Introduction to Legal Proces,

Topics: Law, Common law, Court Pages: 15 (4465 words) Published: March 14, 2013
State, Government and Law
1. State
An entity can be regarded as a state if it satisfies the following essentials of statehood 1. Population
2. Territory
3. Government
4. Sovereignty or Supremacy
State can be unitary (only one govt. throughout the territory); federal(distribution of powers between central and state governments); monarchy(hereditary king as the ruler); republic(the head of the state is not a monarch but an elected person) etc.

The ultimate aim of the state is the administration of justice. 2. Government
The agent or instrument of the state for the administration of justice. State is a larger body consisting of the entire population but government is smaller body consisting of few persons. Organs or wings of government and their functions

According to the doctrine of separation of power propounded by French scholar Montesque, government powers(law making, execution and adjudication) must be separated and must be vested in three different bodies; Legislature(law making); Executive(power to implement and execute laws); Judiciary(power to interpret and adjudicate). One shall not encroach into the field given to other. Montesque argued that if governmental powers are vested in a single body, it may result to arbiteriness.

But in modern welfare state a strict separation of powers is not possible. Organs of the Government
Legislature| Executive| Judiciary|
1. To make LawThe products are called Act or Statute; Enacted law or Supreme Legislation.E.g.: Dowry Prohibition Act 1961; Right to information Act 2005; IT Act 2000.| 1. To Frame policyE.g.: Economic policy of socialism, Privatization, etc. Constitution of India mandates socialism. The govt. policy was also socialism. So legislature made act to regulate private persons.E.g.: Foreign exchange regulation Act 1973, Monopolies and Restrictive Practices Prevention Act 1969. But in 1991 Narasimha Rao Govt. adopted new economic policy (NEP); LPG (Liberalization, Privatization, Globalization). Consequently legislature was compelled to change the law.E.g.: Competition Act replacing MRTP Act, Foreign exchange Management Act replacing FERA. 2. To execute law. 3. To make Law.Due to reasons like unnecessary delay in the part of legislature in passing of Bills; technical matter like cyber crime etc. the legislature gives some of its power to the executive. They also started making laws.The products are called subordinate legislation or Delegated legislation.E.g.: Rules, Orders, Notifications, Regulations, Circulars, and Ordinance etc. 4. AdjudicationE.g.: Debarring a student for malpractice in the examination by University; Cancellation of driving license in the case of drunken driving, Dismissing an employee on the ground of malpractice etc. | 1. AdjudicationE.g.: ‘A’ files a suit for eviction against ‘B’. The court has to decide whether ‘B’ is a trespasser. 2. To interpret law and thereby administer justice. (In India-by Supreme Court and High Courts)Interpretation is the process by which the judiciary gives effect to the intention of the law makers by giving meaning to the words used in the statute etc. By interpreting law judge has to administer justice.E.g.: Air India v. Nargesh Mirza Air India Service rules providing for the termination of service of Airhostess in the ground of pregnancy. SC held it unconstitutional. Insult to womanhood and hence void.|


General Principles of Interpretation
* Literal Rule/Dictionary Meaning Rule/Plane Meaning Rule/Litera Legis Rule Words must given the dictionary meaning.
* Logical Rule/Sentential egis Rule
Judge must apply his logic and give a logical meaning.
* Golden rule
Dictionary meaning can be given but if it results in absurdity, logical meaning must be given.
Lee v. Knapp
Motor vehicle Act provision requires that the driver has to stop his vehicle after an accident. If dictionary meaning is given to the...
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