JURISPRUDENCE

Contents
RIGHTS .................................................................................................................................................... 2
Hohfelds Analysis of Rights .................................................................................................................. 2
M. Gopalan v State of Kerala (2013) ................................................................................................. 3
Pairs of Rights ...................................................................................................................................... 3
POSSESSION ............................................................................................................................................ 4
Mohanlal v State of Rajasthan ............................................................................................................. 4
Idea of Possession ............................................................................................................................... 5
Types of Possession ............................................................................................................................. 5
A. Actual and Constructive Possession (also called immediate and mediate possession)............... 5
B. Corporeal and Incorporeal Possession ...................................................................................... 6
C. Possession in fact and Possession in Law (De Facto Possession and De Jure Possession) ........... 6
D. Adverse Possession .................................................................................................................. 6
OWNERSHIP ............................................................................................................................................ 6
Q. How do we become an owner of something? .................................................................................. 6
Q. What is at the core of ‘Ownership’? ................................................................................................ 7
 TCS v State of AP ...................................................................................................................... 7
IDEA OF ‘PERSONS’ – Non-Philosophical Sense ........................................................................................ 7
Natural Person .................................................................................................................................... 8
Legal Person ........................................................................................................................................ 9
A. Corporate Soul ......................................................................................................................... 9
B. Corporation Aggregate ............................................................................................................. 9
JUSTICE ................................................................................................................................................... 9
A. Distributive Justice ....................................................................................................................... 9
B. Corrective Justice ....................................................................................................................... 11
Incorporation of a Company .................................................................................................................. 11
Impact of Formalities ......................................................................................................................... 11
Branches of Company – Personality of Company ............................................................................... 11
Philosophical Justifications .................................................................................................................... 12
Law of Torts ....................................................................................................................................... 12
Law of Contracts ................................................................................................................................ 12
Law of Property ................................................................................................................................. 12
Beautiful Idea of Rights.......................................................................................................................... 13
 HLA Hart ............................................................................................................................................ 13
Jeremy Bentham................................................................................................................................ 15
Mill .................................................................................................................................................... 15
Anti-Sikh Riots ............................................................................................................................... 15
Summary of Mill’s idea –................................................................................................................ 16
Utilitarianism – Maximization of happiness .................................................................................... 16
Mehrangarh Fort ........................................................................................................................... 16
John Locke ......................................................................................................................................... 17

RIGHTS
A (Seller) B (Buyer) [Agreement to sell a car]
B has performed his part of the contract. Now B says, “I have a ‘right’ to get the car.”
 Inherence – When we say there is a right, we naturally believe that there is someone who has the
right, i.e. the right is in someone – bearer (in this case ‘B’). It can be a legal entity also, not
necessarily a human being.
 Incidence – The right is against someone. Putting pressure on someone, targeting someone (In
this case ‘A’).
 Content – One on which there is incidence. Relates to action. One either acts or forbears.
 Subject of Rights – Right is with respect to what (In this case the car).
 Title – Something standing prior to the statement ‘I have a right’. It must originate from
somewhere. Here, it is the agreement signed. Rights are created by either an agreement or
something else. Not autopotic. Commented [SS1]: Check

Hohfeld’s Analysis of Rights

Hohfeld was an American scholar/Jurist. He died in his early 30’s. Work was published posthumously.
Other jurists carried it forward.
The word ‘Right’ used by people actually doesn’t convey the same message. Technically, what the person
is saying is not just ‘Right’. ‘Right’ has different meanings which are clubbed together generally. People
use the word arbitrarily.

Take these 4 situations, for example:

I. Right to recover money
II. Right to wear the shirt of my choice
III. Right to arrest Mr. X
IV. Right not to pay tax

The expression ‘right’ is used in 4 different senses:-

I. Anticipating some conduct, presence of claim and therefore duty
II. No element of duty, nobody has a claim over me (absence of claim)
III. Liability, someone is liable because of my action
IV. Indicating disability in State, immunity from process
‘Essence of liberty lies in the absence of claim’
‘Essence of claim lies in the presence of duty’
‘Essence of power lies in the liability of the other person’
‘Immunity-disability in you from which originates my immunity’
The most common mistake people make is that they use the word ‘right’ arbitrarily.

Claim Liberty Power Immunity

Duty No-claim Liability Disability

 Jural Correlatives ( ) : A set of 2 factors related to each other in such a manner that if
one factor is present in one person, then the other factor is present in another person.
 Jural Opposites ( ) : A pair of relations such that if one factor is present in a person, the
other factor isn’t present in the same person.

Hence we see that rights are a mix of jural relations. Moreover, Power-Liberty is a foundation for Claim-
Duty relationship. Eg. Indian Contract Act is a foundation for all contracts.
According to HLA Hart – Power and Duty are key elements and can combine with each other in various
ways:
 Power to make law or duty to make law
 Law may create power or law may create duty

M. Gopalan v State of Kerala (2013)

Explain Article 21 using Hohfeld’s Analysis.
Article 21 has a mix of jural relationships. 12 has a negative connotation. It is directed towards the state
and imposes a disability on the state. There is an immunity in the citizens. There is empowerment also –
gives power in the proviso. If you invoke the power then only a claim-duty relationship arises. Moreover,
if the state doesn’t recognize any right particularly, you have no claim. Government is under no obligation
to create something. Eg. Right to Education

Hence we have to understand Hohfeld in a temporal context – that is with passage of time.

Pairs of Rights
1. Perfect and Imperfect Rights
Perfect Rights are rights recognized by the state and enforced by law. Eg. Rights arising from a
contract.
Imperfect Rights are recognized by the State but are not enforceable. Eg. Time-barred debt, Right
to Education.

2. Positive and Negative Rights

Positive rights demand an action. They are of a claim-duty nature.
Negative Rights are where you have a duty to not act (forbearance).

3. Rights in Rem and Rights in Personem

Rights in rem are against the whole world. Eg. Property Rights, IPR.
 Rights in Personem are directed towards a specified individual. Eg. Contract.

4. Proprietary Rights and Personal Rights

Proprietary Rights are with respect to one’s property.
Personal Rights are rights towards oneself. They are non-transferable. Eg. Right not to be
defamed.

5. Inheritable Rights and Uninheritable Rights

Inheritable Rights are for example a right to collect rent from property owned passes to
successors.
Uninheritable rights die with the person.

6. Rights in repropria and Right in Realiena (Both relate to property)

Rights in repropria is right in one’s own property includes right to enjoy, dispose off, right to
destroy and exclude others.
Rights in realiena are rights in the property of another. Its characteristic is of two types:
a. Positive – Right to use. Eg. Easement.
b. Negative – Prevent another to enjoy property in certain manner. Eg. Air and Light.

7. Principal Rights and Assessory Rights

Principal rights are original rights. Eg. Right to ownership
Assessory Rights are Contingent Rights. They are subject to the Principal right of ownership. Eg.
Collect rent.

8. Vested Rights and Contingent Rights

Vested Rights have already become perfect and are vesting in some person.
Contingent Rights are recognized in some person but will become vested on the happening/not
happening of some contingency. Eg. Partition of HUF (Male unborn child’s share contingent on
birth).

POSSESSION
Mohanlal v State of Rajasthan Commented [SS2]: Pranav TA
FACTS – Person arrested for stealing 10 kgs of opium. Convicted b Sessions and High Court. Hid the opium
under a bride. NDPS Act subsequently came into force (penalty harsher – from one year minimum to10
years minimum). Contention by the defense was that the FIR was lodged prior to the NDPS so it shouldn’t
apply.
Possession in criminal law:
 Characterization of crimes in society – based on the needs of the society hence acts enforced to
put a stop to smuggling, drugs, etc.
 Traditional Criminal Law – Burden of Proof is beyond reasonable doubt + show complete chain of
events. Nowadays, NDPS – mere suspicion or knowledge on part of the accused regarding
criminality is enough. Eg. New driver and if there are drugs in the boot all that needs to be shown
is knowledge. Less than that also enough (reasonably show apprehension of the possibility of
drugs being there). In traditional criminal law it was necessary to show intention.
 Possession is whatever the state says it is.
Justice Deepak Mishra – SC. It is important to know who has possession:
- In law, possession is a prima facie evidence of ownership (rebuttable)
 - Possessor has certain remedies against the owner Creates some rights.
- Eg. Owner of house gives house on rent. Tenant has rights, now owner cannot trespass
- Eg. Theft is possession based offence (all that is required to be shown is possession)
- Possession creates ownership in due course of time. Eg. Go to high seas, catch fish. You possess
the fish thus making you the owner.
- Possession sometimes creates ownership when original possession or ownership is unlawful
(adverse possession). So, adverse possession converts into ownership in due course of time.
- In this case, the court retrospectively applied NDPS.

Idea of Possession
Initially the idea of possession included 2 requirements:

Corpus Possessionis (Effective control over things – by Savigny) + Animus Domini (The intention to hold
as holder) = Possession

Effective control means an ability to reproduce things at will. So, handing over keys of your room is not
handing over possession of the room.
This theory creates difficulty. Eg. One gives gold to bank as security for money. Bank puts the gold in a
locker. Possession?
Neither the original owner nor the bank has possession. Thus, if anyone takes away the gold from the
locker, he hasn’t dispossessed anyone.
Improvisation of this idea:

Corpus Possession + Animus Possidendi (intention to exclude others) = Possession

Now in the example above, bank has possession because no one else can touch it. Even the owner can be
held guilty of theft of gold. Because possession with the bank for the time being.
Eg. During whitewash, you lose a ring but you don’t know where it is. One fine day, you remember where
the ring is.  No Corpus Possessionis anymore
Few years later, a servant finds the ring and takes it away. So since there is no Corpus Possessionis with
the owner so is it theft?
Thus courts have decided that Corpus Possessionis is not essential. If Animus Possidendi is present, there
is possession (Which was in the present case)

Eg. A drug lord has drugs in his pocket and his understudy knows that and is driving the car. When they
get caught, the drug lord is definitely guilty of possession. What about the understudy? Both Corpus
Possessionis and Animus Possidendi absent so hence not charged with possession of drugs. Hence if
charge is of possessing contraband then understudy won’t be liable but might be guilty for transfer and
carriage of the same.
Animus Possidendi not required but courts have developed that for drugs, etc. knowledge constitutes
possession and is enough to make a person guilty.
Intention is different from knowledge and motive – Reason to believe intention is sufficient in NDPS
(Section 35).

Types of Possession
A. Actual and Constructive Possession (also called immediate and mediate possession)
Actual Possession – directly in control.
Constructive possession – Control through someone else. A has possession through B. Has three types:
i. B is holding property for A and B has no claim over property Circumstance where B has no
knowledge of things. Eg. Lunatic or a small child. So in a situation where B is a lunatic and
smuggles illegal goods, B has no liability has he has no knowledge
ii. Both A and B have claim over property. Eg. Driver and owner of car wherein possession of car
with owner through the driver. Driver also has some control, which is inferior to that of the
owner.
iii. A possesses through B and the thing is actually with B. Relationship such that ownership with
A but at the time goods shall remain with B. Eg. Mortgage, landlord-tenant situation
B. Corporeal and Incorporeal Possession
Corporeal means tangible (which can be touched, felt, etc.)
Incorporeal is related to the thing. Cannot be touched or seen but is still property.
A writer holding the copy of his book has Corporeal Possession along with rights over the book. If he hand
over the book to someone his corporeal rights come to an end however his incorporeal rights (IPR) still
remain.
C. Possession in fact and Possession in Law (De Facto Possession and De Jure Possession)
Possession in Fact – When you actually hold the thing. Some may only have De Facto Possession. Eg. A will
which is to be executed so the executor only has de facto possession over the property. A De facto
Possessor has a number of obligations with respect to the property.
Possession in Law – Law considers that you have ownership even if possession is not there. Eg.
Coparceners Property, HUF (wherein all are seen as owners even though only some are living in it).
D. Adverse Possession
- Should be actual. One who has it should do something which alters the character of the
property. Eg. Person comes in field and squats – Not actual. If he cuts trees then it is actual.
In residential houses whitewashing is an example.
- There should be an open use of the property. Done in such a way that notice shall go to a
reasonable person. Eg. Taking mangoes from a garden at night when no one notices – not
adverse possession.
- Your action should be coupled with a hostile intention towards the ownership
- Time period – Adverse hostile act done openly if done on:
o Private Property for 12 years
o Government Property for 13 years
- Whatever the stipulated time, the adverse possession should be continuous.
- Starting of the activity should not have been done with violence.
- There should be no contract between the parties regarding the use of the property.
Consequence – Law presumes that ownership of the owner has expired. In US, condition that person has
paid property tax important to qualify. In British, it should satisfy the Squatters Act
As soon as you complain and litigation begins, then adverse possession comes to an end.

OWNERSHIP
Non-philosophical understanding of ownership. Questions:
Q. How do we become an owner of something?
There are four ways of becoming an owner. They are:
1. Capturing
This is the most primitive way. It is subject to the qualification that they were present in nature
and no one had a superior prior claim to it. Eg. Companies extracting oil from high seas. Some
 people object to this because in modern times, how much you own depends on how much
technology you have hence it is not an even playing field.
2. Creation
Create something. Two ways:
- When you procure material from somewhere and use skill (Labor + material).
- Create something from nothing. Eg. IPR (book, etc.) (Use only Labor)
Limitations of this are that the copyright of an employees work in a newspaper may rest with the
employer.
3. Transfer
When a thing is transferred to you and you become the owner. It is of two types:
- Inter vivos transfer – between two living persons. Eg. Sale, mutation (name of the owner
is changed)
- Will/Testament (transfer after death of a person)

4. Prescription
Law assumes that new ownership has been created. Eg. Adverse possession (property belongs to
someone else), Escheat (if you treat the state as a person)

Q. What is at the core of ‘Ownership’?

Ownership as an essence is of a ‘thing’ or of a ‘right’?
The traditional meaning of the word relates to physical possession. However, nowadays it refers to the
relation with the ‘thing’.
Unrestricted in user/indefinite in user – An owner can use a good however he feels like it. He has certain
rights:
- Can dispose off as he wishes (even destroy the property)
- Can use as he wishes
- Both of the above rights are unlimited with respect to time. They don’t end and are indefinite
Core of the meaning of ‘Ownership’
Power of Attorney – Delegation of power to a person by owner in relation to property. Hence he passes
the right to dispose off the property. Can also create a mortgage in favor of someone at the same time.
In such a situation what rights remain with the owner? One person has the right to reside and possess
while another has the right to sell.
In such a case the owner has the Right to Title. Individual rights can be transferred (right to sell and reside)
but reversionary rights cannot be transferred. When this right is exhausted, ownership will revert back to
owner. Cannot be partially transferred. When the reversionary right is transferred only then the
ownership changes.
Hence when we say we are the owner, we are the holder of reversionary right. Therefore, ownership is of
a ‘right’ (in relation with the thing).
 TCS v State of AP
AP – General Sales Tax Act, 1957
TCS – Software provided is not a ‘Good’ but only service provided should be charged as service tax.
Software (the code) is not bought but only the license to use the application of the code is bought. When
you buy a book, you get the book not the idea.
Sales tax can be levied on intangible goods also.

IDEA OF ‘PERSONS’ – Non-Philosophical Sense

Q. What do you mean by ‘persons’?
Q. Types of ‘Person’ law recognizes?
Q. Advantage of a Corporate Aggregate as a ‘Person’?

According to Salmond, ‘Persons’ was not indicative of human beings to begin with. Originally indicated a
mask used by theater actors to portray a character. Later, mask became attached to the character that
the mask was supposed to portray. And then eventually ‘Person’ i.e. the mask, became attached to the
human being playing the character.
Nowadays ‘Person’ includes:
- Natural Persons
- Legal/Juristic Person

Natural Person
A natural person is one who has not been given birth by law. A legal person is only treated as a person
because law treats it as one. Eg. Company.
Questions like ‘How much humanity should be present?’ What about a slave? A dead body? Unborn but
conceived child? If not any of the previous three, then you are a natural person.
In terms of law, ‘Person’ refers to an entity capable of holding rights and obligations (covers both kinds of
rights).

1. Slaves
In US, UK, France, etc. where slavery was legally recognized they were seen as capable of holding
obligation but not rights. They were not considered as entities good enough to give testimony (be
a witness). People thought that they would always be biased towards their master.
If a slave runs away, he continues to be the property of their master. The Rule of Escheat would
apply (if master and successors dead, then he would be the property of the State). Treated as
Chattel.

2. Dead Body
Provision in IPC (Section 297) – Aiming to protect the dead person’s family’s feelings – Doesn’t
actually give any rights to the dead person.
Or, even after death some right survives in which case, who holds right? It is the Right of living
person but relates to the dead body.
Ashray Adhikar Abhiyan v UOI (2002 2 SCC 27) – Dead body of homeless person. SC held even
such a person has a right of decent burial. It is the duty of the state to find out religion of person
and give burial accordingly or give him a secular memorial. Court held that dead body is not a
person, however some rights remain.

3. Unborn Child
According to TPA, transfer to be made for the benefit of an unborn person is allowed (vested
interest in the property)
According to Hindu Law, an unborn child has the right to get a share in a coparcenary property
(HUF). So for the purposes, he should be treated as living.
Muslim Law – According to Sharia, transfer and gift of property are not allowed in the name of
unborn child. Only inter-vivos allowed (completely born and alive)
Legal Person
A. Corporate Soul
Primitive reason – Offices holding rights and obligations and laws were such that as soon as the person
holding the office dies, the rights and obligations also die. Eg. King was made a party to prosecution,
transfer of land only done with the seal of the king. If the king dies, all the proceedings come to an end.
This created a lot of practical difficulties. Therefore, separate office of the King and the person. So the
office hold the rights and obligations. Hence the saying ‘The King is dead, long live the King’ – meaning
that the person is dead but the office continues so as to allow for smooth transition. Eg. Office of
President, Governor, etc.

Hindu Law – A Hindu idol is an example of a corporation soul. Eg. Putting money in donation box then who
is the owner? For tax purposes, God is a juristic person and is capable of being taxed.
Now what if the Idol of the God is stolen or breaks, would you say that God is dead or has been abducted?
In law, the idol is not ‘God’, only an image of the owner. But for tax purposes, idol is a juristic person but
the idol can be replaced, mended and transported.
Not every idol is treated as a juristic person. Some Vedic ceremony is required (Prand Prathista) after
constructing temple and chant only then it is seen as come to life. Then for every purpose, the idol is to
be treated as a living person. Once you do this ceremony, you cannot leave the temple.
Guru Grant Sahib (the final Guru) also a juristic person.
 Shri Gurudwara Prabandan Committee v Som Nath Das (2000 4 SCC 146) – Important
No legal judgement relating to mosques – Mulla says not a juristic person.

B. Corporation Aggregate
Understand ‘Justice’ before, then move on to Corporation Aggregate.

JUSTICE
When we say Justice we intend to say either of the two things:
- Distribution of resources and burdens
- Problem with the distribution done and how to solve it
Hence the idea of ‘Justice’ can be divided into Distributive Justice and Corrective Justice
A. Distributive Justice
 Means the Just Allocation of advantages and disadvantages. Advantages refers to
opportunities to work, buy property, move freely, etc. while disadvantages refers to burdens
like tax, restrictions on weapons, narcotics, etc.
 Distribution of advantages and disadvantages should be fair. Rights and liabilities should be
just.
 Leads to a debate on morality – What are the things that should be done and not be done so
as to ensure there is justice?
 Allocation cannot be done by anybody besides human beings. Whoever is entrusted with the
task of allocation has the power. Usually (but not always) this power rests with the state,
while opportunities and restriction are given to the citizens of the state.
 When power is given, people in power tend to discriminate and this leads to corruption
 So to avoid an abuse of power, slogan of ‘Liberty’ emerges in society. This liberty keeps the
power in check. However, liberty itself is likely to be abused by the liberty holders. Hence,
can’t have excessive power in state and excessive power in citizens.

Liberty Power
Power Liberty

Power > Liberty Liberty > Power

Leads to Dictatorship or Leads to Anarchy.
Monarchy. Reduced quality of life.

Hence it is important to work towards

maintaining a balance between power and liberty (Continuously shifting balance). Optimal is
when the balance is equal. This is done through the following ways:
- Constitution
- Check on the abuse of power
- Check on the abuse of liberty
- Just decisions in disputes
- Adaptation to change

In a democratic setup, just allocation of advantages and disadvantages done by people in power
and moreover achieve no abuse of power and liberty which is done through the judiciary.
According to Dworkin, judges should not make a new law and should just find existing law.
Otherwise he is taking on the role of the legislature.

In today’s world, the power is also in the hands of the Corporations, wherein through their money
they can exercise the liberty of people. Various relations of power and liberty arise:
- Company and its shareholders (law there to protect the rights of minority
shareholders)
- Company and other companies
- Companies and buyers/citizens

Q. Can a company be treated as a citizen in India? AIR 1963 SC 1811 – Company not a citizen. S.
2(f) – Citizenship Act, 1955 – defines the word ‘person’ – doesn’t include a Company

Q. Can a company have fundamental rights in Part III of the Constitution?

Co. is a person capable of having rights and obligations – even Fundamental Rights and Criminal
obligations
DCM v. UOI, 1983 (4) SCC 166
Q. Can a company be held criminally liable? Can it have Mens Rea? What about the offences
where there is a mandatory prison term like in NDPS, FERA, Human Organ Transplantation
Act, etc.?
S. 11 – IPC, S. 38 – NDPS Act.
If offence by Company, then liability is joint. E.g. Doctor – violated Human Organ Transplantation
Act – Hospital also co-accused – hospital run by a corporation
Suppose there is a case of cheating – misappropriation of funds – Accused No. 1 is the human and
Accused No. 2 is the Co.
If offence is such that punishment is mandatorily imprisonment, how will you punish the
Company?
Lex non cogit impossibilia – Law doesn’t contemplate something which is impossible
 Read Asst. Commissioner Assessment – II, Bangalore v. Valliapa Textiles, 2003 (11) SCC 405.
Liability of corporation only in those cases where law contemplates fine.
But then, misuse of power
Case overruled by Standard Chartered Case, 2005 (4) SCC 530.
Instead of imprisonment, you impose monetary penalty.

B. Corrective Justice

Incorporation of a Company
Company registration procedure:
- Article of Association
- Memorandum of Association – Mandatory document. Gives name, place of business, principle
shareholders. Has an object clause (which gives objectives of the company)
Once formality done, the company becomes a separate legal entity.
 Solomon v Solomon – Family members formed a company. Transferred existing business to
company. Since the company needed funds so showed Solomon as a shareholder and a secured
creditor both (If a company goes insolvent, secured creditors get money first). Since the assets <
liability, so unsecured creditors objected that the company and Solomon were the same person.
House of Lords decided that company once formed would be a separate legal entity.
Impact of Formalities
1. Registered MOA – Registrar is a public office so the MOA becomes a public document. Hence, can
find details and object clause.
2. Doctrine of Constructive Notice – Doctrine emerges. Law assumes that everyone knows the object
clause of every company.
3. Doctrine of Ultra Vires – Any contract beyond the scope of the object clause, company is not
bound by such contract. Protects the company from alter ego, directors that have their own mind
and agenda. But Ultra Vires creates misbalance also.
4. Doctrine of Indoor Management – Exception to ultra vires. When a company is functioning, some
part of it is known to the public (outdoor management). But a lot of the management is not known
like mechanism of how purchase order is placed (some rule not known to bidders). Can they
revoke it? No as outsiders cannot be expected to know internal mechanism. Eg. Who is
empowered to sign? Protects outsiders from abuse of internal mechanism.
5. Lifting of the Corporate Veil – Court ignores separate entity. Actual person are caught. Eg. Fraud,
avoidance of contractual liability, avoidance of taxes.
6. Section 135 of Companies Act – CSR Initiative. Company is a consumer of resources. If they are
financially strong, why not give back. Treating company as humans.
Branches of Company – Personality of Company
1. Kelsen and Salmond – Communists. Believe biological entity we are is outside from law. Law
controls only rights and liabilities. Idea of personality is one created by law (attributed by law).
Law does it with biological and non-human entity.
More correct according to Kaushik
2. Hohfeld – Only humans are persons. Legal entity treated as persons because of convenience. Ease
of managing jural relations in transactions. Bracket Theory – Bracket put around individuals. Law
also doesn’t treat as company if it doesn’t suit them.
Philosophical Justifications
Law of Torts
Moral Principle/ Justification – ‘Love thy neighbor’ (Love – take care. Neighbor – any person in foreseeable
vicinity. Hence, a duty of care toward person in foreseeable vicinity/proximity. If breach of duty of care,
court takes approaches to pay compensation/ damages:
1. Correctional Justice Approach – US case – Lady in McD purchases coffee. Driving, burns her leg.
Medical expenses and loss of wages. Total loss suppose 17500. Hence, those in breach would pay.
Focus on victim and the offender. But the offender comes up with argument that he didn’t have
a duty of care and he acted as a reasonable man would have. Lady showed McD gave coffee hotter
than other shops. McD said that pattern of customers such that customers consume coffee after
a period.
Hence if focus on victim and offender then argument would always get entangled. Questions like
application of reasonable man then women?
Traditional way of dealing with tort cases. High technical requirement. More fighting capacity.

2. Economic Cases – Focus on optimum efficiency. There is a fact that is undisputed – someone has
suffered. Whether contributory negligence, etc.? Focus is on breach of duty. Chances are that lady
will lose the case and will bear loss alone.
OR not look at technicality. Distribute loses by not looking at strict proof of negligence. Hold
corporation liable (prejudgment but with basis). Make them pay lady. Company takes additional
measures and spends on:
 Train employees
 Expenses in calibrating machine
 Purchase insurance
To compensate, will increase cost of coffee. So loss distributed. Hence relaxing standard of proof
since loss not actually borne by McD. Larger picture – enjoying coffee at slightly higher cost but
life better off. This is a modern approach to Law of Torts.

Law of Contracts
Moral principle – keep your promise. Voluntary while love thy neighbor in torts is involuntary
Difference with respect to tort – In tort obligation arises because you are member of a group. In contract
you have undertaken that obligation.

1. Corrective – Breach causes disbalance. Asked to restore. Similar to Tort. Standard of proof – high.
2. Efficiency – Approximate breach. Hold person guilty. Result in greater trust among members of
society. Difficulty of overkill – now contracts drafted in very complicated manner. Making one
already better off more so since companies can get better lawyers. All burden goes to the other
party to bear this cost.

Law of Property
Question – What is the justification of private ownership over land i.e. property?
How did the first person become the rightful owner of land?
Moral justification - I own myself. Hence I own my labor. When I mix labor with anything freely available
in nature then outcome is an extension of me. Hence it is my property. Eg. Wood from forest. Chair from
that is your property.
This idea was applied to land by john Locke in Second Treatise of Government. Late 18th century. US was
getting colonized. Need to justify this by britishers. Hence justification was land is a free domain. Mixing
labor and occupying it. Hence activity makes it one’s land. They discount Native Americans. Locke – should
not occupy all land. Leave some amount of land for another. Hence, correct in asserting ownership of land
by this idea.

Other Idea – Certain things given by God. We don’t own them including oneself and our life. This idea also
emerges from Locke. Can you sell yourself? Kill yourself? No. Property belongs to free domain. State
justified in leasing land. US SC – can take land and transfer it to another citizen (5th amendment)

Modern idea – land belongs to no one. Do we own ideas?

Beautiful Idea of Rights

HLA Hart
HLA Hart – 1955 gave an article. Explores question ‘Do we have natural rights?’ If yes then what are they
and why are they natural?

I. A has a right to stop B from smoking

II. B has a right not to be stopped by A from smoking

Validity of Legislation
 Purely Legal way – Kelson’s idea (Higher norm). Death penalty in Constitution
 Moral validity – DPSP legally justified not morally. State killing its own citizens.

Law doesn’t stand on its own feet. Stands on morality. Legal and moral – different ways of looking at
something. As lawyer, legal only. When amending or changing law – basis is never legality. Only morality.
Deeply interlinked. If some legislation is morally bad, it will cease to be a law eventually.

I. A has a right to stop B from smoking

HLA Hart has four circumstances where A can claim moral right over B
a) When B has promised A. Promise creates moral right over B of voluntariness. Only A. Not
C. Promise + voluntary nature = creates right in one person
b) When B has consented to A that he can interfere when he sees him doing something
wrong. Promise – affirmative – I will not smoke. Consent – If you see me smoking you are
invited in my free space. Voluntary, only for that person. Not the rest of the world.
c) When there is a spatial-natural relationship. Eg. Parent-child. Different from a) and b).
Legislation to give maintenance to senior citizens from children. Legally valid? For moral
validity look at different grounds. Hart would give this ground. Parents have a right to get
maintenance which is justified by morality.
d) Both are members of the same group. Activity engaged which involves mutual
cooperation then make members abide by rules - moral duty. Eg. Part of Tennis academy.
Smoking will hinder ability to play. Morality – B is getting benefit of the sacrifice everyone
is making. So they have a claim over B who is beneficiary. Difficulty – when membership
not voluntary. Eg. By birth. Like a state. Hart doesn’t explore this. This reasoning – biggest
reason for curtailment of FR. State justified in killing its own citizens? Laws of state – legal
and moral obligation to obey the law. State justified in enforcing morality?
Hart says that these four situations – special moral rights (SR) of A over B (Restricted in first three not
four). If these SR don’t exist in A, general right in B [B has a right not to be stopped by A from smoking]
B has a general right not to be stopped by A. Subject to SR

HLA Perspective
I. B is voluntarily inviting. Assumption that B is a free person. Freedom in the content that B is
sacrificing in the first situation. Unless eclipse of 1, B is free. What does this freedom mean?
Absence of coercion and restraints by anybody. Hart – if no supervening circumstance – bottom
of human existence there lies freedom – Hence natural right (general background moral right).
II. Supervening situation on B has nothing to do with quality of activity. So A doesn’t have a right
because smoking is bad. But can stop based on consent, promise and relationship. So without
making moral judgement of activity moral right is created. Eg. Porn – give justification for a) to d)
usually it’s d). Similarly for prostitution, drugs, etc.

HOW TO PROTECT SANCTUM SANCTORUM WHERE CITIZENS ARE SAFE? (Discussion for a month)

Q. How much state may interfere in the life of people?

2013 Uttrakhand – Greatest tragedy of the last 2 centuries. Some people started seeking essential things
– one water bottle for rupees 00. 200 for one chapatti. Tea – 7 rupees. Was this a just pricing? View:
1. There is nothing inherently just in pricing. Five star hotel Idea given by free market
2. Inherent neutrality in justness is on the presumption of free consent. Five star hotel – free consent
of exchange. No duress. Not forced to pay more than willing.
In the above situation of disaster, free consent is missing

Hence there is a clash between

1. Principle of Freedom – Sell and buy goods at whatever price.
2. Welfare – Case where welfare shall trump freedom.
If at the bottom of freedom there is coercion then not a free market.
Eg. Average salary – Rs. 6,426 for a farm household (includes working on agricultural field and transaction
in livestock) Mukesh Ambani – 1.2 crore.
IS this just salary?
Both situations working really hard. But other factors also come into play. How much luck involved?
Cannot make a complete moral claim over salary. Only legal claim because not completely your own doing
(They’re not even your shoelaces). Forces like birth condition.
Justice – look at how you are getting what you are.

Relationship between religious communities in US (Muslim and Christianity)

Trump Order – Iran, Iraq – Affects 7 countries. No ban on Saudi Arabia, Pakistan.
State should also promote virtues. Not just appeasement of majority. Should promote good qualities.
Individual liberties v collective goals
Good qualities v instant reward
State guardian of virtues. Legal role of state (Paternalistic role of state)
Sovereignty of state over its own citizens?
Balance liberty vis-à-vis welfare, good qualities.
NK – name of promoting virtues take away freedom
How state becomes an extension of human being? Bentham Chapter 1 – Principles of morals and
legislations.
Jeremy Bentham

Try to challenge Jeremy Bentham on 2 fundamental points that are the principles of this theory
Since we are governed by pleasure and pain, therefore, it is natural for us, from Bentham’s POV to increase
our pleasure and diminish our pain. Therefore, since it is so natural, it is JUST also. This is the foundation
of theory of justice. He then increases to the idea of State. Whatever is just for an individual for increasing
the pleasure, so is it just for the State to increase the pleasure of citizens.
There is no intrinsic value of any activity. Therefore, there cannot be a moral distinction between any
activities.
These are the two things we’ll challenge
Are Humans only pleasure seeking entities or are we something more?
Are pleasures of different qualities? Can there by a qualitative distinction?

Q. How US SC will see the executive orders of Trump’s orders? What is the touchstone on the basis of
which they will strike out this order?
There is a difference between policy and principles. These are the policies that Trump is making. Which
policy is just? According to Bentham, whatever he is ordering, he has been elected by people in the
majority. And therefore, SC will test these policies on the touchstone of constitutional principles.
Principles differ as they take into account long term pleasures of the society. These constitutional
principles are created because it is believed that they’ll keep everyone happy in the long term. SC, if they
find, these policies are against such principles, will strike the said policies. They cannot say that in future
he cannot make such orders, they can only strike it down every time he makes it.

Mill
Pleasure, pain, time. Humans want to happy for a long time. Qualitative difference in pleasure. Distinction
between good and bad pleasures. If we cultivate higher pleasure – better.
Allows state to make distinction. Ban pornography. Justifies state classifying activities as good/bad
If you’re in minority, chance that majority is deciding what is morally good/bad.

Katrina Kaif Sujata Mohapatra

12,58,357 YouTube views 30,100 views
Are pleasures qualitatively different?

Now, recall what justice is. So, one of the imp task of justice is to distribute resources. Now, resources are
distributed by the State. Now, State needs to start one dance school, which one will the State choose?

According to Bentham, the fact remains this, no matter what the activity is, it should be seen only as
pleasure seeking
When pleasure is generated in our heads, there are two things happening, we’re either despising.

Anti-Sikh Riots
31 Oct 1984 – Indira Gandhi assassinated by her own Sikh bodyguards.
1 Nov 1984 – Riots erupted in Delhi and other parts of the country.
During this time, they started killing non-Sikh people. At the same time, we started facing difficulty in the
State of Kashmir. The then PM ordered the army to take some action and flush the enemy. Because of all
this, there was a lot of backlash. This backlash resulted in a lot of blood.
3 bodyguards out of 4 were Sikh. Despite the entire intelligence report and everything, they didn’t change
her bodyguards. Immediately, riots began. The truth is that 100s of Sikh people were killed in Delhi.
Brutally killed. There was a kind of mob sentiment towards Sikh. It was also said that there was a political
thing as well. Car tyres were put on their shoulders and these Sikh were killed.
The resultant would be chaos, and every group will be oppressing some other group all the time. It
happened with Christians v Jews.

Q. How to protect individual rights?

By recognizing rights

Q. Why to protect individual rights?

Different answers with different approaches – Utilitarianism, libertarianism)

Q. What liberties need to be protected?

Consciousness of tastes and pursuit of publishing and expressing Commented [SS3]: Check

Mill improvises on Bentham. Majority may oppress minority. Bentham – majority utilitarianism. Mill tries
to find flaw – says minority also there. Majority may be tyrant Advocates for protection of liberties and
independence of the wishes of the minority. No individual can be harmed except for the purpose of
preventing harm to others

A balance of the two is an ideal situation.

Summary of Mill’s idea –

 There is a qualitative difference in pleasures.
 There is a need to cultivate a habit of good pleasure. Allowing the State the leeway to make certain
moral rights
 Individual liberties need to be protected to serve the permanent interest on mankind
 There is no such thing like an ‘abstract right’.

Utilitarianism – Maximization of happiness

 Long term happiness – Mill takes into account qualitative differences in happiness. Duty of state
+ individual liberties important as conducive to long term happiness of society.
 Short term happiness

Utilitarianism allows state to interfere in individual lives without consent. Ownership of individual is with
group. You are owned by society in which you exist – state. State has to give justification that everyone
will be happier in the long run.

Mehrangarh Fort
STORY - Mandor to Jodhpur the capital was shifted in 1458 by Rao Jodha. An old hermit, Lord of the Birds,
lived there on a hill. Cursed the ruler saying you’ll have scarcity of water. King consulted astrologist who
said you have to bury a human in the foundation of the palace.
Rao Jodha announced in the city – ‘Sacrifice yourself for the sake of others’
Rajaya Bambi voluntarily accepted. His family and descendants were taken care of.
Q. Was this a ‘just’ transaction?
Consent + consideration = Just?
Look at circumstances of people. Justness of state banning prostitution, renting of wombs, etc. who are
driven to it by poverty, illiteracy, etc.
Consent hence not sufficient justification.

Q. Does consent justify any transaction?

Should there be some limits on consent?
If no - then why not?
If yes – then should there be limits on consent? If yes, what should be those limits?

Superior kind of pleasure – there should be proper upbringing

John Stuart – No idea of abstract rights (Abstract rights should be the end)
Right –
 Utilitarian – Attain happiness (Means)
 Abstract – Merely because it is the right thing (end)

Q. Convention against Torture – India is a signatory. Can be defended by Mill?

Utilitarian view – Torture is justified. Extract information. Save lives.
Find reasoning against torture through Mill – Mill protects liberty because arbitrary killing of minority will
affect functioning of society. Not because of individual rights.
Utilitarianism is unjustified because lack of consent. But if there is consent, are all transactions justified?

Q. Does consent justify any transaction we enter into?

Also assuming that there is an overall benefit of the society, can we still say that the transaction is just?
But if you say, that consent will justify everything, then what is your vision? Can you consent to any extent?
What is your concept of self - that I can do whatever I do with my body. That means, things like attempt
to suicide should not be a punishable offence. This is how the Libertarianism built their case.

John Locke
Liberalism. Government by consent
‘Second treatise of Government’ – Book
Human beings creatures of God. Sent into the world by his order. They are his property
Life given and taken away by god. Not voluntary by us. Hence you are not the owner of your life – only
custodian. Justifies both stages below:
 State of Nature – God created us. We are custodian of life. Hence duty to preserve and protect
one’s life. Three rights emerge – Inalienable rights
o Life
o Liberty
o Property – Humans given body. Have control over body. When we exert ourselves – do
labor – we mix natural material with labor so it becomes our property. Property is a
natural right which is inalienable.
Since we want to preserve our life, if someone attacks us we retaliate – comes naturally to you
and is your duty. But retaliation may be uneven or attack could be for no reason.

Hence difficulties in state of nature – Hence 3 rights are in jeopardy. Therefore, to have greater
protection of life, liberty and property – Government by consent.
  Civil Society – Now we shall surrender all of our rights to a government which will protect these
rights to a greater extent. Lays foundation for procedure.
Structure –
 Settled and known laws (Legislature)
 Neutral judges (Judiciary)
 Executive

Hence there should be prospective laws, division of powers, and absence of arbitrariness. Consent
continues – Granted there is no delegation of original law making power (Indian laws can’t be
made by Pakistan)
Limits of Government – Whatever state does, protection of people, etc. is to make life better.
Government should be run in a limited manner. Political right – Right to make laws, subject to
public good.

American Declaration of Independence – Highly influenced by John Locke – People can overthrow
if government not fulfilling its duty.

Q. Things that can be justified by Utilitarianism, not Liberalism.

1. Encounter Killing – No. Police carrying out all functions – Catching, deciding to kill and execution.
Not following procedure.
2. Torture of Suspects – Can be justified if the law allows it. If law doesn’t allow it then extra-judicial
activity.
3. Right to Die – John Locke doesn’t support it. Can’t surrender or throw it away. Different from
death penalty which is done for public good – provided done in accordance with laws. Death
penalty for petty offences – not justified. If able to show suicide for public good then can be
justified with Locke. Fasting by Gandhi? Can’t support because duty of public good with state.
Individual has a duty to preserve life.
4. Retrospective laws – No
5. Accepting death by consent – No.
6. Compulsory military service – If part of statute and procedure then okay.
7. Prostitution – Yes. State can regulate it by making public good argument
8. Same Sex relations –
9. Abortion – No/Yes. Pro-Life vs Pro-choice. Two individuals vs two lives with one body in control.