THE RIGHT TO INFORMATION (AMENDMENT) BILL, 2013

THE RIGHT TO INFORMATION (AMENDMENT) BILL, 2013

 A BILL to amend the Right to Information Act, 2005.

BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:—

1. (1) This Act may be called the Right to Information (Amendment) Act, 2013.

 (2) It shall be deemed to have come into force on the 3rd day of June, 2013.

2. In section 2 of the Right to Information Act, 2005 (hereinafter referred to as the principal Act), in clause (h), the following Explanation shall be inserted, namely:––

 ‘Explanation.––The expression “authority or body or institution of self government established or constituted” by any law made by Parliament shall not include any association or body of individuals registered or recognised as political party under the Representation of the People Act, 1951.

 3. After section 31 of the principal Act, the following section shall be inserted, namely:—

 “32. Notwithstanding anything contained in any judgment, decree or order of any court or commission, the provisions of this Act, as amended by the Right to Information (Amendment) Act, 2013, shall have effect and shall be deemed always to have effect, in the case of any association or body of individuals registered or recognised as political party under the Representation of the People Act, 1951 or any other law for the time being in force and the rules made or notifications issued thereunder.”.

STATEMENT OF OBJECTS AND REASONS

 The Right to Information Act, 2005 was enacted by the Government for setting out a framework for effectuating the right to information for citizens and to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.

 2. The Central Information Commission in one of its decision dated 03.06.2013 has held that the political parties namely AICC/INC, BJP, CPI (M), CPI, NCP and BSP are public authorities under section 2(h) of the said Act. The Government considers that the CIC has made a liberal interpretation of section 2(h) of the said Act in its decision. The political parties are neither established nor constituted by or under the Constitution or by any other law made by Parliament. Rather, they are registered or recognised under the Representation of the People Act, 1951 and the rules/orders made or issued thereunder.

 3. It has also been observed that there are already provisions in the Representation of the People Act, 1951 as well as in the Income-tax Act, 1961 which deals with the transparency in the financial aspects of political parties and their candidates.

 4. Declaring a political party as public authority under the RTI Act would hamper its smooth internal working, which is not the objective of the said Act and was not envisaged by Parliament under the RTI Act. Further, the political rivals may misuse the provisions of RTI Act, thereby adversely affecting the functioning of the political parties.

 5. In view of above, the Government has decided to amend the RTI Act to keep the political parties out of the purview of the RTI Act, with a view to remove the adverse effects of the said decision of the CIC. It is also necessary to give retrospective effect to the proposed amendment with effect from the date of the said decision of CIC, that is, 3rd day of June, 2013.

 6. The Bill seeks to achieve the above objects.

 V. NARAYANASAMY NEW DELHI;

The 5th August, 2013.

ANNEXURE EXTRACT FROM THE RIGHT TO INFORMATION ACT, 2005

( 22 OF 2005)

* * * * * 2. In this Act, unless the context otherwise requires, — * * * * *

(h) “public authority” means any authority or body or institution or self-government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

 (c) by any other law made by State Legislature;

 (d) by notification issued or order made by the appropriate Government, and includes any—

(i) body owned, controlled or substantially financed;

 (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

Discuss the principles of Constitutional Interpretation. Explain

Discuss the principles of Constitutional Interpretation. Explain, "In the interpretation of constitution, the judicial approach should be dynamic than static, pragmatic than pedantic, and elastic than rigid". Describe -  Harmonious Construction, Doctrine of Pith and Substance, Colourable Legislation, Proviso, Doctrine of Eclipse, Principle of separation. What is the proper function of a proviso? Can it affect the enacting portion of a section as well?

Introduction

Constitution is the supreme and fundamental law of our country. Since it is written in the form of a statute, the general principles of statutory interpretation are applicable to interpretation of the constitution as well. As is the case with any other statute, the court tries to find out the intention of the framers of the constitution from the words used by them. For example, in the case of State of Bihar vs Kameshwar Singh AIR 1952, SC used one of the standard principles of interpretation that where more than one reasonable interpretation of a constitutional provision are possible, that which would ensure a smooth and harmonious working of the constitution shall be accepted rather than the one that would lead to absurdity or give rise to practical inconvenience, or make well existing provisions of existing law nugatory, while interpreting the constitution.However, even if an argument based on the spirit of the constitution is very attractive, it must be validated with the spirit of the constitution as reflected by the words of the constitution. In the same case mentioned above, SC observed that spirit of the constitution cannot prevail if the language of the constitution does not support that view.

It is important to note that the constitution itself endorses the general principles of interpretation through Article 367(1), which states that unless the context otherwise requires, the General Clauses Act, 1897 shall apply for the interpretation of this constitution as it applies for the interpretation of an act of the legislature. Courts have ruled in cases such as Jugmendar Das vs State 1951, that not only the general definitions given in General Clauses Act, but also the general rules of construction given therein are applicable to the constitution.

Having said the above, the fact remains that Constitution is a special act. It is a fact that every provision of the constitution is constitutional and no part of it can be held unconstitutional. This casts an important duty on the interpreters of the constitution to interpret its provisions such that the spirit of the constitution is not maligned.  In Keshvananda Bharati vs State of Kerala, AIR 1973, SC identified the basic structure of the constitution that reflects its true spirit and held that nothing that hurts the basic structure of the constitution, is constitutional. In the same case, SC held that one should give the freedom to the parliament to enact laws that ensure that the blessings of liberty be shared with all, but within the framework of the constitution. It is necessary towards that end that the constitution should not be construed in a narrow and pedantic sense.

The letters of the constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic. To ensure that the new laws are consistent with the basic structure of the constitution, the constitution must be interpreted in broad and liberal manner giving affect to all its parts and the presumption must be that no conflict or repugnancy was intended by its framers. Applying the same logic, the provisions relating to fundamental rights have been interpreted broadly and liberally in favor of the subject. Similarly, various legislative entries mentioned in the Union, State, and Concurrent list have been construed liberally and widely.

The following are some of the key principles applied specially in interpreting the provisions of the constitution -

Principle of Harmonious construction

Doctrine of pith and substance

Doctrine of Colourable legislation

Principle of Ancillary powers

Principle of Occupied field

Residuary power

Doctrine of repugnancy

Principle of Territorial Nexus

Doctrine of stare decisis

Doctrine of prospective overruling

Principle of Harmonious Construction

The principle of harmonious interpretation is similar to the idea of broad or purposive approach. The key to this method of constitutional interpretation is that provisions of the Constitution should be harmoniously interpreted. As per Kelly:

“Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme. When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort.

This principle is illustrated in the case of Raj Krishna vs Binod AIR 1954. In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict were brought forth. Section 33 (2) says that a Government Servant can nominate or second a person in election but section 123(8) says that a Government Servant cannot assist any candidate in election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a Government Servant was entitled to nominate or second a candidate seeking election in State Legislative assembly. This harmony can only be achieved if Section 123(8) is interpreted as giving the govt. servant the right to vote as well as to nominate or second a candidate and forbidding him to assist the candidate it any other manner.

Upon looking at various cases, the following important aspects of this principle are evident -

The courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.

The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences.

When it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such as way so that effect is given to both the provisions as much as possible.

Courts must also keep in mind that interpretation that reduces one provision to a useless number or a dead lumbar, is not harmonious construction.

To harmonize is not to destroy any statutory provision or to render it otiose.

Doctrine of Pith and Substance

Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list. The case of State of Maharashtra vs F N Balsara AIR 1951 illustrates this principle very nicely. In this case, the State of Maharashtra passed Bombay Prohibition Act that prohibited the sale and storage of liquor. This affected the business of the appellant who used to import liquor. He challenged the act on the ground that import and export are the subjects that belong in Union list and state is incapable of making any laws regarding it. SC rejected this argument and held that the true nature of the act is prohibition of alcohol in the state and this subject belongs to the State list. The court looks at the true character and nature of the act having regard to the purpose, scope, objective, and the effects of its provisions. Therefore, the fact that the act superficially touches on import of alcohol does not make it invalid.

Thus, as held in State of W Bengal vs Kesoram Industries, 2004, the courts have to ignore the name given to the act by the legislature and must also disregard the incidental and superficial encroachments of the act and has to see where the impact of the legislation falls. It must then decide the constitutionality of the act.

Principle of Incidental or Ancillary Powers

This principle is an addition to the doctrine of Pith and Substance. What it means is that the power to legislate on a subject also includes power to legislate on ancillary matters that are reasonably connected to that subject. It is not always sufficient to determine the constitutionality of  an act by just looking at the pith and substance of the act. In such cases, it has to be seen whether the matter referred in the act is essential to give affect to the main subject of the act. For example, power to impose tax would include the power to search and seizure to prevent the evasion of that tax. Similarly, the power to legislate on Land reforms includes the power to legislate on mortgage of the land. However, power relating to banking cannot be extended to include power relating to non-banking entities. However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For example, power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the lists.

As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic.

The underlying idea behind this principle is that the grant of power includes everything necessary to exercise that power. However, this does not mean that the scope of the power can be extended to any unreasonable extent. Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation

This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a round about manner is also unconstitutional. This doctrine is found on the wider doctrine of "fraud on the constitution". A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.  K C Gajapati Narayan Deo vs State of Orissa, AIR 1953 is a famous case that illustrates the applicability of this doctrine. In this case, SC observed that the constitution has clearly distributed the legislative powers to various bodies, which have to act within their respective spheres. These limitations are marked by specific legislatives entries or in some cases these limitations are imposed in the form of fundamental rights of the constitution. Question may arise whether while enacting any provision such limits have been transgressed or not. Such transgression may be patent, manifest or direct. But it may also be covert, disguised, or indirect. It is to this later class of transgression that the doctrine of colourable legislation applies. In such case, although the legislation purports to act within the limits of its powers, yet in substance and in reality, it transgresses those powers. The transgression is veiled by mere pretense or disguise. But the legislature cannot be allowed to violate the constitutional prohibition by an indirect method. In this case, the validity of Orissa Agricultural Income Tax (Amendment) Act 1950 was in question. The argument was that it was not a bona fide taxation law but a colourable legislation whose main motive was to artificially lower the income of the intermediaries so that the state has to pay less compensation to them under Orissa Estates Abolition Act, 1952. SC held that it was not colourable legislation because the state was well within its power to set the taxes, no matter how unjust it was. The state is also empowered to adopt any method of compensation. The motive of the legislature in enacting a law is totally irrelevant.

A contrasting case is of K T Moopil Nair vs State of Kerala, AIR 1961. In this case, the state imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high that it was many times the annual income that the person was earning from the land. The SC held the act as violative of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a person's property was being confiscated.

Similarly, in Balaji vs State of Mysore, AIR 1963, SC held that the order reserving 68% of the seats for students belonging to backward classes was violative of Article 14 in disguise of making a provision under Article 15(4).

What do you understand by Strict Construction

Q. What do you understand by Strict Construction? If there is an ambiguity in a word in a penal statute, what interpretation should be given and why? Explain why a taxing statute should be strictly constructed?

Strict Construction
Strict construction refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. Strict construction requires the court to apply the text as it is written and no further, once the meaning of the text has been ascertained. That is, court should avoid drawing inference from a statute or constitution. It is important to note that court may make a construction only if the language is ambiguous or unclear. If the language is plain and clear, a judge must apply the plain meaning of the language and cannot consider other evidence that would change the meaning. If, however, the court finds that the words produce absurdity, ambiguity, or a literalness never intended, the plain meaning does not apply and a construction may be made. Strict construction occurs when ambiguous language is given its exact and technical meaning, and no other equitable considerations or reasonable implications are made. Strict construction is the opposite of liberal construction, which permits a term to be reasonably and fairly evaluated so as to implement the object and purpose of the document.

Applicability in Penal Statutes
A Penal Statute must be constructed strictly. This means that a criminal statute may not be enlarged by implication or intent beyond the fair meaning of the language used or the meaning that is reasonably justified by its terms. It is fundamentally important in a free and just society that Law must be readily ascertainable and reasonably clear otherwise it is oppressive and deprives the citizen of one of his basic rights. An imprecise law can cause unjustified convictions because it would not be possible for the accused to defend himself against uncertainties. Therefore, an accused can be punished only if his act falls clearly into the four corners of the law without resorting to any special meaning or interpretation of the law. For example, in Seksaria Cotton Mills vs State of Bombay, 1954, SC held that in a penal statute, it is the duty of the Courts to interpret the words of ambiguous meaning in a broad and liberal sense so that they do not become traps for honest unlearned and unwary men. If there is honest and substantial compliance with an array of puzzling directions that should be enough, even if on some hyper critical view of the law other ingenious meanings can be devised.

If a penal provision is capable of two reasonably possible constructions, then the one that exempts the accused from penalty must be used rather than the one that does not. Whether a particular construction achieves the intention of the statute or not is not up to the court to think about in case of penal statutes. It is not apt for the court to extend the scope of a mischief and to enlarge the penalty. It is not competent for the court to extend the meaning of the words to achieve the intention of the legislature. If a penal provision allows accused to go scot-free because of ambiguity of the law, then it is the duty of the legislature and not of the courts to fix the law. Unless the words of a statute clearly make an act criminal, it cannot be construed as criminal. Chinubhai vs State of Bombay, AIR 1960, is an important case in this respect. In this case, several workers in a factory died by inhaling poisonous gas when they entered into a pit in the factory premises to stop the leakage of the gas from a machine. The question was whether the employer violated section 3 of the Factories Act, which says that no person in any factory shall be permitted to enter any confined space in which dangerous fumes are likely to be present. The Supreme Court, while construing the provision strictly, held that the section does not impose an absolute duty on the employer to prevent workers from going into such area. It further observed that the fact that some workers were present in the confined space does not prove that the employer permitted them to go there. The prosecution must first prove that the workers were permitted to enter the space to convict the accused.


Applicability in Taxing Statutes
Tax is the money collected from the people for the purposes of public works. It is a source of revenue for the government. It is the right of the govt to collect tax according to the provisions of the law. No tax can be levied or collected except by the authority of law. In general, legislature enjoys wide discretion in the matter of taxing statutes as long as it satisfies the fundamental principle of classification as enshrined in Article 14. A person cannot be taxed unless the language of the statute unambiguously imposes the obligation without straining itself. In that sense, there is no reason why a taxing statute must be interpreted any differently from any other kind of statute. Indeed, SC, in the case of CIT vs Shahazada Nand and Sons, 1966, observed that the underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than any notions which be entertained by the Courts as to what is just or expedient. In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.

Lord Russel in Attorney General vs Calton Ban, 1989, illustrated categorically as, "I see no reason why special canons of construction should be applied to any act of parliament and I know of no authority for saying that a taxing statute is to be construed differently from any other act."

However, as with any statute, a fiscal or taxing statute is also susceptible to human errors and impreciseness of the language. This may cause ambiguity or vagueness in its provisions. It is in such cases, the task of constructing a statute becomes open to various methods of construction. Since a person is compulsorily parted from his money due to tax, imposition of a tax is considered a type of imposition of a penalty, which can be imposed only if the language of the provision unequivocally says so. This means that a taxing statute must be strictly constructed. The principle of strict interpretation of taxing statutes was best enunciated by Rowlatt J. in his classic statement in Cape Brandy Syndicate v I.R.C. - "In a taxing statute one has to look merely at what is clearly said. There is no room for any intention. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can look fairly at the language used." If by any reasonable meaning of the words, it is possible to avoid the tax, then that meaning must be chosen. There is no scope for any inference or induction in constructing a taxing statute. There is no room for suppositions as to “spirit” of the law or by way of “inference”. When the provision is reasonably open to only one meaning then it is not open to restrictive construction on the ground that the levy of tax, is oppressive , disproportionate, unreasonable or would cause hardship. There is no room for such speculation. The language must be explicit. Similarly, penalty provision in a taxing statute has to be specifically provided and cannot be inferred.

In A. V. Fernandes vs State of Kerala, AIR 1957, the Supreme Court stated the principle that if the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case does not fall within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter.

This does not mean that equity and taxation are complete strangers. For example, in the case of CIT vs J H Kotla Yadgiri, 1985, SC held that since the income from business of wife or minor child is includable as income of the assessee, the profit or loss from such business should also be treated as the profit or loss from a businesss carried on by him for the purpose of carrying forward and set-off of the loss u/s. This interpretation was based on equity. However, it does not permit any one to take the benefit of an illegality. This is illustrated in the case of CIT vs Kurji Jinabhai Kotecha,AIR 1977, where Section .24(2) of IT Act was constructed as not to permit assessee to carry forward the loss of an illegal speculative business for setting it off against profits in subsequent years. This proves that even a taxing statute should be so construed as to be consistent with morality avoiding a a result that gives recognition to continued illegal activities or benefits attached to it.

The rule of strict construction applies primarily to charging provisions in a taxing statute and has no application to a provision not creating a charge but laying down machinery for its calculation or procedure for its collection. Thus, strict construction would not come in the way of requiring a person claiming an exemption. The provisions of exemptions are interpreted beneficially.

What do you understand by Beneficial Construction?

Q. What do you understand by Beneficial Construction? Explain the statement, "Beneficial construction is a tendency rather than a rule".

A general rule of interpretation is that if a word used in a statute excludes certain cases in its common meaning, it should not be constrained unnecessarily to include those cases. An exception to this rule is that when the objectives of the statute are not met by excluding the cases, then the word may be interpreted extensively so as to include those cases. However, when a word is ambiguous i.e. if it has multiple meanings, which meaning should be understood by that word? This is the predicament that is resolved by the principle of Beneficial Construction. When a statute is meant for the benefit of a particular class, and if a word in the statute is capable of two meanings, one which would preserve the benefits and one which would not, then the meaning that preserves the benefit must be adopted. It is important to note that omissions will not be supplied by the court. Only when multiple meanings are possible, can the court pick the beneficial one. Thus, where the court has to choose between a wider mean that carries out the objective of the legislature better and a narrow meaning, then it usually chooses the former. Similarly, when the language used by the legislature fails to achieve the objective of a statute, an extended meaning could be given to it to achieve that objective, if the language is fairly susceptible to the extended meaning. This is quite evident in the case of B Shah vs Presiding Officer, AIR 1978, where Section 5 of Maternity Benefits Act, 1961 was is question, where an expectant mother could take 12 weeks of maternity leave on full salary. In this case, a women who used to work 6 days a week was paid for only 6x12=72 days instead of 7x12=84 days. SC held that the words 12 weeks were capable of two meanings and one meaning was beneficial to the woman. Since it is a beneficial legislation, the meaning that gives more benefit to the woman must be used.


It is said by MAXWELL, that Beneficial Construction is a tendency and not a rule. The reason is that this principle is based on human tendency to be fair, accommodating, and just. Instead of restricting the people from getting the benefit of the statute, Court tends to include as many classes as it can while remaining faithful to the wordings of the statute. For example, in the case of Alembic Chemical Works vs Workmen AIR 1961, an industrial tribunal awarded more number of paid leaves to the workers than what Section 79(1) of Factories Act recommended. This was challenged by the appellant. SC held that the enactment being a welfare legislation for the workers, it had to be beneficially constructed in the favor of worker and thus, if the words are capable of two meanings, the one that gives benefit to the workers must be used.

Similarly, in U Unichoyi vs State of Kerala, 1963, the question was whether setting of a minimum wage through Minimum Wages Act, 1948 is violative of Article 19 (1) (g) of the constitution because the act did not define what is minimum wage and did not take into account the capacity of the employer to pay. It was held that the act is a beneficial legislation and it must be construed in favor of the worker. In an under developed country where unemployment is rampant, it is possible that workers may become ready to work for extremely low wages but that should not happen.

Circumstances affecting the Risk in Life Insurance

Circumstances affecting the Risk in Life Insurance Risk in life insurance is the risk of death at an early date due to disease or distinguished from accident In. Thomson vs. Weems 1884 9 AC 671,681 Lord Blackburn observed “Those whose business is to insure lives calculate on the average rate of mortality and charge a premium which on that average will prevent their being loses. a. Age of the proponent. b. His family history. c. Personal health d. Moral history including habits of life past and present. e. Geographical position & occupation Age of the Proponent Age is an important material fact in life insurance as the rate of premium depends on theage of the assured. Case law:-Alliance and strutgarter Vs. Hemantha Kumar AIR 1938 Cal 641 Once it is written Then it is admitted In case of M.K. Shah V. Yorkshire Insurance Co. AIR 1938 Bom 161 Once the age is admitted by the insurer then correctness of the age cannot be questioned unless the insurer can prove that his admission was procured by the fraud of the assured. {Section 45 of the Insurance Act 1938 says After 2 years company have no right to reopen the things.} The section generally provides that the correctness of a representation shall not be questioned by an insurer after two years but the proviso specifically makes an exception with reference to the representation of the age in a proposal form. • According to this the insurer is entitled to call for proof of the age from the assured at any time if the same had not been proved and admitted as true by an endorsement on the policy notwithstanding the fact that the requisition of the proof has been made by insurer after two years. • When once a date is given as date of birth and on subsequesnt verification after the issue of the policy the date is found to be wrong it may result in either Overstatement of Age :---------- Overage Understatement of Age:---------Underage In either case the original representation becomes a misrepresentation, but effect on the validity of the policy is different.  If it is overstatement:- it is considered to be an innocent misrepresentation as it will be against the interest of the maker and so in such cases the validity of the policy is not affected. In such cases if the insurer accepts the proof of age, he can be compelled to refund the excess payment towards the premium and to adjust the rate for future payment according to the proved age.  But when it turns out to be an understatement of age, if is proved gross understatement or is proved to have been made willfully, it amounts to fraud and the policy become voidable. 1. The sum assured may be reduced to such amount 2. The assured may be required if he wants to continue the policy for the entire insured amount to pay the difference of premium with interest. Hemmin’s v/s Scetore (1905) ch 365 Misstated age as 41 years through in fact she was at that time forty-four years, of age. This fact was brought to notice of the insurers in 1997 and inspite of that the insurers accepted the premiums for two subsequent year later they demanded form the assignee a highter rate of premium ande also the difference of premiums accumulate to date at the revised rate premium and the insurers refused to receive the same. If after becoming acquainted with a breach of warranty the office continue to treat the policy as valid it will be held to have waived the breach. Family History The risk in life policies the assured and heredity throws sufficient light and play an important role in the determination or the probable longevity of a person. In Asia Assurance Company V/s Kartiya Devi 1936 Cal 437 The total numbers of bothers and sisters had to be filled in one column and the actual number alive in another column. The assured filled the first column but left the other b lank. It was helf that answer amounted to suppression of truth and hence amounted to misrepresentation and the policy was void. Personal Health and Moral History The habits of life, past and present and which tend to shorten the life must be disclosed ,e.g. the use of opium, tobacco or alcohol. • The present state of health is important. • The past illness also become important • Regulat habits regarding food, sleep etc. tend to increase the longevity. Geographical Position The place where the applicant lives is important as climate and environment have an appreciable effect on one’s health. Unhealthy surrounding have a tendency to shorten the life. Further, the particular, place may be subject to earthquake, volcanoes and floods. Huguenin v/s Rayley Where the assured gave his residential address but actually he was not there at that time. It was held that the omission of this fact was fatal to the policy and the insurance company was not liable. Occupation If it is a dangerous occupation like a soldier, sailor, airman or workman in an ammunition factory the insurers charge a higher rate of premium.

Community and Law

III. Community and Law:-

Community means the people living in one particular area of people who are considered as a unit
because of their common interest, background of nationality.  India is one community, so law made
in the territory of India shall be uniform, without any discrimination.  In this regard, our constitution
has guaranteed many rights.  There is provision for single citizenship in India    which focuses that
India is one community only; there is no scope for any discrimination.  This non-discrimination is not
absolute, but provided with some exceptions.

1. Non-discrimination:- The preamble of the constitution sets that the goal of the constitution and
secure to all citizens equality: (i) of status (ii) of opportunity; and (iii) to promote among them all
justice, liberty, equality and fraternity.  The goal  set by preamble is extended by Articles 14 to
18 of the Constitution.  Art. 14 provides for equality before law and equal protections of the
laws. Art. 15 provides for prohibition of discrimination on grounds of religion, race, case, sex or
place of birth. Art. 16 provides for equality of opportunity in matters of public employment, Art.
17 provides for abolition of untouchability.
2. Reservation for rural area is unconstitutional:- Reservation for candidates coming from rural
area is unconstitutional but for those who come from Hills and Uttarakhand area is valid. It was
observed by the Supreme Court that these  areas were instances of socially and educationally
backward class citizens.
3. No advantage of reservation on conversion to non-reserved class:-The Supreme Court has held
that the advantage of reservation to any reserved class person will not be available on
conversion to non-reserved class.
4. No reservation on basis of domicile:- The Constitutional Bench of the Supreme Court has held
that reservation on the basis of domicile is not permissible in terms of Art. 15(1) of the
Constitution as there does not exist any separate State domicile in India, Supreme Court has
specifically banished residential requirement for purpose of admission into PG medical courses
for all times. (Saurab Chaudri vs. UOI (2003) 

SIR HENRY MAINE'S LEGAL THEORY

·         SIR HENRY MAINE (1822 – 1888) :    

Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord Bryce & many others who made studies of various legal systems on historical lines.  Maine published his first work ‘Ancient Law’ in 1861.  This is considered to be the manifesto of his lifework in which he stated his general doctrines.  He also wrote Village Communities (1871), Early History of Institutions (1875) & Dissertations of Early Law and Custom (1883).  He was law member in the Council of the Governor–General of India b/w 1861 & 1869, which provided him an opportunity for the study of Indian legal system.

Maine inaugurated both comparative & anthropological approaches to the study of law.  Unlike Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the Volksgeist & he used the study of legal history mostly to understand the past & not to determine the future course & standards.

Maine classified the development of law in the following stages : 

(i)       In the beginning, law was made by the commands of the ruler believed to be acting under the divine inspiration, e.g., Themistes of ancient Greek.  When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration.  The king was not the maker of law, but merely an executor of judgments of the God.

(ii)      In the second stage, the commands crystallise into customary law.  Customs seem to have succeeded to the prerogatives of the king.  Hwr, they don’t appear to hv pretended to direct inspiration for each sentence & the progress of thought no longer permits the solution of a particular dispute to be explained by supposing an extra–human interposition.

(iii)     In the third stage, the knowledge & administration of customs goes into the hands of a minority, due to the weakening of the power of the original law-makers, usually of a religious nature, e.g. priests.  The ruler is superseded by a minority who obtain control over the law.

(iv)     In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies :

The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of development.  The societies, which do not progress beyond the fourth stage & close the era of spontaneous legal development, r static societies.  The stationary/static societies don’t move forward beyond the era of the codes.

The societies, which go on developing their law by new methods, r called progressive societies.  They develop their law with the help of three instruments / methods, namely, legal fiction, equity & legislation, in order to make law harmonious to social needs & change.

(i)       By use of legal fictions, law is altered to changing needs of the society, while it is pretended that it remains what it was.  Thus, legal fictions change the law according to the changing needs of the society without making any change in the letter of law.  He thought fictions should be abandoned in a society because they made the law more difficult to understand & harmonise legal order.

(ii)      Equity is used to modify the law as a set of principles invested with higher sacredness than those of original law.  Equity came to remove the rigidity in law & to remove injustice, delay & other inconveniences.  According to Maine, equity is a body of rules existing by the side of the original civil law & founded on distinct principles.

(iii)     The final stage comes with the legislation, which is the last effective instrumentality of quick social reform.  Law can be enacted by explicit declarations of intention incorporated in the language of legal enactments.  Maine regarded it as the most desirable method of legal change.

In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is determined by status, i.e., his claims, duties, etc. are determined by law.  The march of progressive societies witnessed the disintegration of status & the determination of legal condition of the individual by free negotiation on his part.  The development of societies was summed up by Maine in the following famous phrase, “If we employ status to signify the conditions only & avoid applying the term to said conditions, we may say that the movement of the progressive societies has hitherto been a movement from status to contract”.

From a condition of society, in which all the relations of persons wr summed up in the relation of family, we seemed to hv steadily moved towards a phase of social order in which all these relations arose from free agreement of individuals.

According to Maine, status is a fixed condition in which an individual finds himself without reference to his will and of which he can’t divest himself by his own efforts.  The group, not the individual, is the primary unit of social life.   With the progress of civilisation, this condition gradually gives way to a social system based on contract.  This is the age of the standardised contract & of collective bargaining (trade unions, business associations, etc.).  Even the contracts, which an individual enters into in everyday life, have been standardised as contract for water, electricity or contract for a carriage with a railway company.  The freedom of contract is, thus, being curtailed every day.

Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age.  In India, the policy of ‘mixed economy’ has assumed greater control over individual liberty & freedom.  The State can impose reasonable restrictions in the interest of the public {Art. 19(6)}.  Pollock says that this theory is limited only to laws of property because personal relations like marriage, minor’s capacity, etc. are still matters of status & not of contract.

However, in one sense, Maine’s theory still holds good.  The trend of legislation in undeveloped or developing countries is to remove personal disabilities, which arise due to membership of a class (status).

On the whole, Maine presented a balanced view of history of law.  Savigny had explained the relation b/w community & law, but Maine went further & pointed out the link b/w the developments of both.  His conclusions are based on comparative study of different systems & hence their value is greater than other studies based on Roman Law exclusively.  Influenced Friedmann, Dicey, etc.

In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an important piece of comparative legal research to a legal theory inspired by principles of historical evolution.  His great contribution to legal theory specially lies in the combination of what is best in the theories of both Montesquieu & Savigny.  Maine’s theory avoids the danger of an excessive disintegration of theoretical laws of legal evolution.  It is also free from the abstract & unreal romanticism, unlike Savigny’s theory.

·         Difference b/w Historical & Analytical School :          

S.No.	Analytical School	Historical School
1.	Law is the command of the sovereign (created by sovereign).	Law is found & not made.
2.	Law is enforced by the sovereign.	Law is independent of political authority & its enforcement.
3.	Example of typical law is statute.  Custom isn’t law, until its validity has been established by a judicial decision/by an Act of legislature.	Example of typical law is custom.  Custom is law by itself.  It does not require State recognition to become a law.
4.	Force of politically organised society is the basis of law.	Law rests on the social pressure.
5.	Judges find themselves to interpretation of statute.	Judges to consider only history of legislation.
6.	Applicable to developed countries – matured legal systems.	Applicable to developing countries – primitive legal institutions of society.

HISTORICAL SCHOOL – SAVIGNY & MAINE

JOHN AUSTIN'S THEORY OF LAW AND POSITIVISM

JOHN AUSTIN

·         JOHN AUSTIN ( 1790 – 1859 ), who was a Prof. in London University, is the founder of the Analytical School.  He is considered as the Father of English Jurisprudence.  He was elected to the chair of Jurisprudence in the University of London in 1826.  Then he proceeded to Germany & devoted some time to the study of Roman Law.  Austin, a disciple of Bentham, is a positivist & concerned with ‘what law is’ & ‘not what law ought to be’.  ‘Positus’ means ‘as it is’.

The first six (6) lectures were published in 1832 under the title ‘The Province of Jurisprudence Determined’, while rest were published posthumously in 1861.  He avoided metaphysical method, which is a German characteristic.  The method, which Austin applied, is called analytical method & he confined his field of study only to ‘positive law’.  Therefore, the school founded by him is called by various names – ‘Analytical’, ‘Positivism’, & ‘Analytical Positivism’.  Prof. Allen thinks it proper to call the Austin’s school as ‘Imperative School’ on the basis of is conception of law, i.e., ‘Law is Command’. 

For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply & strictly so called’ or ‘law set by political superiors to political inferiors’.  He believed that ‘Law’ is only an aggregate of laws & defined ‘law’, “As a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.  To him, law is the command of a sovereign requiring his subjects to do or forbear from doing something.  There is an implied threat of ‘sanction’ if the command is not obeyed.

L A W

-----------------------------------------

Law properly so called               Law improperly so called

           -------------------------------                      --------------------------------

Law by God               Law by humans          Law by analogy          

or Divine Law               / Laws  set by                                     Law by metaphor

                                       men for men

          --------------------------------             

Law by political         Law  by  superiors     Law    of   fashion       All   the   laws

superiors       to         to   inferiors,   but     & public opinion,        of nature, i.e.,

political inferiors       the superiors r not     i.e., international       law of motion,

                                  political superiors     law,   customs   &      gravitation,

                                                                   traditions                    etc.

This is called

Positive Law                          --------------------------

                                               Positive   Morality

He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’.  The former r general commands addressed to the community at large & enjoined classes of acts & forbearance.  They r divided into laws set by God / divine law / law of God & laws set by men to men.  Laws set by men to men also fell into 2 categories – the first consisted of laws set by political superiors to political inferiors.  This was termed by Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject matter of jurisprudence.  Thus, law properly so-called must hv 3 elements– (i) command, (ii) sanction & (iii) sovereign.  The second category consisted of laws set by men to men neither as political superiors nor in pursuance of rights conferred upon them by such superiors, e.g., those set by a master to a servant or the rules of a club.  They r still laws properly so called because they r commands, but he distinguished them from positive law by giving them the term ‘positive morality’. 

Analogous to the laws of the latter class r a number of rules to which the name ‘laws improperly so called’ is given.  They are opinions or sentiments of an undeterminate body of men & laws of fashion or honour.  He places intl. law under this class.  In the same way, there r certain other rules which r called law metaphorically – laws of nature.  They are laws improperly so called.

‘Positive law’ (law simply & strictly so called or law set by political superiors to political inferiors) is the only proper subject matter of jurisprudence.  Jurisprudence is the general science of positive law. 

Laws properly so called are species of commands.  But being a command, it flows from a determinate source or emanates from a determinate author.  For whenever a command is expressed of intimated, one party signifies a wish that another shall do or forbear & the latter is obnoxious to an evil which the former intends to inflict in case the wish is disregarded.  The key to understanding law properly so called lies in duty which is created by the command of a sovereign.  Duty & sanction are correlative terms – whenever duty lies, a command has been signified & whenever a command is signified, a duty is imposed. 

In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which r inextricably linked & can’t be separated.  According to him, there r 3 kinds of laws, which, though not commands, r still within the province of jurisprudence:

(i)       Declaratory of Explanatory Laws : Austin does not regard them as commands because they r passed only to explain laws already in force, e.g., General Clauses Act.

(ii)      Laws to Repeal Laws : These too r not commands but r rather the revocation of a command.  They release from duties imposed by existing laws & r named permissive laws.

(iii)     Laws of Imperfect Obligation : These laws have no sanction attached to them.  Thus, there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s, etc.

Criticisms of Austin’s Theory :                                             

(i)       Customs ignored : For Austin, law is the command of sovereign.  In the early times, not the command of any superior, but customs regulated the conduct of the people.  Even after coming of State into existence, customs continued to regulate the conduct.  Therefore, customs should also be included in the study of jurisprudence, but he ignored them.  Customs have been in existence since old times.  Customs hv also bn an important source of law.  As per Austin, customs can only be a law if the sovereign accepts them as law, while customs provide the basis on which the law can be based.  Thus, even if the sovereign does not recognise them as law, customs hv always bn an important source of law & can’t be ignored.

(ii)      Judge-made law : There is no place for judge-made law.  In the course of their duty (while applying precedents & interpreting the law), judges make law.  Though an Austian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts r the commands of the sovereign.  However, in modern times, judges perform a creative function & Austin’s definition of law does not include it. 

(iii)     Command theory untenable : Command presupposes a commander.  No indeterminate party can command, expressly or tacitly or can receive obedience or submission.  The question is whether he can be discovered, who might be regarded as having commanded the whole corpus of law.  In democratic system, it is not possible that one person commands. 

(iv)     Sanction is not the only means to induce obedience : As per Austin, it is the sanction alone which induces the man to obey law, while it is open to criticism from many points of view as there r many other considerations such as reasoning, logic, love, etc. due to which people obey.

(v)      International Law : Austin put Intl. Law under positive morality a/w the law of honour & law of fashion.  The so-called law of nations consists of opinions or sentiments.  It, therefore, is no law properly so called.  The main ingredient of law lacking in Intl. Law is sanction, but this alone will not deprive from being called law.  Now-a-days, Intl. Law is playing an important role &, thus, it can’t be totally negated.  Hence, nobody will accept that Intl. Law is not law.  Therefore, according to Austin, a very imp. branch of law shall be excluded from the study of jurisprudence.

(vi)     Relation of law & morals overlooked : To Austin, law isn’t concerned with morals but this isn’t correct proposition.  Law is not an arbitrary command, but it is a growth of an organic nature.  Moreover, law has not grown as a result of blind forces, but it has been developed consciously & has been directed towards a definite ends.  It isn’t completely devoid of ethical & moral elements.  Any law, which is devoid of ethics or morality, can’t withstand the test of time.  People don’t accept it whole-heartedly because of it being unethical.  Hence, morals hv always bn an integral part of law. 

(vii)    Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure Code, etc.  He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity Act, etc.

Applicability of Austin’s Theory In India :                           

(1)      We don’t hv a legally unlimited or indivisible sovereign.  Our constitution is supreme, though it can be amended, but basic structure can’t be. 

(2)      Though there is separation of powers, yet sometimes judiciary makes law (Art. 141 – Vishakha’s case & D.K Basu’s case). 

(3)      Ordinance making power of the Governor & the President (Art. 123 & 213);

(4)      We have quasi-federal system.  Though the President has the supreme power, but the same is exercised by the Prime Minister. 

(5)      DPSP r not positive law as per Austin.  Though DPSP r non-justiciable, yet they r important as they govern the guidelines for the society.  Thus, the principle of ‘is’ & ‘ought’ fails.

Comparison of Bentham & Austin :

(i)       Bentham provided a deeper & more adaptable theory.  His concept of sovereignty was flexible as it avoided indivisibility & illimitability.  He was, thus, able to accommodate the division of authority b/w organs as in a federation or division in certain areas as well as restrictions of authority.

(ii)      His concept of law was broader than Austin’s.  He avoided the absurdity of ‘law properly so called’. 

(iii)     His sanction was both wider & less important than Austin’s sanction.  Laws are still laws even though supported by moral or religious sanctions or they may even be accompanied by rewards.  He, thus, had no need to resort to a sanction by nullity. 

ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW