makes it easier for lawyers, judges, and researchers to communicate and understand legal concepts.

4. Efficiency

Citation of cases allows for more efficient legal research by providing a roadmap to locate the original sources, thereby saving time and effort.

5. Preservation of Legal History

Case citation helps preserve judicial legal history by creating a record of past decisions that can be used for future legal research and analysis.

6. Clarity

Citation of cases makes legal writing more transparent and more precise by allowing the reader to identify and locate the legal authority being cited easily.

Overall, case citation is an essential tool for maintaining the integrity of the legal system and ensuring that legal arguments are based on reliable and authoritative sources.

Also Read: Techniques for Proper Case Management in Civil Courts in India

Disadvantages of Case Citation

While case citation has several advantages, there are also some potential disadvantages, which include:

1. Overreliance on Precedent

Overreliance on precedent, or the tendency to base legal arguments solely on previous judicial decisions, can stifle creativity and prevent the development of new legal principles.

2. Inaccurate or Incomplete Citations

Inaccurate or incomplete case citations can lead to confusion and errors in legal research, potentially leading to incorrect legal conclusions.

3. Outdated or Irrelevant Precedent

The precedent may become outdated or irrelevant over time as societal values and circumstances change, and relying too heavily on past decisions may lead to unjust or impractical outcomes.

4. Regional Bias

Different courts and jurisdictions may interpret legal principles differently, and relying solely on cases from one region may create a regional bias in legal analysis.

5. Time-Consuming

Proper citation of cases can be time-consuming and require significant effort to research and format the citations correctly.

It is essential to recognise these potential disadvantages of case citation and use it judiciously and critically, balancing the benefits of precedent with the need for flexibility and adaptability in the legal system.

Conclusion

In conclusion, case citation is essential for legal research and analysis while simultaneously providing accuracy, authority, consistency, efficiency, preservation of legal history, and clarity to readers, learners, practitioners, and all other people involved in the legal profession.

However, there are also potential disadvantages, such as overreliance on precedent, inaccurate or incomplete citations, outdated or irrelevant precedents, regional bias, and the time-consuming nature of citations.

Therefore, legal professionals must use case citations judiciously, balancing the benefits of precedent with the need for flexibility and adaptability in the legal system.

Ultimately, case citation is a powerful tool for maintaining the integrity of the legal system and ensuring that legal arguments are based on reliable and authoritative sources.

Read Next:

• What Are Case Comments and Their Significance in Legal Analysis?
• Application of Social Research Findings in the Field of Law
• Important Legal Abbreviations Related to Case Laws

What Do You Mean by Citation of Cases? Explained With Illustrations
Dinesh Verma

Shreya Singhal v. Union of India AIR 2015 SC 1523
Date of Judgement: 24 March 2015

In this article, you will read about the landmark judgement of Shreya Singhal along with its facts, issues, judgement and how it reaffirmed the importance of free speech and expression in a democracy.

Introduction

Shreya Singhal vs Union of India is a landmark judgment delivered by the Supreme Court of India in 2015, which upheld the constitutional validity of freedom of speech and expression on the Internet.

The case was filed in response to section 66A of the Information Technology Act, 2000, which criminalised sending offensive messages through computers or communication devices.

The petitioner, Shreya Singhal, challenged the provision on the grounds of being vague, overbroad, and violative of the Fundamental Right to freedom of speech and expression enshrined in the Indian Constitution.

In addition, the case raised important questions about the scope and limitations of free speech in the digital age and the balance between individual rights and state regulation in the online space.

Facts of the Case

In 2012, two girls were arrested in Mumbai for posting comments on Facebook criticizing the shutdown of the city for the funeral of Shiv Sena leader Bal Thackeray.

The girls were charged with offences under section 66A of the Information Technology Act, which criminalised sending “offensive” or “menacing” messages online. The section also punished the sending of information which was “grossly offensive” or had a “menacing character“.

The arrests of the girls generated widespread indignation (anger), with many advocating for section 66A to be repealed.

Shreya Singhal, a law student, petitioned the Supreme Court of India, questioning the provision’s validity. She said the terminology was ambiguous, overbroad, and stifling of free expression.

The case was considered by a Supreme Court division bench comprised of Justices J Chelameswar and Rohinton Fali Nariman.

During the hearing, the government argued that section 66A was necessary to curb hate speech and prevent the spread of fake news. The petitioners, on the other hand, alleged that the provision was being used to stifle genuine dissent and criticism. Accordingly, the court notified the government and asked it to respond to the petition.

In the meantime, more and more cases were being filed under section 66A, leading to a growing public outcry. As a result, the court was inundated (flooded) with petitions challenging the section’s constitutionality.

Issues of the Case

The issues involved in the case of Shreya Singhal vs Union of India were:

1. Whether section 66A of the Information Technology Act, 2000 violates the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution?
2. Whether section 66A of the IT Act is vague and overbroad and, therefore, liable to be struck down?
3. Whether section 66A of the IT Act creates a chilling effect on free speech?
4. Whether the terms ‘grossly offensive’ and ‘menacing character’ used in section 66A of the IT Act are vague and uncertain?
5. Whether section 66A of the IT Act is a reasonable restriction on the right to free speech and expression?

The key issue in the case of Shreya Singhal vs the Union of India was whether section 66A of the Information Technology Act, 2000 violated the Fundamental Right of free speech and expression as guaranteed under Article 19(1)(a) of the Constitution of India.

Section 66A of the IT Act made it an offence to send “offensive” messages using a computer or any other communication device.

However, the term “offensive” was not defined clearly, and the provision was widely criticized for being vague and allowing for arbitrary interpretation and misuse. The phrase also lacked safeguards against misuse or misapplication, prompting concerns that it may be used to limit free expression and silence critical voices.

The case raised the issue of whether such a provision, which had the potential to curtail free speech and expression, could be allowed to exist in a democratic society that values the right to free speech as a Fundamental Right.

Judgement

The Supreme Court of India, in the case of Shreya Singhal vs the Union of India, AIR 2015 SC 1523, passed a landmark judgment on March 24, 2015, declaring section 66A of the Information Technology Act, 2000, as unconstitutional.

Sending material through a computer resource or a communication device that is egregiously offensive, menacing, or causes irritation, discomfort, danger, obstruction, insult, harm, criminal intimidation, hostility, hatred, or ill will is illegal, according to section 66A. The section also provided for the punishment of any person who knowingly or intentionally disseminates any information that is known to be false and is prejudicial to national integration or may cause incitement to an offence.

The issue before the court was whether section 66A violated the Fundamental Right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution.

The court held that section 66A was vague and overbroad. Therefore, it did not satisfy the test of constitutionality laid down under Article 19(2) of the Constitution, which provides for reasonable restrictions on the freedom of speech and expression.

In addition, the court held that the terms used in section 66A were undefined and, therefore, left too much to the discretion of law enforcement agencies, leading to arbitrary and discriminatory application of the law.

The court also held that section 66A exceeded the reasonable restrictions that could be imposed under Article 19(2), as it criminalized speech that was not directly linked to any harm or threat to public order, national security, or other legitimate state interest.

The court, therefore, struck down section 66A as unconstitutional and held that it had a chilling effect on free speech and expression and could be used to suppress opposition and government criticism.

The judgment in the Shreya Singhal case is significant as it reaffirms the importance of free speech and expression in a democracy and underscores the need for laws to be clear, precise, and narrowly tailored to meet legitimate state interests.

The judgment also highlights the judiciary’s role in protecting Fundamental Rights and ensuring that laws are not misused to curtail those rights.

How Does the Shreya Singhal vs Union of India Judgement Reaffirm the Importance of Free Speech and Expression in a Democracy?

The judgment in Shreya Singhal vs Union of India reaffirmed the importance of free speech and expression in a democracy. The court noted that the Internet had become an essential part of the right to free speech and expression and that any attempt to curtail this right would violate Article 19(1)(a) of the Constitution of India.

The court highlighted that any restrictions on speech or expression must be reasonable and carefully tailored to serve the interest at stake. The court also held that vague and ambiguous provisions in the law could not be used to restrict free speech and expression.

In this case, the court struck down section 66A of the Information Technology Act as unconstitutional because it was vague and overbroad and chilled free speech and expression.

In addition, the court held that section 66A was not narrowly tailored to serve a legitimate state interest and was not proportionate to the interest sought to be achieved.

The ruling upholds the fundamental idea that a democratic society’s foundation is freedom of speech and expression. Any attempt to curtail this right must be carefully scrutinized to ensure it is justified and proportionate. The judgment has been widely hailed as a landmark decision in the field of free speech and expression in India.

The judgement reinforces the constitutional value of free speech and expression, a Fundamental Right enshrined in the Indian Constitution. The right to receive, transmit, and share information and ideas, as well as the right to voice disagreement and criticism, were both upheld by the court.

The judgement highlights the importance of ensuring that laws regulating free speech are narrowly tailored to achieve their intended purpose and do not impinge on the constitutional right to free speech and expression.

The court’s ruling strengthens the judiciary’s role as a defender of individual rights and liberties against the overreach of the state. It sends a message that individuals have the right to challenge unconstitutional laws and seek protection from the judiciary.

The case also underscores the significance of social media and the Internet in shaping public discourse and providing a platform for free expression. The court recognized the Internet as a vital medium for exercising the right to free speech and expression. It acknowledged the need to balance the competing interests of free speech and regulation in the digital age.

Conclusion

The Shreya Singhal vs Union of India case was a landmark judgement in Indian constitutional law reaffirming the importance of freedom of speech and expression in a democracy.

The judgement struck down section 66A of the IT Act as unconstitutional and, in doing so, provided greater protection for individuals to express their opinions and thoughts online without fear of prosecution.

The case also highlighted the importance of balancing free speech with the need to protect individuals from hate speech, cyberbullying, and other forms of online harassment.

The judgement set a powerful precedent for future cases related to online free speech and expression and continues to be an important reference point for constitutional lawyers and scholars in India.

Read Next:

• The Impact of Social Media and the Internet on Free Speech
• Right to Freedom and Personal Liberty Under the Indian Constitution
• Vivek Narayan Sharma vs Union of India – Demonetization Case Explained

Shreya Singhal vs Union of India – Case Explained in Easy Words
Suhani Dhariwal

In this article, we will discuss the significance of case comments in legal analysis, along with their advantages and disadvantages.

Significance of Case Comments in Legal Analysis

In a legal context, case comments are written analyses of court cases, typically authored by legal scholars, law students or practising attorneys.

Case comments provide an in-depth analysis of the key legal issues, procedural elements, and legal reasoning used in a particular court decision. They may also offer commentary on the implications of the decision, its impact on the legal landscape, and potential future developments in the area of law. Case comments can provide insight, guidance, or criticism to legal professionals, policymakers, and the general public.

Case comments can be found in legal journals, law reviews, and other legal publications. They are usually structured following the key elements of a court decision, such as the facts of the case, the legal issues presented, the court’s analysis and reasoning, and the court’s holding or decision. In addition, case comments often provide a detailed analysis of the court’s reasoning and may also offer alternative interpretations or critiques of the decision.

Case comments are an essential resource for legal professionals, scholars, and students who want to stay up-to-date on the latest developments in the law. They can also be helpful for non-lawyers who wish to gain a better understanding of legal issues and how courts approach them.

By reading case comments, individuals can learn about the legal arguments, policies, and principles underlying court decisions and better understand the impact of those decisions on society as a whole.

Advantages of Case Comments

There are several advantages of case comments, including:

1. In-Depth Analysis

Case comments provide a detailed analysis of a court decision, including the legal issues involved, the court’s reasoning, and the decision’s potential implications.

2. Understanding of Legal Principles

By reading case comments, individuals can better understand legal principles and how they are applied in real-world cases.

3. Stay Up-To-Date

Case comments can help legal professionals, scholars, and students stay up-to-date on the latest law and legal trends.

4. Critical Thinking

Case comments often provide alternative interpretations or critiques of a court decision, which can encourage critical thinking and further analysis of legal issues.

5. Useful for Research

Case comments can be a valuable resource for legal research, providing insights into previous court decisions and potential future developments in the law.

6. Accessibility

Case comments are often published in legal journals and other legal publications, making them widely accessible to legal professionals, scholars, and students.

Disadvantages of Case Comments

While case comments have several advantages, there are also some potential disadvantages to consider:

1. Bias

Legal professionals, scholars, or students often write case comments with their own biases and perspectives. As a result, it can sometimes lead to a one-sided analysis of a court decision.

2. Limited Scope

Case comments may focus only on a single court decision and may not comprehensively analyse a particular area of law or legal issue.

3. Time-Sensitive

Case comments may become outdated as new court decisions are made or legal trends shift.

4. Limited Availability

Some case comments may only be available in expensive legal journals or other publications, making them inaccessible to individuals without the resources to access these materials.

5. Not Legally Binding

While case comments provide insightful analysis of court decisions, they are not legally binding and do not have the same weight as the actual court decision itself.

Conclusion

Overall, case comments can be valuable for understanding court decisions and legal issues. It is essential to approach them critically and to use multiple sources to gain a well-rounded understanding of the legal landscape.

Also, case comments are an indispensable tool for anyone interested in the law and legal issues, providing a more profound knowledge of court decisions and their potential impact on society.

Read Next:
1. How to Remember Important Case Laws
2. Important Case Nomenclatures Used in Indian Courts
3. What Is Case Law Research and Its Advantages and Disadvantages?
4. Importance of Case Analysis and Understanding of Cases in Legal Studies

What Are Case Comments and Their Significance in Legal Analysis?
Dinesh Verma

Parliamentary Privileges are special immunities available only to the members of the legislature (legislative members), while Fundamental Rights are guaranteed by the Constitution to every citizen and, in some cases, to non-citizens as well. At times, there have been conflicts between these two, and this law article discusses the result of such conflicts.

The Concept Behind Conferring Parliamentary Privileges

Ideally, lawmakers should be subjected to the laws which they create just as they would bind other citizens. But in light of their duties as a particular class of public officials, the concept of parliamentary privilege appears justified.

Sir Thomas Erskine May defined parliamentary privileges as:

“The sum of the peculiar rights enjoyed by each House collectively is a constituent part of the High Court of Parliament and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.”

Thus, the purpose behind conferring privileges was to ensure certain immunities for the business of the House to be unfettered by fear or favour.

The will of the people, expressed through the election of their representatives, is supreme in a democracy. So, keeping the best interests of democracy in mind, the framers of the Indian Constitution included the concept of parliamentary privileges. In India, such privileges, under Article 105(4), also extend to individuals who have a right to speak and take part in the proceedings of the House or any of its committees.

Privileges Conferred Individually and Collectively: Article 105 and Article 194

Article 105 of the Indian Constitution defines parliamentary privileges enjoyed by the Parliament collectively and its members individually.

Article 194, which is a replica of Article 105, defines the privileges of the state legislature. Two privileges are defined by name; these include:

1. The freedom of speech and
2. The freedom of publication of proceedings.

The House may define other privileges from time to time, and until so defined, shall be those that were prior to the commencement of the 44th Amendment in 1978.

Parliamentary Privileges: Evolution and Status Quo

Despite the change in the terminology, other privileges are still those that were enjoyed by the British House of Commons at the commencement of the Constitution. However, only the privileges enjoyed by the House of Commons as legislature are available to the Indian legislature and not the ones enjoyed by the House of Commons as the judiciary. No privileges have been defined so far, so the powers and privileges of the Parliament are still those of the “British House of Commons at the commencement of the Constitution.” The Supreme Court has always referred to British precedents to adjudicate matters of a ‘breach of privilege’ of the Indian Parliament.

Article 105 mentions freedom of speech and freedom of publication of proceedings by name. These privileges include immunity from court proceedings for words said and vote cast or publications made by a member in furtherance of the business of the House.

Other privileges include freedom from arrest, the right to exclude strangers from the session, the right to prohibit the publication of debates, the right to regulate its composition with regards to vacancies, qualifications and disputed elections, or the expulsion of members.

The Parliament also has a right to regulate its internal proceedings, to adjudicate upon matters in the vicinity of the House, and to expel members when it deems necessary.

Finally, to safeguard its interests, the Parliament also has a right to punish members and strangers for breach of privilege or ‘contempt of the House’.

The Use and Abuse of Parliamentary Privileges

In August 1961, the Lok Sabha issued a notice to RK Karanjia, the editor of Blitz. This was for an article titled The Kripaloony Impeachment, which wrote about JB Kripalani’s criticism of the then Defence Minister. It was alleged that the article libelled an honourable member of this House and referred to him in a contemptuous and insulting manner. In attempts to diffuse the situation, the New Delhi correspondent of the magazine had to apologise to the House.

In 1984, the Legislative Council of Andhra Pradesh summoned Ramoji Rao, the editor of Eenadu. Mr Rao moved the Supreme Court, and it ordered a stay against his arrest. This order was disregarded by the Chairman of the Council, who directed the commissioner of police to produce Mr Rao before the Council. The court passed another order which restrained the commissioner from arresting Mr Rao. Surprisingly, the Council Chairman urged the commissioner to ignore this order too. Before the event could turn any uglier, NT Rama Rao, the Chief Minister, asked the Governor to prorogue the Council.

In another incident in 1987, the speaker of the Tamil Nadu assembly got S Balasubramaniam, the editor of Ananda Vikatan, imprisoned after condemning him unheard.

In all the above cases, we saw a direct conflict between Fundamental Rights and privileges. Some other cases that dealt with different perspectives of the relationship between these two are dealt forthwith below.

Balancing Fundamental Rights and Parliamentary Privileges: Article 19 (1)(a), Article 21, and Article 194

Generally, Fundamental Rights enjoy supremacy over any other provision of the Constitution. However, the very nature of parliamentary privilege is to make the members more equal than others, and because of the looming uncertainty over their codification, these have, at times, conflicted with Fundamental Rights. The courts have followed different rationales to identify if one prevails over another.

GK Reddy vs Nafeesul Hassan Case (1954 SC 636)

Homi Dinshaw Mistri (a deputy editor of the magazine Blitz) was arrested on charges of breach of privilege in Bombay and taken to Lucknow. He was detained for production before the speaker of the Uttar Pradesh Legislative Assembly. A Habeas Corpus petition was filed for his release under Article 32. It was alleged that Mr Mistri was not produced before a magistrate within twenty-four hours of arrest. The Attorney General admitted before the court that the allegations are well founded. This was required under Article 22(2) of the Constitution. Hence, the court accepted the Habeas Corpus petition and directed that Mr Mistri be released.

In this case, the privileges were overshadowed by the Fundamental right guaranteed under Article 22(2). However, this was not treated as a precedent by the court in The Searchlight Case.

MSM Sharma vs SK Sinha (1960 AIR 1186): The Searchlight Case

In Bennett Coleman & Co. & Ors vs Union of India (AIR 1973 SC 106), the Supreme Court declared that:

“Freedom of the press is the ark of the covenant of democracy because public criticism is essential to the working of its institutions.”

And this is the norm; freedom of the press has always been read into the freedom of speech and expression guaranteed under Article 19(2).

However, like every major norm, this also has exceptions, and the Supreme Court decided differently in 1960.

In MSM Sharma vs Sri Krishna Sinha, also known as the Searchlight Case, the court was confronted with the question of whether the right to freedom of the press prevailed over parliamentary privileges under Article 194.

In this case, a member of the Bihar Legislative Assembly had criticised the incumbent Chief Minister. Some accusing remarks were made that suggested that the Chief Minister had appointed ministers and made improper transfers of civil servants at the behest of a former industry minister. Questions were asked as to how this former minister had been appointed as the chairperson of the Bihar State Khadi Board just to get him accommodation in the state’s capital city. The speaker decided to expunge most of the references to the name of this former minister from the official records of the proceedings.

But in contravention, The Search Light, a newspaper, reported the contents of the speech and published the name of the former minister. The assembly issued a notice of breach of privileges to its editor and publisher for reporting the expunged remarks.

The editor decided to approach the Supreme Court under its writ jurisdiction. He argued that proceedings for the breach of legislative privileges would violate his right to ‘freedom of speech and expression’ (Article 19(1)(a)) and ‘personal liberty‘ (Article 21).

The court framed two legal questions, namely:

1. Whether the legislature could use its privileges to restrict reportage of openly conducted proceedings; and
2. Whether these privileges would prevail over the freedom of speech and expression of the petitioner?

The court observed that the House of Commons had the privilege of prohibiting the publication of even honest reports of the proceedings of the House. The majority upheld that the exercise of privileges can override the Fundamental Right to freedom of speech and expression under Article 19(1)(a). Thus, the court held that Article 19(1)(a) must yield to Article 194(3) as this was the only way of ‘reconciling’ the two.

Chief Justice CR Das also explained why the legislature is resistant to the codification of privileges. He held that if a ‘law’ codifies privileges, it would be subject to Fundamental Rights like any other ‘law’.

Justice Subba Rao dissented. He remarked that the House of Commons had no privilege of prohibiting honest reports of the proceedings of the House. He opined that the reasoning adopted by the court would ‘unduly circumscribe’ the cherished right to freedom of speech and expression.

The Searchlight Case opened a pandora’s box, one that was bound to unleash a tussle between the judiciary and the executive over parliamentary privileges.

Keshav Singh’s Case (Special Reference No 1 of 1964 AIR 1965 SC 745)

This decision can be seen as one where the court saw the need to ‘recapture the genie’ it had let loose in the Searchlight Case.

On 14 March 1964, the UP Assembly initiated privilege proceedings against Keshav Singh for circulating a pamphlet criticising a serving legislator. Later that day, the speaker issued an arrest warrant. This was because of his behaviour upon receiving the notice and a ‘disrespectful’ letter sent to the speaker. Keshav Singh was detained. He petitioned the Lucknow bench of the Allahabad High Court for a writ of habeas corpus.

A two-judge bench of the court directed his release the next day.

This was met with the heavy hands of the assembly, which issued a fresh notice of breach of privileges roping in the two judges, Keshav Singh, and even his lawyer. The notice required them to be produced in custody before the Assembly. Even Keshav Singh’s fresh detention was ordered after the initial period of detention.

The affected parties rushed to the Allahabad High Court, where a full bench of 28 judges issued an interim order restraining the assembly. The sorry state of affairs made the President seek an advisory opinion from the Supreme Court under Article 143(1).

The legal questions were focused on whether privileges can be invoked against acts done outside the House and whether they are open to judicial scrutiny. HM Seervai argued for the assembly that it had wide powers to define its privileges through resolutions, and MC Setalvad, appearing on behalf of the judges, argued that such acts of the legislatures are open to judicial scrutiny.

A special bench with 7 judges ruled by 6-1 that the content of Article 194(3) must ultimately be determined by courts and not legislatures.

The court made the following observations:

• The writ jurisdiction of the High Courts is not subject to parliamentary privileges.
• The right to move Supreme Court under Article 32 is not subject to privileges, and it is an ‘absolute right’.
• The guarantee of personal liberty under Article 21 applies when the legislature exercises its privileges. If a person alleges a violation of his right to life and personal liberty, the court will examine the merits of the contention as a duty. It will then be scrutinised by the court whether the liberty was taken according to the procedure established by law.
• The court also observed that it is not laying down a general rule that Fundamental Rights will always prevail over privileges. In para 127, it held, “As we have already indicated, we do not propose to enter into a general discussion as to the applicability of all the Fundamental Rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country, and that we are dealing with this matter on the footing that Article 19(1)(a) does not apply and Article 21 does.“

The Hindu and Murasoli Case

In another case, Tamil Nadu Legislative Assembly passed a resolution in 2003 directing the arrest and imprisonment of six employees of The Hindu and Murasoli, its sister publication.

They were directed to be arrested for fifteen days. This was in response to an editorial the newspaper carried titled Rising Intolerance. It also prohibited journalists of these newspapers from reporting the legislature’s proceedings for 15 days.

This editorial defended previous reports which had criticised Chief Minister Ms J Jayalalithaa for the use of strong language in her speeches.

The privilege committee recommended punitive steps, and a proceeding was initiated. The Supreme Court ordered a stay, and this unwarranted campaign was brought to a halt.

Conclusion and Suggestion

The Indian legislatures cite British precedents to justify their stance for initiating privilege proceedings. However, on 9 December 1975, Bernard Levin wrote in The Times (London) and pointed out the ‘curious passion the House of Commons seems to have for making a collective ass of itself’. Interestingly, no privilege proceedings were initiated by the House of Commons. We can only imagine how Levin would’ve been reprimanded and arrested for ‘contempt of the House’ in India.

This is exactly why in 1954, the first Press Commission proposed the codification of privileges owing to the ‘oversensitiveness of the legislature to honest criticism‘. We see the need to codify parliamentary privileges to prevent their abuse. The very purpose of conferring these privileges was that the will of the people find a voice in the House. What was conferred as a shield must not be used as a sword to stifle honest dissent against the government. Even the doctrine of harmonious construction also directs that the Fundamental Rights of the populace must prevail over the ‘privileges’ of the representatives they elect.

Relationship Between Fundamental Rights and Parliamentary Privileges in India
Tanzeel Islam Khan