Tag Archives: #law

LAW

It is the discipline and profession concerned with the customs, practices, and rules of conduct of a community that are recognized as binding by the community. Enforcement of the body of rules is through a controlling authority. Articles that delineate the relationship of law to political structures are constitution; ideology; political party; and political system. Law can be divided into two main domains. Public law concerns government and society, including constitutional law, administrative law, and criminal law. Private law deals with legal disputes between individuals and/or organisations in areas such as contracts, property, torts/delicts and commercial law.

LEGAL METHODS

There are distinguished methods of legal reasoning and methods of interpreting the law.

JUDICIARY

A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority. Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional.

LEGAL PROFESSION

Legal profession, vocation that is based on expertise in the law and in its applications.

CHARACTERISTICS OF LEGAL PROFESSION

  • Social role
  • Private practice
  • Public-directed practice

CONTEMPORARY TRENDS

The prevalence of mergers between law firms of different countries is indicative of the profound changes in the legal profession brought about by globalization—the increasing exchange across international boundaries of capital, goods, technology, services, personnel, and ideas. Law firms have also taken advantage of technological advances in computers and the Internet to avail themselves of electronic databases for legal research, to provide legal advice to clients far from their home offices, and even to develop software that can be used to reduce the human element in the preparation of contracts, licensing agreements, wills, and other documentation. Supporters of these changes suggest that they will better equip law firms to compete with large accounting firms and other organizations that offer legal services, while opponents worry that they are helping to erode the distinction between law and business.

AREAS OF LAW

  • International law
  • Constitutional law
  • Administrative law
  • Criminal law
  • Contract law
  • Tort law
  • Property law
  • Equity and trusts
  • Labour law
  • Evidence law
  • Family law
  • Transactional law
  • Intellectual property law
  • Commercial law
  • Admiralty law
  • Space law
  • Immigration law
  • Tax law
  • Banking law
  • Consumer law
  • Environmental law
  • Air law
  • Competition law

LEGAL ETHICS

Principles of conduct that members of the legal profession are expected to observe in their practice. In India, under the Advocates Act of 1961, the Bar Council of India is responsible for creating rules for registering advocates, regulation of legal ethics, and for administering disciplinary action.

Principles of legal ethics, whether written or unwritten, not only regulate the conduct of legal practice but also reflect the basic assumptions, premises, and methods of the legal system within which the lawyer operates. They reflect as well the profession’s conception of its own role in the administration of justice.

A system in which a lawyer presents a client’s case in the most favourable light permitted by law and in which the court must decide the merits of the case may well produce different answers than those produced in a system that assigns a higher priority to the lawyer’s duty to the state to assure proper administration of justice.

AREAS OF APPLICATION

  • Conflict of interest
  • Confidential communications
  • Advertising and solicitation
  • Fees
  • Criminal cases
  • globalization

MURDER

In India according to Section 300 of the Indian Penal Code, 1860, murder is defined as follows:

Murder.–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 167 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any e

Culpable homicide (section 299 of Indian Penal Code, 1860)is defined as

By causing death of person other than person whose death was intended.–If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause for incurring the risk of causing death or such injury as aforesaid.

Culpable homicide is a term wider than murder. Therefore, Culpable homicide is considered as the genus while murder is regarded as a species. Murder is an aggravated form of culpable homicide. In culpable homicide the knowledge is not so definite, while in murder the offender has a definite knowledge that the act would be resulting in death. Thus, the probability of causing death is higher in murder than in culpable homicide.

CAUSES OF MURDER

  • Lust
  • Love
  • Loathing
  • Loot

CIRCUMSTANCES IN AWARDING DEATH SENTENCE

Supreme Court held that following mitigating circumstances are relevant and must be given weightage in determination of sentence.

  • The age of the accused.
  • The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.
  • The probability that the accused can be reformed and rehabilitated.
  • That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  • That the accused acted under the duress or domination of another person.
  • That to condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

NAME OF CASES

  • State of Tamil Nadu v. T. Suthanthiraraja
  • State v. Sushil Sharma
  • Swamy Sharaddananda @ Murli Manohar Mishra v. State of Karnataka
  • Prajeet Kumar Singh v. State of Bihar
  • State of Tamil Nadu v. Rajendran

ITS ONLY MURDER IF THEY FIND A BODY OTHERWISE ITS JUST A MISSING PERSON.

LIVE-IN-RELATIONSHIPS

Live-in-relationships also referred to as cohabitation is an arrangement where two people live together but are not married.  They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis.

OBJECTIONS

Contemporary objections to cohabiting couples include religious opposition to non-marital unions, social pressure for couples to get married and potential effects of cohabitation on a child’s development.

EFFECT ON CHILDREN

  • lower performance in school
  • greater risk of suspension or expulsion
  • behavioral and emotional problems

ADVANTAGES

  • No social and legal responsibilities
  • Net practice before the final match
  • Sharing is caring
  • Lesser account abilities and duties
  • Freedom to take decisions
  • Compatibility test
  • Equality and mutual understanding

DISADVANTAGES

  • Free to exit anytime
  • Social Acceptance
  • No new excitement
  • Lack the respect and stability of marriage
  • Societal pressure and criticism
  • Lack of commitment
  • Receiving end
  • Nature, behaviour, temperament, attitude everything changes in partners after marriage

INDIAN LAW

Live-in relationships, being an alien concept to the Indian legislature does not have any legal implications for the couples who live together without marriage involved in the relationship. Since living relationships also support pre-marital sex, there are high chances of a child being born. These children, unlike the successors born out of wedlock, do not have any rights over the inheritance. Besides this, society treats them as illegitimate children, which is unacceptable. However, the Hon’ble Supreme Court cleared them of this ill-fated and granted them the status of a legitimate child along with the right to property. Live-in relationships were legally considered void-ab-initio. But in a judgment in 1978, such relationships are valid for the first time because of the Supreme Court. If the requisites of a marriage such as mental soundness, the fulfillment of the legal age of marriage, consent, etc. are all satisfied, the couple is considered to be in a legal live-in relationship.

DIFFERENCE BETWEEN MARRIAGE AND LIVE IN RELATIONSHIPS

  • The union of two persons that is formally recognized by law is known as marriage. It is a formal commitment between the couple and Live in relationship refers to a kind of an arrangement where a couple decides to live together.
  • Mostly the children born from a marriage are socially accepted and parents often find happiness to have them in their life and Children born out of a live in relationship may require some commitments and it depends upon the couple that how they would manage the raising of children.
  • Marriages come with responsibilities and one tends to be answerable to the other. However, sometimes the freedom may also be restricted and live in relationships are associated with the freedom, both tend to have their own space as no obligations or responsibilities are involved.
  • Marriages are also associated with the union of families rather than the individuals. Even if there is not much involvement of families, but still the marriage is regarded as a serious affair by the parents and  families do not involve much with the couples as the concept of live in relationship is more about exploring each other.

We can safely state that relationships have become a questionable and complex thing to understand. Marriage is also required by the society however the modern generation is busy finding the suitable ways to safeguard their relationship by entering into various test-run techniques. It has become a trend in big cities.

FORCE MAJEURE EFFECTS ON THE BUSINESS

HOW WILL FORCE MAJEURE EFFECT THE BUSINESSES ALL AROUND THE WORLD DURING COVID-19 ?

Force majeure refers to a contractual provision that limits liability due to unforeseen events outside the control of the parties that delay performance of the contract or prevent performance entirely. A force majeure provision excuses performance based upon the occurrence of specific qualifying events that constitute force majeure or that fall within the purview of a broader “catch-all” category of events that may qualify as force majeure events. These may include “acts of God,” war, fire, national emergencies, labor strikes, diseases, pandemics, epidemics, natural disasters, governmental acts or regulations, and other “acts beyond the control” of the parties.

In light of the novel Coronavirus (COVID-19) pandemic, many businesses are confronting circumstances that may excuse or delay their obligations to perform under existing contracts due to the occurrence of a force majeure event. Governments and businesses have implemented measures to prevent or curtail the spread of the virus in the form of travel bans, border closures, restrictions on gathering sizes, closure of non-essential stores and businesses, cancelation of public events and other similar measures. The current and evolving restrictions designed to prevent the spread of COVID-19 may make it impossible to timely perform under the contract. Consequently, many businesses are simply unable to perform their contractual obligations. Some have invoked force majeure to eliminate or limit liability due to their inability to perform such contractual obligations. Similarly, some companies have cancelled various contracts for goods and services in light of travel restrictions and other limitations. The extent to which COVID-19 and its downstream effects and consequences constitute a qualifying force majeure event is highly fact-specific and depends on the terms of the contract, the specific facts, governing law and how courts in the relevant jurisdictions interpret force majeure provisions, among other things. With no force majeure clause it will be more difficult to claim relief. This means that the person who cannot fulfill the contract could be in breach of contract. If the contract has no force majeure clause then frustration may apply.  Even if a contract does not have a specific force majeure provision, applicable law may allow a party to excuse performance under other theories in the face of unexpected events.

COVID-19 does not itself usually stop a contract being fulfilled. It is the consequences of COVID-19 which causes problems. For many contracts entered into before January 2020 then COVID-19 issues could not have been anticipated. But it would be more difficult to claim that COVID-19 issues could not have been anticipated for a contract entered into mid-March 2020. This is important as if COVID-19 issues could reasonably have been anticipated, then relief for force majeure is probably not available. Although COVID-19 is almost certainly for most contracts an event outside the reasonable control of a party that is not enough. COVID-19 itself will probably not hinder performance; it is the consequences that matter. A government decree which is legally binding ordering a factory shut is almost certainly for a pre-2020 contract an event outside the reasonable control of the parties.

JURISDICTION OF SUPREME COURT

Supreme Court of India has original, appellate, writ and advisory jurisdiction

Original Jurisdiction

 As per article 32, Supreme Court is the guardian / protector of fundamental rights and any person whose fundamental rights are violated can directly approach the Supreme Court for remedy. Supreme Court has from time to time interpreted the fundamental rights and has protected the Citizens of India from any unconstitutional legislation which breech their fundamental rights. Any matter regarding the enforcement of Fundamental Rights comes under the Original Jurisdiction of the Supreme Court. Apart from this, Supreme Court is the Highest Interpreter of the Constitution and tribunal for final settlements of the disputes between Center and States as well as States and States. Supreme Court has original original Jurisdiction in matters related any dispute between:

  • Government of India and one or more states
  • Government of India and State(s) on one side and State(s) in other side
  • State(s) and State(s)

The dispute should involve a question whether of law or fact on which depends existence of a legal right which the court is called upon to determine.

Appellate Jurisdiction

Supreme Court is the Highest Court of appeal and the writs and decrees of Supreme Court run throughout the country. The cases come to the Supreme Court in the form of appeals against the judgments of the lower courts and this is called appellate jurisdiction. Appellate jurisdiction involves the Constitution, Civil and criminal matters. An appeal can be made in the Supreme Court against any judgment, decree or final order of the High Court in the territory of India, whether in a civil criminal or other proceedings, if the High Court Certified that the case involves a substantial question of law as to the interpretation of the Constitution. Even of the High Court refuses to give such certificate , the Supreme Supreme Court can grant special leave to appeal if the court is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution. In every matter that involves the interpretation of the constitution whether, civil, criminal or any other proceeding, the Supreme Court has been made the final authority to elaborate the meaning and intent of the Constitution.

 As far as criminal cases are concerned there are 3 situations in which criminal appeals in Supreme Court are permitted: (Article 134)

  • The High Court has on appeal reverse the order of acquittal of accused person and sentenced him to death.
  • The High Court has withdrawn for trial before itself any case from any subordinate court and such trial convicted the accused person and sentenced him to death.
  • High Court certifies that the case is worth appeal to the Supreme Court.

ADVISORY JURISDICTION

Article 143 (Power of President to consult Supreme Court) discusses the advisory jurisdiction of the Supreme Court.

  • If the president feels that a question of law or fact has arisen or is likely to arise and the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he can refer the same to Supreme Court for its advisory Opinion.
  • Such an opinion is NOT binding on the president.

Can Supreme Court overrule its own verdicts?

It is said that the Lower court is concerned with the facts and High Court with the error of the judgment of the lower court. The Supreme Court is concerned with wisdom. But the Supreme Court may also go wrong and such wrongs can be rectified. Article 137 of the Constitution provides that Supreme Court can review and revise its own orders.