ORIGIN OF STATE AND LAW:
Men desire absolute and unlimited freedom. In fact it is one of the basic instincts of human being to acquire control over men and material. However, the similar and equally powerful instinct on part of his fellow human beings is a great hindrance to enjoy freedom absolutely and without any limitations. Furthermore, the dangers that nature offer coupled with compelling necessity of organized life by man to have minimum secured life made it imperative for him to live with his fellow human beings and establish society.
Men in order to ensure social cohesion amongst members of society on proper lines after due consideration of human instincts like sex, love, possession tied up people with certain bonds and links in the name of tribe, family, lineage, kinship etc.,. Further to ensure perfect and effective operation of these links and bonds, he attached certain values ideas and beliefs either in the name of religion or customs. In ancient times when contact with members outside the community is minimum these values and community customs used to work out well and ensured peaceful co-existence. However, the rapid advancement made in the field of science and technology greatly weakened social solidarity of societies as such custom and community values role in safeguarding rights of weak became out-dated. However, it doesn’t weakened interdependence of one person over other and rather it enhanced in geometric proportion, though in a different form and scale. The net result is organization of people under a roof called nation states from the primitive tribe. The modern states tied up relationship between state and people and inter-se in the name of law replacing values and custom. Therefore, there necessitated an organized legal system to protect the rights of man for due discharge of state’s duties. Perhaps, for this reason only Sir John Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice”.
The above referred idea about origin of society or state is called as theory of Social contract. The Prominent political thinkers who advanced this theory are: Thomas Hobbes, Rousseau, John Locke, and John Rawls. The theme of their opinion is that individuals are self-interested. However, to protect themselves from each other and to create rules of the game that ensure the ability to live together in peace and harmony they created society. Thus, by sacrificing some of their liberty, they obtain greater liberty than they could have ever known in the state of nature. It is also widely accepted by many Nations. The Magna Carta of British which guarantees certain rights to citizens and American Declaration of rights of man, 1789 stand as true testimonies for acceptante of this theory about origin of society and state. In foregoing chapters we study certain core general principles of law on which legal system is constructed so as to translate the promise made by state to its citizens and persons.
OPERATIVE TOOLS OF LAW:
Rights and Duties: Bentham who is the forerunner of Analytical School of thought states that the relationship between State and its subjects and inter-se is governed by rules of rights and duties. Right means advantages, benefits a person can enjoy. Obligations on the contrary are duties or charges imposed on a person, who is under the obligation to full-fill them.
The synonyms of right are: Liberty, Power, Privilege, and Immunity.
The synonyms of duty are: Liability, Disability, no right.
Rights and obligations though distinct and opposite, they are no manner different as one cannot exist without other. They are simultaneously same in origin. There cannot be a right without there being corresponding obligation one another. However, it is expressed as right at one place and duty at another place basing on the context. To illustrate, a person in settled peaceful possession of property has every right to continued to be in possession of the property without the interference of another and there is an obligation on the whole world to respect the same. If we read the same from penal law perspective, it can be said that no one shall commit trespass into possession of property in the hands of another. Thus penal law converts obligation on part of individual into offences. Penal law creates an offence either by way of positive command or by a prohibition. Thus civil law is in fact only another aspect of penal law and to establish right means prohibition on another and vice-versa. To put straight, law is either rights or obligation or both. Infact all modern legal systems are constructed on the edifice of this principle only.
Now the question is what is the meaning of term right? It means something that is due to a person or governmental body by law, tradition, or nature.
According to Salmond: “A legal right is an interest recognised and protected by a rule of legal Justice – an interest the violation of which would be a legal wrong done to whom whose interest it is and respect for which is a legal duty”
According to Holland: “A right means a capacity residing in one man of controlling with the assent and assistance of the state the acts of the other”
According to Ihering such of those interests that have gained legal protection can be regarded as legal rights.
In strict sense – legal rights are correlatives of legal duties – interests which law protects by imposing duties on others.
In essence right refers to something which others are due to a person and it is a claim recognized by state and enforced through process of law. It can also be said that to call something as right there should be a remedy. Otherwise, it is not a right. Ubi jus, ibi remedium – The maxim was first recorded in the laws of England some 700 years ago by King Edward I.
In this connection it must also be mentioned that violation of right is the only pre-condition to seek for redressal of court but not quantum of damage sustained. This concept is explained through two following legal maxims: Injuria Sine Damno and Damnum sine Injuria.
Injuria Sine Damno: Plaintiff can sustain a legal action for the infringement of his legal right even though he didn’t suffer any loss or damage. Ashby v. White (1702) 2LD Raym 938. Plaintiff is a legally qualified voter. The defendant, returning officer, maliciously prevented the plaintiff to exercise his franchise. The plaintiff sued the defendant even though the candidate, to whom he intended to vote, was declared elected. Holt C.J held the defendant liable on the ground that the plaintiff’s legal right was infringed.
Damnum sine Injuria: Mere sustenance of loss or damage by plaintiff doesn’t give rise to cause of action if there is no infringement of legal right. The important case law in this context is:
Gloucestor Grammar School Case: In this case, the defendant started a school and collected reduced fee from students. As a result, the students in plaintiff’s school transferred to defendant’s school. Consequently, the plaintiff suffered loss and sued the defendant. Hankford J. held that plaintiff’s suit is not actionable on the ground that his legal right is not infringed by the defendant.
| Decree: – means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;
Facts in issue:- The expression “facts in issue” means and includes– any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Burden of proof:-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
S.13. Facts relevant when right or custom is in question:-Where the question is as to the existence of any right or custom, the following facts are relevant:- (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence: (b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
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It is evident from above discussion one can seek the aid of court only if there is an invasion or threat to invasion of right guaranteed by law. Therefore a robust understanding of some of the most basic and relevant rights is very much necessary. In fact under law we basically study about legal rights under substantive law. These rights can also be classified into following heads:-
1) Fundamental rights 2) Public rights
3) Personal rights 4) Customary rights 5) Contractual rights
Remedies: Any person who’s right is violated or who has an apprehension that his right may be violated can approach the court to protect his right or to prevent its violation or for remedy provided under law for its violation. The Law basing on the kind and nature of violation of legal right sets-out certain remedial measures. It must be mentioned that in democracy wedded with rule of law aggrieved or victim upon violation of his rights can’t demand for enforcement of a remedy which is not recognized by law. To put straight one cannot demand a remedy from court which he opines correct. Ex: If eye is lost due to action of hurt, victim can’t demand removal of eye of the accused unless it is recognized by law.The following are the major remedial measures provided under various laws.
Constitution provides following kinds of remedial measures for protection or enforcement of violated fundamental rights. They are:
a) Habeas Corpus b) Quo Warranto c) Mandamus d) Certiorari (e) Prohibition.
Specific relief Act,1963 provides following remedial measures for protection or enforcement of violated of Civil rights:-
(a) Specific performance (b) Injunction (c) Declaration (d) Recovery of possession (e) Cancellation (f) Recession.
The other reliefs available under Civil law are:
(a) Damages (b) Maintenance (c) Mesne profits (d) Partition (e) Grant of succession certificate.
Indian Penal code and other penal laws provide followings kinds of remedial measures for violations duties prescribed under them. It is also known as punishment. a) Death, b) Imprisonment for life, c) Imprisonment, which is of two descriptions, namely:— (1) Rigorous, that is, with hard labour; (2) Simple; d) Forfeiture of property; e) Fine. Court can also award compensation.
Redressal of right:
The Court in order to grant any remedy, it is necessary for it to ascertain the existence of such right which is being claimed. As such, it is imperative for court to follow uniform and effective procedure for ascertain the existence of such right and enforce the remedy in the event of allowing the claim. Thus apart from right and remedy, the procedure for reporting the grievance and its adjudication, enforcement is also equally important. In order to look after these affairs basing upon kind, nature of right and remedy sought for certain laws are enacted. These laws are called procedural laws. Some of the most important procedural laws are:
(a) Constitution of India and Writ rules
(b) Civil Procedure Code and Civil rules of Practice,
(c) Criminal Procedure Code and Criminal rules of Practice
(d) Limitation Act
(e) Suit Valuation and Court Fee Law
(f) Stamp and Registration Law
(g) Indian Evidence Act
(h) Legal Services Authority
(i) Arbitration and Conciliation Act 1996
(k) Consumer Protection Act.
In a Democracy wedded with rule of law the concept of fairness must embrace in every action of state both apparently and inherently including especially in adjudicating a claim which has large scale implications on the lives of citizens. Therefore, based on above public policy considerations and administrative convenience or limitations of adjudicatory forums following principles or rules are scaled out and organized accordingly with the aid of above mentioned laws. In fact these fundamental principles on which any civilized adjudicatory forum operate. The principles are:
1) Principle of Locus standi,
2) Resjudicata, Admissions, Estoppel,
3) Jurisdiction,
4) Law of Limitation,
5) Stamp Act and Registration Act,
6) Suit Valuation and Court Fee Law,
7) Principles of Pleadings,
8) Summons,
9) Fixing up disputed question,
10) Recording of evidence,
11) Arguments
12) Adjudicating claim or judgment,
13) Appeal, Enforcement of judgment.
The following are the major dispute resolution mechanisms wherein we find the operation of these principles with minor variations here and there:
- WRIT court
- Civil Court
- Criminal Court
- Legal Service Authority
- Mediation and Arbitration forum
- Consumer Tribunal
- Endowments Tribunal
- Family court
- Administrative Tribunal 10. Arbitration