The Common Law in India - College of Social Sciences and ...

More documents

Recommendations

Info

192 The Common Law in Indiaof the basic difference between the powers of thelegislatures in the two countries; one with omnipotentpowers of legislation and the other with restrictedpowers delimited by a written constitution. InEngland no question can arise of Parliament's powerto delegate even the widest legislative functions toa legislature created by it or to the executive. Thecolonial and the Indian legislatures of the nineteenthcentury were created by Acts of Parliament. Indeedthe legislatures of the great Dominions of Canada andAustralia are born of parliamentary statutes. Eventhe foundation of the Republic of India with its legislaturescan be traced to the exercise by Parliamentof its power of delegation. The British Parliament caneven abdicate its functions as it has done in respectof the Dominions by the Statute of Westminster. InIndia the position is very different. The Indian Parliamentmust discharge its primary legislative functionsitself and not delegate them to others. It isfree to legislate within its sphere in any way whichappears to it to be best to give effect to its intentionand policy in making a particular law and it mayfor this purpose utilise any outside agency to anyextent it finds necessary. It cannot, however, abdicateits legislative functions and must, therefore,while entrusting power to an outside agency see thatsuch agency acts as a subordinate authority and doesnot become a parallel legislature. The essential legislativefunctions have been held to consist in declaringthe legislative policy and laying down the standardwhich is to be enacted into a rule of law. Thelegislature must retain in its own hands these essential
The Indian Constitution 193functions. Subject to these requirements the taskof subordinate legislation which by its very natureis ancillary to the statute can be delegated to anyother authority. In India whenever the validity ofa delegated power is challenged the question ariseswhether in delegating the power the legislature hasabdicated its essential function of legislation. 26 Nosuch question can arise in England by reason of thesovereignty of Parliament and its unlimited power oflegislation.SUBORDINATE LEGISLATIONApart from what has been discussed the position inIndia in regard to subordinate legislation is notdifferent from that in England. The exercise of thepowers, if properly delegated, are subject to the controlof the courts which could be invoked if personsentrusted with the statutory powers exceed theauthority conferred on them by the statute. 27 InIndia the exercise of the delegated power so as toaffect the fundamental rights would be struck downfor the simple reason that the repository of delegatedpower cannot act in a manner in which the legislatureitself from which it derives its authority cannot act. 28What Lord Shaw stated in R. v. Halliday is as2« In re The Delhi Laws Act, 1912 (1951) S.C.E. 747, and BajnarainSingh v. Chairman Patna Administration Committee (1955)1 S.C.B. 290.21 Beport of the Committee on Ministers' Powers, 1932; 1956reprint, p. 12. Allen, 0. K., Law in the Making, 6th ed.,pp. 549-555; Radha Krishan v. Compensation Officer, A.I.E.[1954] All. 202.28 Messrs. Dwarka Prasad Laxmi Narain v. The State of UttorPradesh (1954) S.C.E. 803, and The State of Bajasthan v.Nath Mai (1954) S.C.E. 982.
Page 5 and 6:
THE HAMLYN LECTURESTWELFTH SERIESTH
Page 7 and 8:
The Common Lawin IndiaBYM. C. SETAL
Page 9 and 10:
CONTENTSThe Hamlyn Trust - - - - -
Page 11 and 12:
THE HAMLYN TRUSTTHE Hamlyn Trust ca
Page 13 and 14:
CHAPTER 1THE RISE OF THE COMMON LAW
Page 15 and 16:
The Rise of the Common Law 3mixed u
Page 17 and 18:
The Rise of the Common Law 5In orde
Page 19 and 20:
The Rise of the Common Law 7and Cou
Page 21 and 22:
The Rise of the Common Law 9observe
Page 23 and 24:
The Rise of the Common Law 11Thus w
Page 25 and 26:
The Rise of the Common Law 13the ch
Page 27 and 28:
The Rise of the Common Law 15includ
Page 29 and 30:
The Rise of the Common Law 17from t
Page 31 and 32:
The Rise of the Common Law 19Suprem
Page 33 and 34:
The Rise of the Common Law 21prefer
Page 35 and 36:
The Rise of the Common Law 28made a
Page 37 and 38:
The Rise of the Common Law 25In the
Page 39 and 40:
The Rise of the Common Law 27one to
Page 41 and 42:
The Rise of the Common Law 29the ru
Page 43 and 44:
The Rise of the Common Law 81Later
Page 45 and 46:
The Rise of the Common Law 33The fi
Page 47 and 48:
The Rise of the Common Law 351872 o
Page 49 and 50:
The Rise of the Common Law 37crimin
Page 51 and 52:
The Rise of the Common Law 89requir
Page 53 and 54:
The Rise of the Common Law 41King's
Page 55 and 56:
The Rise of the Common Law 48steps
Page 57 and 58:
The Rise of the Common Law 45as its
Page 59 and 60:
The Rise of the Common Law 47The sy
Page 61 and 62:
The Rise of the Common Law 49Suprem
Page 63 and 64:
The Rise of the Common Law 51arbitr
Page 65 and 66:
The Rise of the Common Law 53has be
Page 67 and 68:
The Rise of the Common Law 55As ear
Page 69 and 70:
The Rise of the Common Law 57by equ
Page 71 and 72:
The Rise of the Common Law 59with c
Page 73 and 74:
The Rise of the Common Law 61princi
Page 75 and 76:
CHAPTER 2CIVIL LAWTHE first Law Com
Page 77 and 78:
Civil Law 65country of the parties
Page 79 and 80:
Civil Law 67be made by a will execu
Page 81 and 82:
Civil Law 69advancement based on En
Page 83 and 84:
Civil Law 71as to accommodate it to
Page 85 and 86:
Civil Law 73to contracts." The cour
Page 87 and 88:
Civil Law 75Consideration may under
Page 89 and 90:
Civil Law 77similar to those of the
Page 91 and 92:
Civil Law 791845" did not, however,
Page 93 and 94:
Civil Law 81in the same case that '
Page 95 and 96:
Civil Law 83a mistake of fact but a
Page 97 and 98:
Civil Law 85could not prevent, unla
Page 99 and 100:
Civil Law 87and also a provision to
Page 101 and 102:
Civil Law 89Act. 57 Speaking of the
Page 103 and 104:
Civil Law 91the legal relations of
Page 105 and 106:
Civil Law 93the non-performance of
Page 107 and 108:
Civil Law 95purchaser who is suing,
Page 109 and 110:
Civil Law 97system on which the Act
Page 111 and 112:
Civil Law 99Some of the provisions
Page 113 and 114:
Civil Law 101The justification for
Page 115 and 116:
Civil Law 108On the contrary, as we
Page 117 and 118:
Civil Law 105to the contrary as ins
Page 119 and 120:
Civil Law 107patents, copyright, bi
Page 121 and 122:
Civil Law 109from the social duties
Page 123 and 124:
Civil Law 111early as 1872 that in
Page 125 and 126:
Civil Law 113in India. 16 However,
Page 127 and 128:
Civil Law 115Dealing with the quest
Page 129 and 130:
Civil Law 117textbooks was codified
Page 131 and 132:
Criminal Law 119criminal law were b
Page 133 and 134:
Criminal Law 121powers; though the
Page 135 and 136:
Criminal Law 123legal member, full
Page 137 and 138:
Criminal Law 125" It is working as
Page 139 and 140:
Criminal Law 127law. Stephen though
Page 141 and 142:
Criminal Law 129proposed that truth
Page 143 and 144:
Criminal Law 131calendar of crimes
Page 145 and 146:
Criminal Law 133religious life of I
Page 147 and 148:
Criminal Law 135have also in the In
Page 149 and 150:
Criminal Law 137a special meaning.
Page 151 and 152:
Criminal Law 139I think, depend upo
Page 153 and 154: Criminal Law 141at a conclusion whe
Page 155 and 156: Criminal Law 143and coercion. Some,
Page 157 and 158: Criminal Law 145Infancy: Moral deli
Page 159 and 160: Criminal Law 147It was laid down in
Page 161 and 162: Criminal Law 149provides expressly
Page 163 and 164: Criminal Law 151her husband who is
Page 165 and 166: Criminal Law 153by the ancient rule
Page 167 and 168: Criminal Law 155In India it is prov
Page 169 and 170: Criminal Law 157fall in Indian law
Page 171 and 172: Criminal Law 159wages war against t
Page 173 and 174: Criminal Law 161in the Indian Code.
Page 175 and 176: Criminal Law 163Large powers have b
Page 177 and 178: Criminal Law 165of certain offences
Page 179 and 180: Criminal Law 167as in England but t
Page 181 and 182: The Indian Constitution 169time to
Page 183 and 184: The Indian Constitution 171forces i
Page 185 and 186: The Indian Constitution 173the gene
Page 187 and 188: The Indian Constitution 175the cour
Page 189 and 190: The Indian Constitution 177Bills to
Page 191 and 192: The Indian Constitution 179head and
Page 193 and 194: The Indian Constitution 181of its c
Page 195 and 196: The Indian Constitution 183This vit
Page 197 and 198: The Indian Constitution 185authorit
Page 199 and 200: The Indian Constitution 187The comm
Page 201 and 202: The Indian Constitution 189of the p
Page 203: The Indian Constitution 191came int
Page 207 and 208: The Indian Constitution 195rendered
Page 209 and 210: The Indian Constitution 197remedies
Page 211 and 212: The Indian Constitution 199India ha
Page 213 and 214: The Indian Constitution 201establis
Page 215 and 216: The Indian Constitution 203expressi
Page 217 and 218: The Indian Constitution 205It is st
Page 219 and 220: The Indian Constitution 207in Engla
Page 221 and 222: The Indian Constitution 209it means
Page 223 and 224: The Indian Constitution 211otherwis
Page 225 and 226: The Indian Constitution 213to prote
Page 227 and 228: The Indian Constitution 215use, enj
Page 229 and 230: The Indian Constitution 217natural
Page 231 and 232: The Indian Constitution 219health a
Page 233 and 234: The Indian Constitution 221are not
Page 235 and 236: The Indian Constitution 223In its p
Page 237 and 238: Epilogue 225exactly for the same re
Page 239: Epilogue 227it, and professors medi
show all

The Common Law in India - College of Social Sciences and ...

Create successful ePaper yourself

Delete template?

Save as template?