Contract Law I Revision Study Notes for LL.

B First Year

UNIT I
Introduction to the Indian Contract Act, 1872
A contract may be defined as a legally binding agreement or, in the words of Sir Frederick Pollock: A promise or set
of promises which the law will enforce.

Section 2(h) of Indian Contract Act, 1872 defines contract as An agreement enforceable by law. Thus, formation of a
contract there must be an agreement, and the agreement should be enforceable by law.

The agreement will create rights and obligations that may be enforced in the courts. The normal method of
enforcement is an action for damages for breach of contract, though in some cases the court may order performance
by the party in default.

Enforceability of Contracts
Void Contracts: A void contract is one where the whole transaction is regarded as a nullity. It means that at
no time has there been a contract between the parties. Any goods or money obtained under the agreement must
be returned. Where items have been resold to a third party, they may be recovered by the original owner.
Voidable Contracts: A contract which is voidable operates in every respect as a valid contract unless and
until one of the parties takes steps to avoid it. Anything obtained under the contract must be returned, in so far as
this is possible. If goods have been resold before the contract was avoided, the original owner will not be able to
reclaim them.
Unenforceable Contracts: An unenforceable contract is a valid contract but it cannot be enforced in the
courts if one of the parties refused to carry out its terms. Items received under the contract cannot generally be
reclaimed.

Agreement, Contract and Proposal

Agreement definition [SECTION 2(e)]
Agreement is defined as every promise and every set of promises forming the consideration for each other. And a
promise is defined as an accepted proposal.

What agreements are contracts [ SECTION 10 ]

All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful
consideration and with a lawful object, and are not hereby expressly declared to be void.

Agreement becomes a contract if below conditions are met:

1. There is some consideration

2. The parties are competent to contract
3. Their consent is free
4. Their object is lawful

Proposal or Offer
Proposal definition [SECTION 2(a)]

When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining
the assent of that other to such act or abstinence, he is said to make a proposal.

Proposal terminology [SECTION 2(c)]

The person making the proposal is called the promisor, and the person accepting the proposal is called the
promisee

Communication of Proposal
Communication, acceptance and revocation of proposals [SECTION 3]

The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances,
respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which
he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.

Thus, a proposal may be communicated in any way which has the effect of laying before the offeree the willingness to
do or abstain. It may for example be done by words of mouth, or by writing, or even by conduct.

Promises, express and implied [SECTION 9]

In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far
as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.

An offer which is expressed by conduct is called an implied offer and the one which is expressed by words, written or
spoken, is called an express offer.

For example, a bid at an action is an implied offer to buy, stepping into an omnibus, and consuming eatables at a self-
service restaurant.

Case Law: Upton Rural District Council v Powell:

A fire broke out in the defendants farm. He believed that he was entitled to the free services of Upton Fire Brigade
and, therefore, summoned it. The Brigade put out the fire. It then turned out that the defendants farm was not within
free service zone of the Upton, which therefore, claimed compensation for the services. The court said: The truth of
the matter is that the defendant wanted the services of Upton; he asked for the services of Upton and Upton, in
response to that request, provided the services. Hence, the services were rendered on an implied promise to pay for
them.

Communication when complete [SECTION 4]

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

An offer cannot be accepted unless and until it has been brought to the knowledge of the person to whom it is made.
This principle enabled the Allahabad High Court in Lalman v Gauri Datt to deal with a matter involving a very crucial
question on this point.

Defendants nephew absconded from home. He sent his servant in search of the boy. When the servant had left, the
defendant by handbills offered to pay Rs.501 to anybody discovering the boy. The servant came to know of this offer
only when he had already traced the missing child. He, however, brought an auction to recover the reward. But his
action failed. BAERJI J explains: In my opinion a suit like the present can only be founded on a contract. In order to
constitute a contract, there must be an acceptance of an offer and there can be no acceptance unless there is
knowledge to the offer.

Intention to Contract
There is no provision in the Indian Contract Act requiring that an offer or its acceptance should be made with the
intention of creating a legal relationship. But in English law it is a settled principle that to create a contract there must
be a common intention of the parties to enter into legal obligations.

Case law: Balfour v Balfour

The defendant and his wife were enjoying leave in England. When the defendant was due to return to Ceylon, where
he was employed, his wife was advised, by reason of her health, to remain in England. The defendant agreed to send
her an amount of 30 pound a month for the probable expenses of maintenance. He did send the amount for some
time, but afterwards differences arose which resulted in their separation and the allowance fell into arrears. The wifes
action to recover the arrears was dismissed.

Family & Social matters

All that the law requires is that the parties must intend legal consequences. In the case of McGregor v McGregor,
illustration of a binding engagement between a husband and wife. Here a husband and wife withdrew their complaints
under the agreement by which the husband promised to pay her an allowance and she to refrain from pledging his
credit, the agreement was held to be a binding contract.

Business matters
Supreme Courts view
The Supreme Court noted the general proposition that in addition to the existence of an agreement and the presence
of consideration there is also the third contractual element in the form of intention of the parties to create legal
relations.

Letters of intent
A letter of intent merely indicates a partys intention to enter into a contract on the lines suggested in the letter. It may
becomes a preclude to a contract. However, where a letter stated that it would be followed by a detailed purchase
order which carried an arbitration clause, it was held that the letter was not a supply order and the arbitration clause
contained in it did not by itself fructify into an arbitration agreement.

General Offers
Acceptance by performing conditions, or receiving consideration [SECTION 8]
Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which
may be offered with a proposal, is an acceptance of the proposal.

Carlil v Carbolic Smoke Ball Co

A company offered by advertisement to pay 100 pound to anyone who contracts the increasing epidemic influenza,
colds or any disease caused by taking cold, after having used the ball according to printed directions. It was added
that 1000 pound is deposited with the Alliance Bank showing our sincerity in the matter. The plaintiff used the smoke
balls according to the directions but she nevertheless subsequently suffered from influenza. She was held entitled to
recover the promised reward.

General offer of continuing nature

Where a general offer is of continuing nature, as it was, for example, in the Smoke Ball case, it will be open for
acceptance to any number of persons until it is retracted. But where an offer requires some information as to a
missing thing, it is closed as soon as the first information comes in.

Offer and Invitation to Treat

An offer should be distinguished from an invitation to receive offers. When a man advertises that he has got a stock of
books to sell, or houses to let, there is no offer to be bound by any contract. Such advertisements are offers to
negotiate offers to receive offers offers to chaffer.

Harvey v Facey
The plaintiff relegraphed to the defendants, writing: Will you sell us Bumper Hall Pen? Telegraph lowest cash price.
The defendants replied also by telegram: Lowest price for Bumber Hall Pen, 900 pound. The plaintiff immediately
sent their last telegram stating: We agree to buy Bumper Hall Pen for 900 pound asked by you. The defendants
refused to sell the plot.

The Lordships pointed out that in their first telegram, the plaintiffs asked two questions, first, as to the willingness to
sell and, second, as to the lower price. The defendants answered only the second, and gave only the lowest price.
They reserved their answer as to the willingness to sell. Thus, they made no offer. The last telegram of the plaintiffs
was an offer to buy, but that was never accepted by the defendants.

Catalogues and display of goods: A shopkeepers catalogue of prices is not an offer, only an invitation to
offer.
Announcement to hold auction: An auctioneers announcement that specified goods will be sold by
auction on a certain day is not an offer to hold the auction.
Definiteness of proposal: A classified advertisement to the effect: cocks and hens 25s each has been
held to be not an offer to sell.
Free distribution of articles: Not a contract of sale

Acceptance Section 2(b)

Introduction of Acceptance Sec. 2(b)
When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A
proposal, when accepted, becomes a promise.

Thus acceptance is the assent given to a proposal, and it has the effect of converting the proposal into promise.

This is another way of saying that an agreement is an accepted proposal. Every agreement, in its ultimate analysis, is
the result of a proposal from one side and its acceptance by the other.

There are three factors in Acceptance:

1. Communication to Offeror
2. Communication to Acceptor
3. When Communication is not necessary

Communication of Acceptance
Acceptance by external manifestation or overt act.

SHAH J says An agreement does not result from a mere state of mind: intent to accept an offer or even a mental
resolve to accept an offer does not give rise to a contract. There must be some external manifestation of that intent
by speech, writing or other act.

Brogden v Metropolitan Railway co.

B had been supplying coal to a railway company without any formal agreement. B suggested that a formal agreement
should be drawn up. The agents of both the parties met and drew up a draft agreement. It had some blanks when it
was sent to B for his approval. He filled up the blanks including the name of an arbitrator and then returned it to the
company. The agent of the company put the draft in his drawer and it remained there without final approval having
been signified. B kept up his supply of coals but on the new terms and also received payment on the new terms. A
dispute having arisen B refused to be bound by the agreement.

Acceptance by Conduct

Mere mental assent to an offer does not conclude a contract either under the Indian Contract Act or in English Law.
Communication to Offeror Himself

Acceptance must be communicated to the offeror himself. A communication to any other person is as ineffectual as of
no communication has been made.

Caselaw: Felthouse v Bindley Offer cannot Impose Burden of Refusal

Facts The plaintiff offered by means of a letter to purchase his nephews horse. The letter said: If I hear no more
about the horse, I consider the horse mine at pount 33.15s. To this letter, no reply was sent. But the nephew told
the defendant, his auctioneer not to sell the horse as it was already sold to his uncle. The auctioneer by mistake put
up the horse for action and sold it. The plaintiff sued the auctioneer on the ground that under the contract the horse
had become his property and, therefore, defendants unauthorized sale amounted to conversion. But the action
failed.

Communication to Acceptor himself

Communication of acceptance should be from a person who has the authority to accept. Information received from an
unauthorised person is ineffective.

Caselaw: Powell v Lee

Facts The plaintiff was an applicant for the headmaster-ship of a school. The managers passed a resolution
appointing him, but the decision was not communicated to him. One of the members, however, in his individual
capacity informed him. The managers cancelled their resolution and the plaintiff sued for breach of contract.

When Communication Not Necessary

In certain cases, communication of acceptance is not necessary. The offeror may inform a particular mode of
acceptance, then all that the acceptor as to do is to follow that particular mode.

Caselaw: Carlil v Carbolic Smoke Ball

BOWEN LJ observed as: But there is this clear gloss to be made upon that doctrine, that as notification of
acceptance is required for the benefit of the person who makes the offer, he may dispense with notice to himself
and there can be no doubt that where the offeror expressly or impliedly intimates a particular mode of acceptance as
sufficient to make the bargain binding it is only necessary for the other person to follow the indicated method of
acceptance; and if the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to
act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient
acceptance without notification.

Mode of Communication
Acceptance should be made in prescribed manner

Acceptance has to be made in the manner prescribed or indicated by the offeror. An acceptance given in any other
manner may not be effective. particularly where the offeror clearly insists that the acceptance shall be made in the
prescribed manner. For example,

A offered to buy flour from B requesting that acceptance should be sent by the wagon which brought the offer. B sent
his acceptance by post, thinking that this would reach the offeror more speedily. But the letter arrived after the time of
the wagon. A was held to be not bound by the acceptance.

Absolute and Unqualified

Section 7: Acceptance Must Be Absolute
In order to convert a proposal into a promise, the acceptance must (1) be absolute and unqualified, (2) be
expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be
accepted.

Effect of departure from prescribed manner

A departure from that manner does not of itself invalidate the acceptance. A duty is cast on the offeror to reject such
acceptance within reasonable time.
1. a minor departure from the prescribed mode of communication should not upset the fact of acceptance
provided that the communication is made in an equally expeditious way.
2. for, in a case, where the offeree was told to reply by by return of post it was said by the Court of Exchequer
Chamber that a reply sent by some other method equally expeditious would constitute a valid acceptance.

Where no manner prescribed: reasonable and usual manner

Where no mode of acceptance is prescribed, acceptance must be expressed in some usual and reasonable
manner. As per Indian Contract Law, post is a reasonable mode.

When contract concluded (Postal Communication)

When the parties are at a distance and are contracting through post or by messengers, the question arises when is
the contract concluded.

Household Fire & Accident Insurance Co v Grant

The defendant in this case had applied for allotment of 100 shares in the plaintiff company. A letter of allotment
addressed to the defendant at his residence was posted in due time, but it never reached the defendant. Nevertheless
he was held bound by the acceptance.

Section 4 Communication when complete

The only difference that the section makes is in the position of the acceptor. In England when a letter of acceptance is
posted, both the offeror and the acceptor become irrevocably bound. But in India, the acceptor does not become
bound by merely posting his acceptance. He becomes bound only when his acceptance comes to the knowledge of
the proposer. The gap of time between the posting and the delivery of the acceptance can be utilised by the acceptor
for revoking his acceptance by a speedier communication which will overtake the acceptance.

Counter proposals
An acceptance containing additions, limitations, or other modifications shall be rejection of the offer and shall
constitute a counter-offer.

However, a reply to an offer which purports to be an acceptance but which contains additional or different terms which
do not materially alter the terms of the offer shall constitute an acceptance unless the offeror promptly objects to the
discrepancy; if he does not object, the terms of the contract shall be the terms of the offer with the modifications
contained in the acceptance.
If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the
proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be
accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance.

Partial acceptance

Acceptance should be of the whole of the offer. The offeree cannot accept a part of its terms which are favourable to
him and reject the rest. Such an acceptance is another kind of counter proposal and does not bind the offeror.

Inquiry into terms of proposal

A mere inquiry into the terms of a proposal is not the same thing as a counter-proposal. On acceptance of the
proposal, the contract will be created on the basis of the terms and conditions of the original proposal including
arbitration clause.

Acceptance with condition subsequent

If an acceptance carries a condition subsequent, it may not have the effect of a counter-proposal. Thus, where an
acceptance said: terms accepted, remit cash down Rs.25,000 by February 5, otherwise acceptance subject to
withdrawal, this was not a counter-proposal, but an acceptance with a warning that if the money was not sent the
contract would be deemed to have been broken.

Acceptance of counter proposal

Even where the acceptance of a proposal is not absolute and unqualified the proposer may become bound, if, by his
subsequent conduct, he indicates that he has accepted the qualifications set up.

Hargopal v Peoples Bank of Northern India

An application for shares was made conditional on an undertaking by the bank that the applicant would be appointed
a permanent director of the local branch. The shares were allotted to him without fulfilling the condition. The applicant
accepted the position as a shareholder by accepting dividends, filing a suit to recover it and by pledging his shares.

It was, therefore, held that he could not content that the allotment was void on the ground of non-fulfillment of the
condition as he had by his conduct waived the conditions.

Provisional acceptance

An acceptance is sometimes made subject to final approval. A provisional acceptance of this kind does not ordinarily
bind either party until the final approval is given.

Acceptance and withdrawal of tenders

A tender is in the same category as a quotation of prices. It is not an offer. When a tender is approved, it is converted
into a standing offer. A contract arises only when an order is placed on the basis of the tender. These principles were
laid down by the Bombay High Court in the well-known case of Bengal Coal Co Ltd v Homee Wadia & Co.

Lapse of Offer
1. Notice of revocation
2. Lapse of Time
3. By failure to accept condition precedent
4. By death or insanity of offerer

Revocation of Acceptance
Section 5: Revocation of proposals and acceptances
A proposal may be revoked at any time before the communication of its acceptance is complete as against the
proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the acceptance is complete as against the
acceptor, but not afterwards.

NOTICE OF REVOCATION
Withdrawal before expiry of fixed period
Where an offeror gives the offeree an option to accept within a fixed period, he may withdraw it even before the expiry
of that period.

CASE LAW: Alfred Schonlank v. Muthunayna Chetti

The defendant left an offer to sell a quantity of indigo at the plaintiffs office allowing him eight days time to give his
answer. On the 4th day however the defendant revoked his proposal. The plaintiff accepted it on the 5th day. Holding
the acceptance was useless.

Agreement to keep Offer open for Specified Period

Where the agreement to keep the offer open for a certain period of time is for some consideration, the offeror cannot
cancel it before the expiry of that period.

CASE LAW: Mountford v Scott

Communication of Revocation should be from Offerer Himself

It is necessary that the communication of revocation should be from the offeror or from his duly authorised agent. But
it has been held in the case of Dickinson v. Dodds, that it is not enough if the offeree knows reliably that the offer
has been withdrawn.

Revocation of General Offers

Where an offer of a general nature is published through newspapers, it can be withdrawn by the same media and the
revocation will be effective even if a particular person, subsequent to the withdrawl, happened to perform its terms in
ignorance of the withdrawal.

CASE LAW: Skarsm Ramanathan v NTC Ltd

Superseding proposals by Fresh Proposal

Where before acceptance a proposal is renewed in some parts of it and not in its entirety as proposed earlier and the
letter purports it to supersede the earlier communication, such proposal is no longer available for acceptance.

CASE LAW: Banque Paribas v Citibank NA

Cancellation of allotment of land

An allotment of land was made under the order of a Development Authority.

CASE LAW: Rochees Hotels P Ltd v Jaipur Development Authority

Revocation of Bid

In the case of an auction, the assent is signified on the part of the seller by knocking down the hammer. A bid may
be retracted before the hammer is down.

CASE LAW: Union of India v Bhimsen Walaiti Ram

A liquor ship was knocked down to a bidder at a public auction. This was subject to the confirmation by the Chief
Commissioner who had the power before granting the licence to inquire into the financial condition of the bidder. The
bidder had to pay one-sixth part of the price immediately and in case of any default on his part the Government had
the power to re-auction the shop and the shortfall, if any, was recoverable from the bidder. He failed to pay one-sixth
part and, therefore, the Chief Commissioner did not confirm the bid and ordered resale. Resale realized much less
than the original bid and the question of bidders liability to pay the shortfall arose.
The court said: It is not disputed that the Chief Commissioner had disapproved of the bid offered by the respondent.
If the Chief Commissioner had granted sanction in favor of the respondent, then there would have been a completed
transaction and he would have been liable for any shortfall on the resale.

LAPSE OF TIME

An offer lapses on the expiry of the time, if any, fixed for acceptance. Where an offer says that it shall remain open for
acceptance up to a certain date, it has to be accepted within that date. For example, where an offer was to last until
the end of March and the offeree sent a telegram accepting the offer on 28th March which was received by the offeror
on 30th March, it was held that the option was duly exercised.

FAILURE TO ACCEPT CONDITION PRECEDENT

Where the offer is subject to a condition precedent, it lapses if it is accepted without fulfilling the condition. Where a
salt lake was offered by way of lease on deposit of a sum of money within a specified period, and the intended lessee
did not deposit the amount for 3 long years, it was held that this entailed cancellation of the allotment.

DEATH OR INSANITY OF OFFEROR

An offer lapses on the death or insanity of the offeror, provided that the fact comes to the knowledge of the offeree
before he makes his acceptance.

In the case of Dickinson v Dodds, it was held that an offer cannot be accepted after the death of the offeror.

SECTION 6: Revocation how made

A proposal is revoked

1. by the communication of notice of revocation by the proposer to the other party;

2. by the lapse of the time prescribed in such proposal for its acceptance or, if no time is so prescribed, by the
lapse of a reasonable time, without communication of the acceptance;
3. by the failure of the acceptor to fulfill a condition precedent to acceptance; or
4. by the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the
acceptor before acceptance.

Revocation of Acceptance
According to English law an acceptance once made is irrevocable. In the words of Anson: Acceptance is to offer what
a lighted match is to a train of gunpowder. Both do something which cannot be undone. This rule is obviously
confined in its operation only to postal acceptance. It is suggested in Anson that in other cases an acceptance can
be revoked at any time before acceptance is complete, provided, of course, that the revocation itself is communicated
before the acceptance arrives.
In India, on the other hand, acceptance is generally revocable. An acceptor may cancel his acceptance by a speedier
mode of communication which will reach earlier than the acceptance itself. Section 5 is the relevant provision.

Standard Form Contracts

Exploitation of weaker party
Protective Devices
Reasonable notice
Notice should be contemporaneous with contract
Theory of fundamental breach
Strict construction
Liability in tort
Unreasonable terms
Consideration [SECTION 2 (d) and SECTION 25]
Section 25 of the Indian Contract Act, 1872 starts with a declaration that an agreement made without consideration is
void. Consideration is a price of the promise.

Definitions
In the words of Pollock, Consideration is the price for which the promise of the other is bought, and the promise thus
given for value is enforceable. Another simple definition is by Justice Patterson: Consideration means something
which is of some value in the eyes of the law.. It may be some benefit to the plaintiff or some detriment to the
defendant.

Section 2(d) of the Indian Contract Act defines consideration as:

When, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or
abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is
called a consideration for the promise.

It means price for which the promise of the other is bought a valuable considerations a price of the promise some
of value received by the promisee as an inducement of the promise quid pro quo ( something in return) may be of
some benefit to the plaintiff or some detriment to the defendant.

Abdul Aziz Vs. Masum Ali

A promise to subscribe Rs.500 for re-building a mosque not fulfilled secretary of mosque committee filed a suit for
enforcement of promise Held, the promise not enforceable as no consideration in the sense of benefit for the
promisor the secretary of the committee suffered no detriment as nothing has been done to carry out the repairs
no contract.

Gousmohoddin Vs. Appasahib

Suit filed by landlord L against tenant T for possession of premises and arrears of rent suit decreed in favour in
execution, attachment order of movable property of T In consideration of T agreeing not to appeal against the
decree, L allowed one months time to pay Held, valid consideration valid agreement.

Essential Elements of a Valid Consideration

1. It must move at the desire of promisor
2. It may move from promisee or any other person (privity of consideration)
3. It must be real, not illusory
4. It need not be adequate
5. It may be past, present or future
6. It must not be illegal, immoral or opposed to public policy

Promissory Estoppel

The doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the
latter has reasonably relied on that promise.

The doctrine of promissory estoppel was first developed in Hughes v. Metropolitan Railway Co [1877] but was lost
for some time until it was resurrected by Lord Denning in the controversial case of Central London Property Trust
Ltd v. High Trees House Ltd [1947].

Promissory estoppel requires:

1. an unequivocal promise by words or conduct

2. evidence that there is a change in position of the promisee as a result of the promise (reliance but not
necessarily to their detriment)
3. inequity if the promisor were to go back on the promise

In general, estoppel is a shield not a sword it cannot be used as the basis of an action on its own. It also does not
extinguish rights.

The general rule is that when one party agrees to accept a lesser sum in full payment of a debt, the debtor has given
no consideration, and so the creditor is still entitled to claim the debt in its entirety. This is not the case if the debtor
offers payment at an earlier date than was previously agreed, because the benefit to the creditor of receiving payment
early can be thought of as consideration for the promise to waive the rest of the debt. This is the rule formulated
in Pinnels Case (1602)

At the desire of the promisor

An act or abstinence which is to be a consideration for the promise must be done or promised to be done in
accordance with the desire of the promisor.

Durga Prasad v Baldeo

Facts: The plaintiff constructed some shops in a market under the orders of the Collector. The defendant occupied a
shop and promised to pay some commission to the plaintiff and did not pay. In an action against the defendant, it was
held not maintainable.

Court Held: The only ground for the making of the promise is the expense incurred by the plaintiff in establishing the
Ganj (market) but it is clear that anything done in that way was not at the desior of the defendants so as to constitute
consideration. The act was the result not of the promise but of the Collectors order.

Thus to constitute a good consideration, act or abstinence must be at the desire of the promisor.

Acts done at request:

An act done at the promisors desire furnishes a good consideration for his promise even though it is of no personal
significance or benefit to him.

Kedar Nath v Gorie Mohamed

It was thought advisable to erect a town hall at Howrah provided sufficient subscription could be got together for the
purpose. To this end the Commissioners of Howrah municipality set out to work to obtain necessary funds by public
subscription. The defendant was a subscriber to this fund for Rs.100 having signed his name in the subscription book
for the amount. On the faith of the promised subscriptions, the plaintiff entered into a contract with a contractor for the
purpose of building the hall. But the defendant failed to pay the amount and contended that there was no
consideration for this promise.

He was held liable. Persons were asked to subscribe knowing the purpose for which the money was to be applied,
they knew that on the faith of their subscription an obligation was to be incurred to pay the contractor for the work. The
promise is: In consideration of your agreeing to enter into a contract to erect, I undertake to supply money for it. The
act of the plaintiff in entering into contract with the contractor was done at the desire of the defendant (the promisor)
so as to constitute consideration within the meaning of Section 2(d).

Promises of charitable nature

Doraswami Iyer v Arunachala Ayyar

Facts: The repair of a temple was in progress. As the work proceeded, more money was required and to raise this
money subscriptions were invited and a subscription list raised. The defendant put himself down on the list for Rs. 125
and it was to recover this sum that the suit was filed. The plaint found the consideration for the promise as a reliance
on the promise of the subscriber that they have incurred liabilities in repairing the temple.
Judgment: The learned judge held that there was no evidence of any request by the subscriber to the plaintiff to do
the temple repairs. Since, the temple repairs were already in progress when the subscriptions were invited. The action
was not induced by the promise to subscribe but was rather independent of it. Hence, no recovery was allowed.

Unilateral promises

A unilateral promise is a promise from one side only and is intended to induce some action by the other party. The
promisee is not bound to act, for he gives no promise from his side. But if he carries out the act desired by the
promisor, he can hold the promisor to his promise. An act done at the request of the offeror in response to his
promise is consideration, and consideration in its essence is nothing else but response to such a request.

Abdul Aziz v Masum Ali

The defendant promised Rs.500 to a fund started to rebuild a mosque but nothing had been done to carry out the
repairs and reconstruction. The subscriber was, therefore, held not liable.

Revocation of unilateral promises

Errington v Errington

Facts: The owner of a house had mortgaged it. The house was in the occupation of his son and daughter-in-law. He
told them that the house would become their property if they paid off the mortgage debt in installments and they
commenced payment.

Judgement: The fathers promise was a unilateral contract, a promise of the house in return for their act of paying the
installments. It could not be revoked by him once the couple entered on performance of the act, but it would cease to
bind him if they left it incomplete and unperformed.

Promissory Estoppel and government agencies

InPournami Oil Mills v State of Kerala, the Government was not permitted to go back on its earlier promise of wider
exemption from sales tax in pusuance of which certain industries were set up. A subsequent notification curtailing the
exemption was held to be applicable to industries established after the notification. A promise which is against public
policy or in violation of a statutory prohibition cannot be the foundation of an estoppel.

Estoppel of licensee

A person who had acquired title to the land of a Council by adverse possession, agreed subsequently to hold the
same under a term license from the Council. On the expiry of the term, the Council told him to hand over possession
He tried to assert his title by adverse possession. He was not allowed to do so. Whatever rights he acquired became
substituted under the new arrangement which he voluntarily accepted. The new arrangement constituted a
promissory estoppel against him.

Privity of Contract and of Consideration

Promisee or any other person

It means that as long as there is a consideration for a promise, it is immaterial who has furnished it. It may move from
the promisee, or, if the promisor has no objection, from any other person.

Dutton v Poole

Facts: A person had a daughter to marry and in order to provide her a marriage portion, he intended to sell a wood of
which he was possessed at the time. His son (the defendant) promised that if the father would forbear to sell at his
request he would pay the daughter 1000. The father accordingly forbore but the defendant did not pay. The
daughter and her husband sued the defendant for the amount.
Judgment: The court held that if a man should say, Give me a horse, I will give your son 10, the son may bring the
action, because the gift was upon the consideration of a profit to the son, and the father is obliged by natural affection
to provide for his children. There was such apparent consideration of affection from the father to his children, for
whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children.

The whole object of the agreement was to provide a portion to the plaintiff. It would have been highly inequitable to
allow the son to keep the wood and yet to deprive his sister of her portion. He was accordingly held liable.

Position of beneficiary who is not party

Tweddle v Atkinson as per English Law

Facts: The plaintiff was to be married to the daughter of one G and in consideration of this intended marriage G and
the plaintiffs father entered into a written agreement by which it was agreed that each would pay the plaintiff a sum of
the money. G failed to do so and the plaintiff sued his executors.

Court Held: Although the sole object of the contract was to secure a benefit to the plaintiff, he was not allowed to sue
as the contract was made with his father and not with him. It was held that no stranger to the consideration can take
advantage of a contract, although made for his benefit.

The case laid the foundation of what subsequently came to be known as the doctrine of Privity of contract, which
means a contract is a contract between the parties only and no third person can sue upon it even if it is avowedly
made for his benefit.

Dunlop Pneumatic Tyre Co v Selfridge & Co.

Facts: Plaintiffs (Dunlop & Co) sold certain goods to one Dew & Co and secured an agreement from them not to sell
the goods below the list price and that if they sold the goods to another trader they would obtain from him a similar
undertaking to maintain the price list. Dew & Co sold the motor tyres to the defendants (Selfridge & Co) who agreed
not to sell the tyres to any private customer at less than the list prices. The plaintiffs sued the defendants for breach of
this contract.

Court Held: Assuming that the plaintiffs were undisclosed principals, no consideration moved from them to the
defendants and that the contract was unenforceable by them. Only a person who is a party to a contract can sue on it.
It cannot be conferred on a stranger to a contract as a right to enforce the contract in personam. Also if a person with
whom a contract not under seal has been made is to be able to enforce it, consideration must have given by him.

Fundamental propositions of English law

1. Consideration must move from the promisee and the promisee only.
2. A contract cannot be enforced by a person who is not a party to it even though it is made for his benefit.

Privity of consideration

In India, the view is opposite of the fundamental propositions of English law. Acording to Section 2(d), it is not
necessary that consideration should be funished by the promisee. A promise is enforceable if there is some
consideration for it and it is quite immaterial whether it moves from the promisee or any other person.

Chinnaya v Ramayya

An old lady, by deed of gift, made over certain landed property to the defendant, her daughter. By the terms of the
deed, which was registered, it was stipulated that an annuity of Rs.653 should be paid every year to the plaintiff, who
was the sister of the old woman. The defendant on the same day executed in plaintiffs favour an agreement
promising to give effect to the stipulation. The annuity was however not paid and the plaintiff sued to recover it.

It was held that the deed of gift and the defendants promise to pay the annuity were executed simultaneously and,
therefore, they should be regarded as one transaction and there was sufficient consideration for that transaction.
Privity of contract

The rule of Privity of contract meant a stranger to contract cannot sue has taken firm roots in the English Common
Law. But it has been generally criticised.

Lord Denning observed that where a contract is made for the benefit of a third person who has a legitimate interest to
enforce it, it can be enforced by the third person in the name of the contracting party or jointly with him or, if he
refuses to join, by adding him as a defendant. The third person has a right arising by way of contract and his interest
will be protected by law.

Beswick v Beswick

Facts: B was a coal merchant. The defendant was assisting him in his business. B entered into an agreement with
the defendant by which the business was to be transferred to the defendant. B was to be employed in it as a
consultant for his life and after his death, the defendant was to pay to his widow an annuity of 5 per week, which was
to come out of the business. After Bs death, the defendant paid Bs widow only one sum of 5. The widow brought an
action to recover the arrears of the annuity and also to get specific performance of the agreement.

Court Held: That she was entitled to enforce the agreement. Thus, the plaintiff was allowed to enforce the agreement
in her personal capacity, although she was not a party to it and it was considered not necessary to infer a trust in
favour of the plaintiff.

Position in India: decisions following English law

Decisions not following English law
Supreme Court upholds Privity

Exceptions to Privity rule

Beneficiaries under trust or charge or other arrangements: A person in whose favour a charge or other
interest in some specific property has been created may enforce it though he is not a party to the contract.
Marriage settlement, partition or other family arrangements: Where an agreement is made in
connection with marriage, partition or other family arrangement and a provision is made for the benefit of a
person, he may take advantage of that agreement although he is no party to it.
Acknowledgement or estoppel: Where by the terms of a contract a party is required to make a payment to
a third person and he acknowledges it to that third person, a binding obligation is incurred towards him.
Acknowledgment may be express or implied.
Covenants running with land: The rule of privity may also be modified by the principles relating to transfer
of immovable property.

Has Done or Abstained from Doing

Past Consideration

The promise is to pay for a wholly past act and is no more than an expression of gratitude. The past act may explain
why the promise was given and may be a motive for the promise, but furnishes no legal consideration.

McArdle, In re:

Facts: A effected certain improvements to property. The ultimate beneficiaries of the property signed a document
declaring that: In consideration of your carrying out certain alterations and improvements, we the beneficiaries shall
repay to you the sum of 488 in settlement of the amount spent on such improvements.

Court Held: That as the work had all been done and nothing remained to be done by the promisee at all, the
consideration was wholly past consideration and the beneficiaries agreement for the repayment to her out of the
estate was nudum pactum, a promise with no consideration to support it. Thus, the action to enforce the promise was
rejected.
 Past act at request good consideration: Exception to the past consideration in the English law is that a
past act done at request will be good consideration for a subsequent promise. If the voluntary courtesy were
moved by a request of the party that gives the promise, it will bind, for the promise.
Other exceptions are: A promise to pay a time-barred debt and a negotiable instrument issued for a past
consideration are both valid.

Position in India

In India, a past consideration may arise in two ways. It may consist of services rendered at request but without any
promise at the time or it may consist of voluntary services.

Past voluntary service: A voluntary service means a service rendered without any request or promise and
there is a subsequent promise to pay for the same. E.g., If A saves B from drowning and B later promises A a
reward. In India, the promise would be enforceable by virtue of Section 25(2) which provides that a promise to
compensate wholly or in part, a person who has already voluntarily done something for the promisor is
enforceable.
Past service at request: b

Past and executed consideration

Executory Consideration

Such Act, Abstinence or Promise is called Consideration

Consideration must be of some value

Consideration as defined in the Act, means some act, abstinence or promise on the part of the promisee or any other
which has been done at the desire of the promisor. E.g.,

A promises to give his new Rolls-Royce car to B, provided B will fetch it from the garage.

The act of fetching the car cannot by any stretch of imagination be called a consideration for the promise. Even
though it is the only act, the promisor desired the promisee to do. Such an act no doubt satisfies the words of the
definition, but it does not catch its spirit. It is for this reason that English common law insisted that consideration must
be of some value in the eyes of the law. It must be real and not illusory, whether adequate or not as long as the
consideration is not unreal, it is sufficient if it be of slight value only.

Value need not be adequate (adequacy of consideration)

It is not necessary that consideration should be adequate to the promise. The courts cannot assume the job of
settling what should be the appropriate consideration for a promise. It is up to the parties.

Inadequacy as evidence of imposition

The act in Explanation 2 to Section 25 states that inadequacy of consideration may be taken into account by the
court in determining the question whether the consent of promisor was freely given. E.g.,

A agrees to sell a horse worth Rs.1000 for Rs.10. A denies that his consent to the agreement was freely given. The
inadequacy of the consideration is a fact which the court should take into account in considering whether or not As
consent was freely given.

Forbearance to sue

Forbearance to sue has always been regarded as valuable consideration. It means that the plaintiff has a certain right
of action against the defendant or any other person and on a promise by the defendant, he refrains from bring the
action.

Compromise good irrespective of merits

Compromise of a pending suit is a good consideration for the agreement of compromise. But the dispute should
be bona fide. A compromise is a good consideration irrespective of merits of the claim of either side and even where
there is some doubt in the minds of the parties as to their respective rights.

Performance of Existing Duties

Performance of legal obligations

Consideration must be something more than what the promisee is already bound to do. Performance of a legal duty is
no consideration for a promise.

Performance of contractual obligations

A. Pre-existing Contract with Promisor: Compliance with legal obligation imposed by a contract with the
promisor can be no consideration for a promise.
Promise to pay less than amount due: A promise to pay less than what is due under a contract cannot be
regarded as a consideration.

Exceptions to the Rule in Pinnels case

1. Part-payment by Third Party: Part-payment by a third party may be a good consideration of the whole of
the debt.
2. Composition:
3. Payment before time:
4. Promissory estoppel:

Position under Indian Contract Act different

B. Pre-existing Contract with Third Party

Consideration and motive

Consideration should be distinguished from motive or a pious desire to fulfil an obligation. Motive is not the same
thing with consideration.

Thomas v Thomas

Facts: A testator, on the death of his death, had verbally said in front of witnesses that he was desirous that his wife
should enjoy certain premises for her life. The executors, who were also the assignees, in consideration of such
desire and of the premises, agreed with the widow to convey the premises to her provided she would pay to the
executors the sum of 1 pound yearly towards the ground rent and keep the said house in repair.

Court Held: On the question of consideration for the agreement between the executors and the widow the court
pointed out that the motive for the agreement was, unquestionably, respect for the wishes of the testator. But that was
no part of the legal consideration for the agreement. Motive should not be confounded with consideration. The
agreement was, however, held to be binding as the undertaking to pay the ground rent was a sufficient consideration.

Exceptions to Consideration
Contracts under seal in English Law

In English law a contract under seal is enforceable without consideration. In the words of Anson: English law
recognises only two kinds of contract, the contract made by deed that is under seal, which is called a deed or
speciality, and the simple contract. A contract under seal means a contract which is in writing and which is signed,
sealed and delivered.

Exceptions under S.25, Contract Act in India

25. An agreement made without consideration is void unless

(1) it is in writing and registered

(2) or is a promise to compensate for something done
1. Natural love and affection: A written and registered agreement based on natural love and affection
between near relatives is enforceable without consideration. E.g., A family settlement between a man and his wife
was made for providing maintenance to wife. This was held to be enforceable because it was meant for deriving
satisfaction and peace of mind from family harmony.
2. Past voluntary service: A promise to compensate wholly or in part, a person who has already voluntarily
done something for the promisor, is enforceable.
3. Time-barred debt: A promise to pay a time-barred debt is enforceable. The promise should be in writing. It
should also be signed by the promisor or by his agent generally or specially authorised in that behalf.

Gift actually made [S. 25 (Expln. I)]

The provisions as to consideration do not affect, as between donor and donee, the validity of any gift which has
actually been made. A gift of movables which has been completed by delivery and gift of immovable which has been
perfected by registration cannot be questioned as to their validity only on the ground of lack of consideration. They
may be questioned otherwise. Where a gift of property was made by registered deed and attested by two witnesses, it
was not allowed to be questioned by the donor on the ground that she was the victim of fraud which she was not able
to establish.

Unlawful Consideration and its effect

Contractual Ability
Electronic Documents as Web Pages
Digital Certificate as Entry passes
Time and Place of Contract
Secured Custody of Electronic Records
Class Notes on Constitutional Law Unit II (1st Sem / 3 year
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Directive Principles of State Policy Art. 36 51

Definition of State Art. 36

Application of the principles Art. 37

State to secure a Social order for the Promotion of Welfare of the People Art. 38

Certain Principles of Policy to be followed by the State Art. 39

Equal Justice and Free Legal Aid Art. 39-A

Organization of Village Panchayats Art. 40

Right to Work, to Education and to Public Assistance in Certain Cases Art. 41

Provision for Just and Humane Conditions of Work and Maternity Relief Art. 42

Living Wage, etc., for Workers Art. 43

Participation of Workers in Management of Industries Art. 43-A

Uniform Civil Code for the Citizens Art. 44

Organization of Agriculture and Animal Husbandry Art 48

Protection and Improvement of Environment and Safeguarding of Forests and Wild Life
Art. 48-A
Protection of Monuments and Places and Objects of National Importance Art. 49

Separation of Judiciary from Executive / Independence of Judiciary Art. 50

Promotion of International Peace and Security Art. 51

The Fundamental Duties Art. 51-A

President of India, Governor and Council of Ministers

The Executive The President and Vice President Arts. 52-78, 123

The President Appointment, Removal & Powers of the President Arts. 52-78, 123

Distinction between the Indian President and the American President

The Election of the President of India Arts. 54 62

The Vice-President Arts. 63 69

The Attorney-General for India Art. 76

To Aid and Advise the President the Collective Responsibility / the Council of Ministers
Arts. 74 & 75

Conduct of Government Business Arts 77 & 78

The Executive the Governor Arts. 153 167 & 213

The Council of Ministers to Aid and Advise the Governor Arts. 163 & 164

The Advocate-General for the State Arts. 165

Parliamentary Government Art. 79 122

The General Provisions relating to Parliament Arts. 79 122

Anti-defection Law / Disqualification of Members Arts. 101 104 & 10th Schedule

Powers, Privileges and Immunities of Parliament and its members Arts. 105 106 and of
the State Legislative Assemblies and their members Arts. 194 195

Legislative Procedure of the Parliament Arts. 107 122

Bicameralism
UNIT III
Judicial Process Under the Constitution
Nature of Judicial Review
The Constitution if the Supreme law of the land and any law which is inconsistent with the constitution is termed to be
void. Judicial Review is a term refers to the power that can be utilised for judicially reviewing an enactment passed
by the Legislature, or a decision of an administrator, an order of a quasi-judicial authority and/or in a given case, a
decision of the judiciary.

The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In this case,
justice John Marshall held that judiciary has inherent power to review actions by legislature even if no explicit
provision is given in the constitution.

Judicial Review Art. 32, 226 and 227

In India, by reason of Arts. 32 and 136, the Supreme Court can exercise the power of judicial review. Similarly, under
Arts. 226 and 227 High Courts have a power of judicial review. No other Court has been conferred with such a
power. In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in SC by art 32
and High Court by art 226 over legislative action is a basic feature.
Judicial Review has two prime functions

1. Legitimizing government action; and

2. To protect the Constitution against any undue encroachment by the Government

Court system in India

Supreme Court
High Court
Sessions Court
Assistant Sessions Judge
Chief Metropolitan Magistrate
Chief Judicial Magistrate
Metropolitan Magistrate
Special Metropolitan Magistrate

Supreme Court and High Court Judges Appointments, conditions of

service
The supreme court, being the guardian of the constitution, ensures that the fundamental rights of the citizens are not
violated. To let the judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that
ensure the independence of the judiciary.

Composition of the Supreme Court

Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other judges. The number of other
judges has now been increased to 25.

To be appointed as a judge of the supreme court, a person must be a citizen of India and

has been a Judge of a High Court for 5 yrs .

has been an advocate of a High Court for 10 yrs.
in the opinion of the president, a distinguished Jurist.

Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the
key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president
after consulting with the judges of the supreme court and the high courts. Further, that while appointing other judges,
the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete
discretionary powers in the appointment of the judges.

Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However, this convention
was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a
blatant assault on the independence of the judiciary. The govt. pleaded that the word consult does not mean that the
president is bound by the advise. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge from one
high court to another under Article 222, SC held that the President has the right to differ from the advice provided by
the consultants.

The 11th Presidential Reverence sought clarification on certain doubts over the consultation process to be adopted by
the Chief Justice of India as stipulated in the 1993 case relating to judges appointment and transfer opinion.

The following propositions were laid down:

1. CJI should consult a collegium of four senior most Judges of the Apex Court
2. The Collegium should make the decision in consensus and unless the opinion of the collegium is in
conformity with that of the CJI, no recommendation is to be made
3. In the transfer of HC Judges, in addition to the collegium of four senior most Judges, the CJI was obliged to
consult the CJ of two High Courts.
4. In regard to the appointment of HC Judges, the CJI was required to consult only two senior most Judges of
the Apex Court

Case Law:

This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982. In
this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of
high courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on
seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made
only if there is a consensus among them.

As of now, due to the decision in this case, the appointment of the judges in SC and High Courts are fairly free from
executive control. This is an important factor that ensure the independence of the judiciary.

Jurisdiction of the Supreme Court

The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.

Art 129 Court of Record

SC is a court of record and has all the powers including power to punish for civil or criminal contempt of court. In the
case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish for contempt of any
subordinate court in India as well.

In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for failing to
deliver on his promise not to allow any construction in disputed area.

Art 131 Original Jurisdiction

The SC has original jurisdiction in any dispute arising between:

Center and one or more states.

Center and one or more states on one side and one or more states on another.
two or more states.

Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a question of law
or fact on which a legal right depends. Further, the suit cannot be because of any commercial relation or political
relation between the two parties.

In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of Karnataka against
the Govt. regarding its objection to the appointment of an inquiry commission is maintainable.

Art 132 Appellate Jurisdiction Constitutional

The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout the country.
A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the decision of the lower
courts.

Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied:

1. The order appealed must be against the judgement of a high court in civil, criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.

Krishnaswamy vs Governer General in Council 1947 If there is a difference of opinion among High Courts and if
there is no direct decision by SC on that point, it is a substantial question of law that can permit appeal in SC.

Art 143 Advisory Jurisdiction

Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen or is likely to
arise and that the question is of such public importance that expedient opinion of the SC is required, then he may
refer it to the SC. The SC, after such hearing as it may deem fit, will report back to the president. Under 143(2), the
SC is can be asked to give opinion even on matters not permitted under art 131.

There is no similar provision in the American constitution. In US, the court can give ruling only on concrete cases.

In re Kerala Education Bill 1953, SC has interpreted the word may in clause 1 as it is not bound to give its opinion.
If it has a good reason, it may refuse to express its opinion.

In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are binding on all
courts in the country.

In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its opinion on
whether a temple existed on the disputed location because it was superfluous, unnecessary, and favors a particular
religion.

Public Interest Litigation (PIL)

The Supreme Court has developed new methods of dispensing justice to the masses through the public interest
litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest litigation attained a new
dimension comments that the supreme court has developed several new commitments. It has carried forward
participative justice. It has laid just standards of procedure. It has made justice more accessible to citizens.

Judicial Activism
The term judicial activism is intended to refer to, and cover, the action of the court in excess of, and beyond the
power of judicial review. From one angle it is said to be an act in excess of, or without, jurisdiction. The Constitution
does not confer any authority or jurisdiction for activism as such on the Court.

interference of the judiciary in the legislative and executive fields

occurs due to the non-activity of the other organs of the government
relief is provided to the disadvantaged and aggrieved citizens
a base for policy making in competition with the legislature and executive

In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become
activists and compel the authority to act and sometimes also direct the government regarding policies and also
matters of administration.

Judicial Restraint
In adjudging the constitutionality of socio-economic legislation, judges accord deference to the legislative will and
such legislation is not invalidated unless it is patently discriminatory. Judges do not interfere with the policy of the
executive government if it is not contrary to a statute or the Constitution.
Class Notes on Constitutional Law Unit IV (1st Sem / 3 year
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Federalism Distribution of Legislative Powers between Centre and States

Arts. 245, 246 + VII Schedule

Center-State Relations

The Power of the Union and the States to carry on trade, etc. Art. 298

Freedom of Trade, Commerce and Intercourse Arts. 301 307

The Amendment of the Indian Constitution Art. 368

The Doctrine of Prospective Over-ruling

Limitation on Constitutional Amendment the Basic Structure Theory Art. 368

Class Notes on Constitutional Law Unit V (1st Sem / 3 year
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The Emergency Provisions need of Emergency Powers kinds of

Emergency Arts. 352 360
Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle
special situations. In emergency, the center can take full legislative and executive control of any state. It also allows
the center to curtail or suspend freedom of the citizens. Existence of emergency is a big reason why academicians
are hesitant to call Indian constitution as fully federal.

Emergency can be of three types

Due to war, external aggression or armed rebellion (Article 352)

failure of constitutional machinery in a state (Article 356), or
financial emergency (Article 360).

However, technically, Proclamation of Emergency is only done upon external aggression or armed rebellion. In the
second case, it is called Presidential Rule, and in the third case it is called Proclamation of Financial Emergency:

Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India or any part
of India is threatened due to outside aggression or armed rebellion, he may make a proclamation to that effect
regarding whole of India or a part thereof.

However, sub clause 3 says that President can make such a proclamation only upon the written advise of the Union
Cabinet. Such a proclamation must be placed before each house of the parliament and must be approved by each
house with in one month otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually
happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening.

In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of
the validity of the proclamation of emergency issued by the president under 352(1). However, courts power is
limited only to examining whether the limitations conferred by the constitution have been observed or not. It can
check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or
irrelevant grounds, it is no satisfaction at all.
 Prior to 44th amendment, duration of emergency was two months initially and then after approval by the
houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the
period is reduced to 1 month and then 6 months after approval.

Effects of Proclamation of emergency

The following are the effects arising out of proclamation of emergency in art 352.

On Executive Art 353

1. executive power of the Union shall extend to giving directions to any state.
2. parliament will get power to make laws on subjects that are not in Union list.
3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if
that is also threatened.
4. State Government is not dismissed when National Emergency is proclaimed but brought under the effective
control of the Union.
5. As soon as National Emergency is proclaimed distribution of power between Centre and States gets
automatically suspended. Hence, Union Executive is free to give directions on all the subjects and such directions
are binding on the States.

On Legislature Art 354

Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the
president. Every law such made shall be laid before each house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external aggression.

Judicial Review Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due
to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make
laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to
have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon
freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art
19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the
end of emergency.

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not
suspended during emergency but only their operation is suspended. This means that as soon as emergency is over,
rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before
emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency
was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the
operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

The Impact of Emergency on Federalism and Fundamental Rights

Arts. 353 360
Art 359
This article provides additional power to the president while proclamation of emergency is in operation, using which
the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part
III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as
mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.
In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown
below:

Art 358 Art 359

Freedoms given by art 19 are Fundamental rights are not suspended. Only the courts
suspended. cannot be moved to enforce fundamental rights.
Any actions done or omitted to be done
Any action done by the legislature or executive can be
cannot be challenged even after
challenged after the suspension is over.
emergency.
Right to move courts is suspended for the period of
Art 19 is suspended for the period of
emergency or until the proclamation of the president to
emergency.
remove suspension.
Effective all over the country. May be confined to an area.
Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one
year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire.

State Emergency on failure of Constitutional Machinery in a State /

Centre-State Relations Arts. 356 357
Provisions in case of failure of constitutional machinery is States
Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of the state is
cannot function according to the provisions of the constitution, he may, by proclamation, assume to himself all or any
of the functions of the govt, or all or any of the powers vested in the governor, or anybody or any authority in the state
except the legislature of the state. The power of the legislature of the state shall be exercised by the authority of the
parliament.

Under this article, president can also make such incidental and consequential provisions which are necessary to give
effect to the objectives of the proclamation. This includes suspension of any provision of this constitution relating to
any body or authority in the state.

However, this article does not authorize the president to assume the powers vested in the High Courts.

Art 357 provides that in the case of proclamation under art 356
parliament can confer upon the president the power of legislature of the state to make laws or the power to
delegate the power to make laws to anybody else.
the parliament or the president can confer power or impose duties on the Union or Union officers or Union
authorities.
president can authorize the expenditure from the consolidated fund of the stat pending sanction of such
expenditure by the parliament.

The Financial Emergency Art. 360

Under Article 360 the President enjoys the power to proclaim the financial Emergency. If he is satisfied that a situation
has arisen that financial stability and credit of India or any part thereof is threatened he may proclaim emergency to
that effect. All such proclamations

(a) Can be varied or revoked by the President.

(b) Financial Emergency must be approved by the Parliament within 2 months after its proclamation. Once it
is approved, it will remain till the President revokes it.
This article has never been invoked.

Effects of Financial Emergency

1. President is empowered to suspend the distribution of financial resources with States.
2. President can issue directions to States to follow canons of financial propriety.
3. He can direct State Government to decrease salaries allowances of Civil Servants and other Constitutional
dignitaries.
4. President can direct the government to resume all the financial and Money Bills passed by legislature for his
consideration.

The President can issue directions for the reduction of salaries and allowances of Judges of the Supreme Court and
the High Courts.

Changes made by 44th Amendment

44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused by
the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd amendment.
The following are important points of this amendments-

Internal disturbance was replaced by armed rebellion under art 352.

The decision of proclamation of emergency must be communicated by the Cabinet in writing.
Proclamation of emergency must be by the houses within one month.
To continue emergency, it must be re approved by the houses every six month.
Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present
and voting. 1/10 of the members of a house can move such a resolution.
Art 358 Under this article art 19 will be suspended only upon war or external aggression and not upon
armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358. All
other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III will not include art 20
and 21.
Reversed back the term of Lok Sabha from 6 to 5 years.

Services under the State (the Doctrine of Pleasure) Arts. 308 314
The Doctrine of Pleasure
The doctrine of pleasure owes its origin to common law. The rule in England was that a civil servant can hold his
office during the pleasure of the crown and the service will be terminated any time the crown wishes the same rule is
applied in India. The member of Defence services or civil services of the union or All-India services hold their office
during the pleasure of president. Similarly member of state services holds the office during the pleasure of governor.
the provisions related to services under union and state is contained under part XIV of the Indian constitution.

The article 310 of Indian constitution reads that

Except as expressly provided by this Constitution, every person who is a member of a Defence service or of a civil
service of the Union or of an All India Service or holds any post connected with Defence or any civil post under the
Union holds office during the pleasure of the President, and every person who is a member of a civil service of a
State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the
President or, as the case may be of the Governor of the State, any contract under which a person, not being a
member of a Defence service or of an All-India service or of a civil service of the Union or a State, is appointed under
this Constitution to hold such a post may, if the President or the Governor, as the case may be, deems it necessary in
order to secure the services of a person having special qualifications, provide for the payment to him of
compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected
with any misconduct on his part, required to vacate the post.

Now if such powers are given to president of India and the governor of states than it would be really difficult to
exercise power on them so there are certain offices which are outside the purview of article 310 and article 311 was
put as a restriction to doctrine of pleasure.

Services excluded from the purview of Article 310

1. Tenure of supreme court judges (Article 124)

2. Tenure of high court judges (Article 148(2))
3. The chief election commissioner (Article 324)
4. Chairman and member of public- service commission (Article 317)

The article 311 acts as a safeguard to civil servants. It reads as under;

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or
holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by
which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he
has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those
charges: Provided that where, it is proposed after such inquiry, to impose upon him any such penalty, such penalty
may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such
person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not
apply

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State
it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such
inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final.

The procedure laid down in Article 311 is intended to assure, first, a measure of security of tenure to Government
servants, who are covered by the Article and secondly to provide certain safeguards against arbitrary dismissal or
removal of a Government servant or reduction to a lower rank. These provisions are enforceable in a court of law.
Where there is an infringement of Article 311, the orders passed by the disciplinary authority are void ab-initio and in
the eye of law no more than a piece of waste paper and the Government servant will be deemed to have continued
in service or in the case of reduction in rank, in his previous post throughout. Article 311 is of the nature of a proviso
to Article 310. The exercise of pleasure by the President under Article 310 is thus controlled and regulated by the
provisions of Article 311.

When termination of service will amount to punishment of dismissal or removal.

1. Whether termination of service of a Government servant in any given circumstance will amount to punishment will
depend upon whether under the terms and conditions governing his appointment to a post he had a right to hold the
post but for termination of his service. If he has such a right, then the termination of his service will, by itself, be a
punishment for it will operate as a forfeiture of his right to hold the post. But if the Government servant has no right to
hold the post the termination of his employment or his reversion to a lower post will not deprive him of any right and
will not, therefore, by itself be a punishment.

2. If the Government servant is a temporary on and has no right to hold the post, dismissal or removal will amount to
punishment if such a Government servant has been visited with certain evil consequences.

When Article 311 is applicable.

The most notable point is that Article 311 is available only when dismissal, removal, reduction in rank is by way
of punishment. so it is difficult to determine as to when an order of termination of service or reduction in rank
amounts to punishment

in case of Parshottam Lal Dhingra Vs Union of India. The supreme court laid down 2 tests to determine when
termination is by way of punishment

Whether the servant had a right to hold the post or the rank;
Whether he has been visited with evil consequences.

If a government servant had a right to hold the post or rank under the terms of any contract of service, or under any
rule, governing the service, then the termination of his service or reduction in rank amounts to a punishment and he
will be entitled to protection under Article 311. Articles 310 and 311 apply to Government servants, whether
permanent, temporary, officiating or on probation.

Exceptions to Article 311 (2)

The provision to Article 311 (2) provides for certain circumstances in which the procedure envisaged in the
substantive part of the clause need not be followed. These are set out below.

1. Conviction on a criminal charge. One of the circumstances excepted by clause (a) of the provision is when a
person is dismissed or removed or reduced in rank on the ground of conduct which has laid to his conviction on a
criminal charge. The rationale behind this exception is that a formal inquiry is not necessary in a case in which a court
of law has already given a verdict. However, if a conviction is set aside or quashed by a higher court on appeal, the
Government servant will be deemed not to have been convicted at all. Then the Government servant will be treated
as if he had not been convicted at all and as if the order of dismissal was never in existence. In such a case the
Government servant will also be entitled to claim salary for the intervening period during which the dismissal order
was in force. The claim for such arrears of salary will arise only on reinstatement and therefore the period of limitation
under clause 102 of the Limitation Act would apply only with reference to that date . The grounds of conduct for which
action could be taken under this proviso could relate to a conviction on a criminal charge before appointment to
Government service of the person concerned. If the appointing authority were aware of the conviction before he was
appointed, it might well be expected to refuse to appoint such a person but if for some reason the fact of conviction
did not become known till after his appointment, the person concerned could be discharged from service on the basis
of his conviction under clause (a) of the proviso without following the normal procedure envisaged in Article 311.

2. Impracticability Clause (b) of the proviso provides that where the appropriate disciplinary authority is satisfied,
for reasons to be recorded by that authority in writing that it does not consider it reasonably practicable to give to the
person an opportunity of showing cause, no such opportunity need be given. The satisfaction under this clause has to
be of the disciplinary authority who has the power to dismiss, remove or reduce the Government servant in rank. As a
check against an arbitrary use of this exception, it has been provided that the reasons for which the competent
authority decides to do away with the prescribed procedures must be recorded in writing setting out why it would not
be practicable to give the accused an opportunity. The use of this exception could be made in case, where, for
example a person concerned has absconded or where, for other reasons, it is impracticable to communicate with him.

3.Reasons of security Under proviso (c) to Article 311 (2), where the President is satisfied that the retention of a
person in public service is prejudicial to the security of the State, his services can be terminated without recourse to
the normal procedure prescribed in Article 311 (2).The satisfaction referred to in the proviso is the subjective
satisfaction of the President about the expediency of not giving an opportunity to the employee concerned in the
interest of the security of the State. This clause does not require that reasons for the satisfaction should be recorded
in writing. That indicates that the power given to the President is unfettered and cannot be made a justifiable issue, as
that would amount to substituting the satisfaction of the court in place of the satisfaction of the President.

Is suspension or compulsory retirement a form of punishment?

Neither suspension nor compulsory retirement amounts to punishment and hence they cant be brought under the
purview of Article 311 and has no protection is available.

Supreme court in case of such Bansh singh Vs State of Punjab clearly held that suspension from service is neither
dismissal nor removal nor reduction in rank, therefore, if a Government servant is suspended he cannot claim the
constitutional guarantee of Article 311[2].

In Shyam Lal Vs State of U.P, Supreme Court held that compulsory retirement differ from dismissal and removal as
it involves no penal consequences and also a government servant who is compulsory retired does not loose any part
of benefit earned during the service so it doesnt attract the provisions of Article 311.

Other safeguards to civil servants

Article 311(1) : It says that a civil servant cannot be dismissed or removed by any authority subordinate to the
authority by which he was appointed

Article 311(2): It says that a civil servant cannot be removed or dismissed or reduced in rank unless he has been
given a reasonable opportunity to show cause against action proposed to be taken against him.

In many cases like in Khem Chand vs. Union of India, and in Union of India and another vs. Tlusiram Patel, the
Supreme Court gave an exhaustive interpretation of the various aspects involved and they provide the administrative
authorities authoritative guidelines in dealing with disciplinary cases.

Is article 310 and 311 contrary to article 20(2) of Indian constitution or to the principle
of natural justice?
When a government servant is is punished for the same misconduct under the army act and also under central civil
services (classification and control and appeal) rules 1965 then the question arises that can it be brought under the
ambit of double jeopardy. The answer was given by supreme court in the case of Union of India Vs Sunil Kumar
Sarkar . held that the court martial proceeding is different from that of central rules , the former deals with the
personal aspect of misconduct and latter deals with disciplinary aspect of misconduct.

Ordinarily , natural justice does not postulate a right to be represented or assisted by a lawyer, in departmental
Inquiries but in extreme or particular situation the rules of natural justice or fairness may require that the person
should be given professional help.

The Liability of State in Contracts Art. 299

Article 299 narrates about the Liability of State in Contracts

299. Contracts.(1) All contracts made in the exercise of the executive power of the Union or of a State shall be
expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts
and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the
Governor by such persons and in such manner as he may direct or authorise.
(2) Neither the President nor the Governor shall be personally liable in respect of
any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any
enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such
contract or assurance on behalf of any of them be personally liable in respect thereof.

Essentials of Article 299

1. All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be
made by the President or by the Governor of the State, as the case may be.
2. All such contracts and all assurances of property made in the exercise of that power shall be executed on
behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
3. No liability of the President or Governor: Neither the President nor the Governor shall be personally liable in
respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes
of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing
any such contract or assurance on behalf of any of them be personally liable in respect thereof.
4. Article 299 is mandatory
5. If the requirements of Article 299 are not complied with, the officer executing the contract would be
personally liable.
6. Quantum merit or quantum valebat (service or goods received): If the Government enjoys the benefit of
performance by the other party to the contract, shall be bound to give recompense on the principles of Quantum
merit or quantum valebat. The principles as laid down in Sections 65 to 70 (Quasi-contracts) of the Indian
Contract Act, 1872 shall also apply in the Government Contracts also.
7. Depending upon the facts and circumstances, the Doctrine of Estoppel may also apply in the Government
Contracts under Article 299.

State of West Bengal v B.K. Mondal & Sons

Union of India v Rallia Ram

The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v Sipani Singh and others

Promissory Estoppel
The Doctrine of Promissory Estoppel has been variously called Promissory Estoppel, Requisite Estoppel, Quasi-
Estoppel and New Estoppel. It is a principle evolved by equity to avoid injustice and though commonly named
Promissory Estoppel, it is neither in the realm of Contract nor in the realm of Estoppel. The true principle of
Promissory Estoppel seems to be that where one party has by his words or conduct made to the other a clear and
unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future,
knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so
acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go
back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place
between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the
parties or not.

The Doctrine of Promissory Estoppel need not be inhibited by the same limitation as estoppel in the strict sense of
the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be
given only a limited application by way of defence.

M.P. Sugar Mills v State of U.P.

U.P. Rajkya Nirman Nigam Lt.d v Indure Pvt. Ltd. and others

The Liability of State in Torts / Suits and Proceedings Art. 300

Article 300 of the Constitution of India lays down provisions that the State can sue and can be sued, and it is also
liable for its and its employees torts.
300. Suits and proceedings.

(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State
may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of
Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be
sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces
or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be
deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding
State shall be deemed to be substituted for the Province or the Indian State in those proceedings.

Buron v Denman

Hardial Singh v State of PEPSU

Defences of Sovereign Immunity

Sovereign Immunity Position in England
Sovereign Immunity Position in India
BEFORE COMMENCEMENT OF THE CONSTITUTION

Secretary of State (1861)

AFTER COMMENCEMENT OF THE CONSTITUTION

State of Rajasthan v Vidyawati

State of Gujarat v Memon Mahomed Haji Hasan

Smt. B.K.D. Patil v State of Mysore

The Vicarious Liability of State Art. 300

Position in England
Res non protest peccare (The King can do no wrong) is an ancient and fundamental principle of the English law.
King is regarded above all laws. This principle was also extended to his employees. Therefore, if a tort was committed
by Kings servants in the course of their employment, the injured has no right to sue the King under the vicarious
liability.

Respondeat Superior principle was not adopted in the case of the King. The Courts in various decisions criticized
this exemption given to the King, opining that it was against the principles of equity, good conscience and justice. As a
result of long discussions in the Courts and in the Parliament, at last, the Britain Parliament passed The Crown
Proceedings Act, 1947. Now, the Crown can also be sued for his servants tortious acts committed in their course of
employment under the principle of Respondeat Superior.

Position in India

Rup Ram v The Punjab State

Vidyawati v Lokumal
Kasturilal v State of U.P.

Pagadala Narasimham v The Commissioner & Special Officer, Nellore Municipality

State of Orissa v Padmalochan

State of M.P. v Chironji Lal

State of Punjab v Lal Chand Subharwal

Satyawati Devi v Union of India

State of Gujarat v Memon Mahomed

Credits: Source for the notes have been taken from various online websites as well as other guides and books such
as www.hanumant.com, www.legalserviceindia.com, etc.