CODE OF CRIMINAL PROCEDURE (CRIMINAL JUSTICE

SYSTEM)
CRIMINAL PROCESS
 Find Notes for Jan. 2, 2019

 The Cr.P.C. is merely the text, the context for this text are the three stakeholders
of the Criminal Justice system.
 There are three stakeholders of the Criminal Justice system;
a. Law enforcement [incl. Local Police, State Police, Armed Forces, the CRPF,
RAF, CISF, SSB, the CBI (Created under Delhi Police Establishment Act)];
b. Judiciary [The Courts];
c. Correctional systems [Incl. Prisons, Rehabilitation Systems and Probation];
 The roles of these three systems are independently important.
 Contemporary criminal law has seen the Supreme Court advocating for the
"Constitutionalization of Criminal Procedure". They believe that the application
of criminal procedure should be in the context of the Constitution.
 Constitutionalization implies that in understanding criminal procedure, one must
imbibe the values of the Constitution at every point, not just in implementing but
also in creating and defining the contours of criminal process.
 The use of Probation at present, is seemingly restricted solely to cases pertaining
to juveniles.
 Analysis for Criminal Procedure should not be about the 'what', but more about
the 'how'.
Eg. The 'how' in case of Section 320, Cr.P.C. Is about how the Section is
applied and how offences are compounded [Applies to cases where rape
compromise is marrying the prosecutrix][The what would simply ask what the
compounding of offences is].
 This inherently points to how criminal justice is about the application of
procedure, and not about the procedure itself. This is connected to the
proposition that the validity of a provision should not be decided on the basis of
the scope for misuse.
 Read the article on the Two Models of the Criminal Justice System.
 'Fruit of Poisonous Tree' Doctrine.
Whether the Fruit of Poisonous Tree Doctrine is admissible in India?
 The importance of the police forces as a limb of the criminal justice system can be
understood through three articles/cases:
Judicial Impact Assessment (JIA), article by Mohan Gopal, available at
https://frontline.thehindu.com/static/html/fl3008/stories/20130503300801700.
htm.
 Also read
https://frontline.thehindu.com/static/html/fl3008/stories/20130503300801000.
htm.
Case: Prakash Singh v. Union of India (Any of the cases)
In this case, the role of the police as a law enforcing agency and as an institution
responsible for the maintenance of law and order in the country. He advocates for
police reforms, and has held several posts within the police system.
Case: Prem Chand v. Union of India (1980); Anil Yadav v. State of Bihar
(1982)(Supreme Court)(Bhagalpur Blindings case):
These cases talk about the deficiencies of the criminal justice system, on the hands
of the police. [Not judgments meant for analysis, but for mere reading].

CONSTITUTION OF CRIMINAL COURTS

 There are three elements of the criminal court system:
a. Court;
b. Public prosecutor(ion);
c. Defence;
 Section 6 defines the classes of criminal courts. Besides the High Courts and the
Supreme Court, these classes of Criminal Courts will be created, other than the courts
created under the Code:
a. Courts of Session;
b. Judicial Magistrates of the First Class; and, in any metropolitan area, Metropolitan
Magistrate;
c. Judicial Magistrates of the second class;
d. Executive Magistrate [Executive Magistrates have powers which begin at Section
106 of the Code. During the banning of Padmaavat, it was the Executive
Magistrate who took the decision to disallow the release of the film][This
Magistrate is about taking immediate decisions pertaining to law and order];
The government has a power to create a court anywhere. Eg. Court for Asaram,
Ram Rahim, etc., which were made inside a jail.
 Section 2(c) defines cognizable offence as one in which the police can arrest without
warrant [Another caveat of the same is that the police can investigate freely in these
cases]; Similarly, Section 2(l) defines non-cognizable offence as one in which the
police cannot arrest without a warrant;
 There are two types of jurisdiction: Territorial jurisdiction and penal jurisdiction.

THE PUBLIC PROSECUTOR

THE PUBLIC PROSECUTOR

 The role of the public prosecutor is an important in the criminal justice system.
 The important questions in regard to this are:
a. Role of the public prosecutor;
 b. Function of the prosecutor;
c. Importance and origin of the public prosecutor;
d. The manner of appointment of the public prosecutor;
e. The issues and challenges with the appointment of the public prosecutor;
 "Public prosecutor" is defined under Section 2(u) of the Cr. P. C. This is an umbrella
term. It takes seven years' practice to become a public prosecutor. This Section is
problematic as it allows for anyone acting under the Public Prosecutor to also be for
the cases that they act under the Public Prosecutor, a Public Prosecutor themselves.
 One reason for the State prosecuting the crime, is because crime is inherently linked to
the society, and cannot be considered to be an act in personam against the victim. It
(crime) disregards and goes against the basic tenets and moral fibre of society.
 A special public prosecutor is one who is appointed specifically for one particular case.
It requires 10 years' practice at least to become a special public prosecutor. A special
public prosecutor under the POCSO Act, under Section 32, requires 10 years' practice.
 A panel will be appointed by the District Magistrate and the District Sessions Judge, of
the list of the people applying to be public prosecutors. The Home Minister prepares a
list according to political affiliation, which, as is required, should not be a criteria. This
is the practical aspect of appointment of the public prosecutor.
 The principal Sessions Judge has an administrative power of participating in the
appointment of the public prosecutors. The principal Sessions Judge is an
administrative post, and he has power over all the other District Judges in the district.
In practicality, this power is exercised arbitrarily in how the District Judge is given the
power of assigning cases to the courts.
 Case: Sunil Kumar Pal v. Phota Sheikh (1984)(Supreme Court)
This case talks about the procedure for appointment of the public prosecutor, and
specific public prosecutor, by the District Magistrate. Here, the public prosecutor was
appointed for the defence, who was biased as he was in support of the Communist
Party of India (Marxist), who were the ruling party in the State of West Bengal.
 The Assistant Public Prosecutor is appointed by the State Public Service Commission,
in consonance with the High Court judges. The question here arose, is whether the
elevation of Asst. Public Prosecutor to a Public Prosecutor is inherent, or at discretion?
 Section 24 talks about the procedure for appointment of public prosecutors.
S. 24(1) states that in every High Court, the Central Government or the State
Government, has to appoint a public prosecutor and additional public prosecutors in
consultation with the High Court, for conducting prosecution, appeal or other
proceedings on behalf of the State.
S. 24(2)
S. 24(3) states that for every district, the State Government shall appoint a Public
Prosecutor and may also appoint one or more Addl. Public Prosecutors as the case may
be. Provided that, the Public Prosecutor or Addl. Public Prosecutor can be a Public
Prosecutor for another district.
 Case: Laxman Rupchand Meghwani v. State of Gujarat (2015)(Gujarat HC)[Para 9, 37,
91][IMPORTANT]
This man, Shri Pandya, was the Public Prosecutor for cases under the Gujarat riots.
 However, in many cases, he did not press the arguments against a lot of the
government accused in these riots. When Zaheera Shaikh reached the SC, they
observed that the Public Prosecutor who represented them did not exercise the high
level of experience that was expected from him. The Prosecutor was in cahoots with
the then BJP government in Gujarat. Improper counsel was conducted in the Best
Bakery case, and no proper consultation was done on part of this Public Prosecutor.

QUESTIONS FOR THIS CASE:

1. Whether public prosecutor holds public office or not? [Para 24][Para 27 ("Fit to
be appointed as public prosecutor" and "suitable person")][Para 28 (Meaning
of "fit" and "suitable person")]
This case said that public prosecutor does hold a public office. Fitness is not to be
equated with the eligibility criteria. The Cr.P.C mentions fitness and suitable persons,
but does not define the same. The DM is required to form an opinion. The meaning of
the word 'fit' has been finally clarified under para 29.

2. Institutional integrity of the office of public prosecutor? [Para 39]

3. Role of the public prosecutor?

Sections 199(2), 225, 302, 308, 379, 301, 385(1) and 321 are those which confer a
special position to a Public Prosecutor. These Sections are important for the powers
they confer to the Public Prosecutor. The role of the Public Prosecutor under the State
is described under Para 37. Public Prosecutors, as per this judgment, are officers of the
court and not of the government. When the paragraph states that they are statutory
authority different from other public servants, what is this difference between Public
Prosecutors and other officers?

4. What is the meaning of 'effective consultation' between District Magistrate and

the Sessions Judge?
From the judgment, the consultation between the DM and the Sessions Judge is not
mandated, in regard of a 'special public prosecutor'. No panel is prepared for this.

 Case: Varghese John v. State of Kerala (Kerala HC)(1995)

The case said that there was private interest and vengeance on part of the petitioner,
and that there was no problem with entrusting that case to the junior, who had only
passed the bar four months ago. The Court states that Public Prosecutors are officers
of the State, and that they have a duty to the State to carry out their office with dignity.
However, this is obiter dicta, and does not have any influence for future cases. The
ghost of such a case is still found in lower courts, where Public Prosecutors still
delegate cases to juniors who do not have the requisite capability

 Is the Advocate-General a Public Prosecutor?

Case: State of Kerala v. Kolarveetiil Krishnan (1980)(Supreme Court)
 Advocate-General cannot act as a Public Prosecutor, since he has not been appointed
under S.2(u) and S. 24 of the Cr.P.C. This is because on the one hand, Advocate-
General is above the Public Prosecutor by rank but he still can't exercise the powers of
the Public Prosecutor.
___________________________________________________________________

SECTION 321 Cr.P.C. [WITHDRAWAL OF PROSECUTION]

 Section 321 respects both, the power of the public prosecutor and secondly, the
judicial discretion on part of the court.
 The Public Prosecutor does not solely have the duty to opt for conviction, no matter
the means. The Public Prosecutor is an officer of the court, in how he has the duty to
ensure that fair trial takes place and all relevant material is produced.

 Case: Abdul Karim v. State of Karnataka (2000)(Supreme Court) [Important]

Discusses another important case of Sheonandan Paswan v. State of Bihar. This case
states that on the one hand, the judge should have a restrictive role. On the other hand,
the court states that in the interest of public interest, law and order, the court should
examine the withdrawal of the case under S.321.
[Para 18] This aspect of the Sheonandan Paswan case has been reiterated. The Court,
after examining the facts of the case. When that order is getting an application for
withdrawal, what is the duty of the trial court? What accordingly, is the role of the
appellate court in case of a challenge to such application to withdrawal?

 Case: V.L.S. Finance v. S.P. Gupta (2016)(Supreme Court)[Important!]

Application of mind by the Public Prosecutor in withdrawing the case. There were four
cases for which withdrawal was sought, three of which were against S.P. Gupta,
indicating political undertones. [Para 10] A Committee formed to scrutinize cases
which are prime for withdrawal of prosecution. [Para 14] Prosecution asked for
withdrawal stating that based on investigation, it was a commercial transaction
culminating into a criminal offence. However, evidence was not to be considered solely
as a criterion to withdraw prosecution. [Para 34] Discussion of the Sheonandan Paswan
case. [Para 37-41, not para 40, Important]. The question has to be whether the legal
system can be used. The important aspect of this case is whether this case can be
withdraw. The crucial part of VLS Finance talks about whether the Public Prosecutor
has applied his mind in withdrawal of prosecution. The question is, whether the court
has the power to review the policy decisions of the government. If not, why? If the
Committee used extraneous consideration in allowing withdrawal of prosecution, the
court must look into whether the Committee exercised it's mind. The question this case
seeks to answer is whether, in case of an enquiry by a review court, the court can look
into how the Committee arrived at its decision to withdraw the prosecution.
 Case: Rajendra Kumar Jain v. State (1980)(Supreme Court)
[Para 13, discussing Subhash Chandra][Para 14, eight principles mentioned, very
important]. The Court's technical power or scope into entering into whether they can
 go into the reasons cited by the Executive in withdrawing the prosecution. The
question is now: Whether the public prosecutor applied his mind without keeping in
mind any extraneous or irrelevant considerations, and what considerations under which
the Executive is required to furnish the reasons as to withdrawing the prosecution.
There is a functional dichotomy, in how the Public Prosecutor is an executive officer
while the court exercises a judicial function. Those eight principles act as guidelines.
The role of the court and of the public prosecutor in this regard has to be understood.

 Case: Yerneni Raja Ramchandar v. State of Andhra Pradesh (2009)(Supreme

Court)
In this case, the PP is acting as a mouthpiece, and the Court clearly criticizes this. If
there is a criminal case, it is the PP'd duty to independently analyse the existence of a
criminal case, which is independent of whether the MLA has refunded the
misappropriated funds. The PP's job as an assistant of the court, is the real test of the
Public Prosecutor [Laxman Rupchand Meghwani]. The main responsibility a PP holds
is that of conducting trial, not of getting conviction.

UNDER WHAT CIRCUMSTANCES CAN A THIRD PARTY COME TO OBJECT

THE WITHDRAWAL OF PROSECUTION? UNDER WHAT CIRCUMSTANCES
IS THEIR OBJECTION RELEVANT?

 Case: Niranjan Pradhan v. State (1990)(Orissa HC)

The question in this case is not as to whether or not the Magistrate had the power to
try cases under Section 436 of the CrPC. The question pertains to how the court
determines their stance on this jurisdictional issue. The argument that they put forth
from the Rajendra Kumar Jain judgment pertained to how since the Court cannot acquit
or convict, the Court should not have the power to grant consent to withdraw from
prosecution. The power under Section 321 has been cited as a special power, founded
on Section 321 itself, independently of the merits of the case.

ROLE OF THE COURT

 Case: Balabhadra Dash v. State of Orissa (1991)(Orissa HC)

 Case: State v. Chandrika Mohapatra (1976)(Supreme Court)

 Notes for 17-01-2019 are in the blue and orange notepad.

 Case: Saramma Peter v. State of Kerala (1991)(Kerala HC)
This talks about a possible statutory duty to check with the complainant before
withdrawing the case. This talks about the role of the complainant with respect to the
public prosecutor in terms of whether she can raise an objection to withdrawal,
furthermore the question becomes pertinent as to whether the complainant can file for
withdrawal. This case states that the public prosecutor has complete discretion in this
matter, and no consultation with the complainant is necessary. Whether the court in
 this case, has a duty to listent o the complainant while hearing such an application.
Also, whether or not the court or Public Prosecutor has a duty to intimate the
complainant as to such withdrawal.
 Case: V.S. Achudananda v. R. Balakrishna Pillai (1994)(Supreme
Court)[Important]

 Case: K.V.V. Krishna Rao v. State of Andhra Pradesh (2002)(Andhra Pradesh

HC, Hyderabad)
Read full case. This case again refers to the Sheonandan Paswan case, and talks about
intimation of the complainant. Herein, the complainant has the entitlement to
challenge the instructions given by the Government.
 Case: T.P. Nandakumar v. State (2008)(Kerala HC)[Important]
[Para 20]

REMOVAL OF PUBLIC PROSECUTOR

 Except in case of misconduct by Public Prosecutor, he cannot be removed. This is the

safeguard provided to the office of the Public Prosecutor.
 Question becomes: What is misconduct?
 JURISPRUDENCE – II
INTRODUCTION
 The main question is 'what is justice'?
 One of the answers as to the question of what law really is, is that law is an
instrument of justice.
 A natural inference is to ask the question as to what justice really is.
 There are a number of theories regarding justice. The aim of this semester is to be
able to justify and understand whether a law or policy is just, and to understand
from a wider perspective, the complexities involved in answering such a question.
 The understanding is that for any law or policy, there is an underlying philosophy.
The relevant characteristics as to each policy or law, have to be identified and then
subsequently analysed.

THE AMBIT OF THE QUESTION “WHAT IS JUSTICE”?

The Uttarakhand Landslide Example:

 After the Uttarakhand landslide, the prices of daily goods became increasingly
exorbitant.
Water bottle: ₹ 300/-
Chapati: ₹ 200/-
Tea: ₹ 75/-
 This raises the question 'what is a just price', mainly because we would pay the
same price for the same good (Water bottle, for instance) at a five-star hotel.
 The understanding has to be that in a market society, prices have to be a joint
function of demand and supply. There is no such thing as a 'just price'. There
is no moral sanctity about price. They are no more 'special' or 'fair'. Therefore, the
idea of consent to take the price has to be looked into. There is an attachment of
value and a consent to adhere to that value, that creates the price.
 However, what sellers in Utttarakhand did, was take advantage of the situation.
Here, if the idea of consent is looked into as the model for justice, then people
have not freely consented to the price independent of situation.
 The advantages of holding such a view, is that it firstly maintains the humaneness
in the transaction. The principal advantage however, is that it protects freedom.
This therefore, says that you are free to consent to the price, and ergo, consent to
the transaction. This view therefore, protects liberties.
 The consequences of this is a market system, regulated by the natural forces of
demand and supply in conjunction.
____________________________________________________________________
The Farmer v. Mukesh Ambani Example:
  Average income of an Indian farmer: ₹ 6426/- per month. Is it a just income?
Mukesh Ambani's salary: ₹ 1,25,00,000/- per month. Is it a just salary?
 There is consent in giving Mukesh Ambani the salary that he does receive. Mukesh
Ambani however, creates jobs. While he gets richer, these people also get richer.
 However, this raises the question as to ascribed statuses and talents as well. Social
and relative equality is a function of not just hard work, but statuses such as natural
talent, ability and access to resources. The conclusion that can be arrived as a fruit
of the discussion delves into how much you can claim that the amount of wealth
that you do own, belongs to you.
 The question therefore, becomes whether one can claim that anything exclusively
belongs to someone.
 There is a dichotomy of views in this respect. This results in the real question of
redistribution of wealth. This would be a communist v. Capitalist question.
 Therefore, in saying that Mukesh Ambani does not deserve his wealth, we will
have to say that he did not exclusively own his wealth. Conversely, if we were to
say that we own everything we have, the question becomes as to whether we are
solely responsible for it, and that its ownership cannot be attributed to any external
factors whatsoever.
____________________________________________________________________
The Border Example:

 India opened its borders to the Rohingya refugees. Simultaneously, the Trump
administration took a protectionist view of closing its borders to the immigrants of
seven countries (2017).
 The larger question is about whether you relate to other human beings, and how.
Those who believe that we do not relate to other human beings, believe in an
absolutist idea of consent wherein when asked the question, "Should we do
something for the environment?" or "Should we do something in the interest of
global trade?", they would merely say NO.
Those who do, would relate to the idea of inter-generational justice. The
conception has to be formed, as to who we are, and what stance we take, on
policies.
____________________________________________________________________
 The dichotomy this presents, is that justice is a function of liberty, and consent forms
the base for such a system. Justice from this point of view, protects liberties and consent
is the core value making such a system just. The value sacrificed herein is the welfare of
the people. This consent while free, may be forced and guided by circumstance.
Similarly, a welfare policy presents a similar challenge, in how it dis-incentivizes those
who actually produce the goods, in how they now realize that the talent they base their
life on, is not worth enough to be able to allow them the pleasures of life, which acted as
the reason for them wanting to even produce the good.
____________________________________________________________________
SUMMARY
  The question of justice is intrinsically about distribution, and how resources are to
be distributed, how opportunities have to distributed, how liberty has to be
distributed.
 To ask whether a society is just is to ask how it distributes the things we prize -
income and wealth, duties and rights, powers and opportunities, offices and
honours.
 In conclusion, a question of justice is about how society should be organized.
The problems of justice are problems of:
a. Maximizing welfare;
b. Protecting freedoms;
c. Protecting virtues;
 No one principle seems suitable eternally. Therefore, this is a dynamic concept.

CASE STUDIES
CASE 1

 Information about an AIDS patient's medical condition passed on by doctors to the

person he/she is about to marry [Mr. X v. Hospital Z, A.I.R. 1999 S.C. 495].
The results of this were:
1. Marriage called off;
2. Several people became aware of the person's HIV status;
3. Patient suffered severe criticism from people and was ostracized by the community.
 This raises the prima facie question of the Right to Privacy v. The Right to
Health/The Right to Complete Information.
 The doctor obviously gave prime importance to the right to health. Determining what
is justice, had long-term repercussions. Like, suppose insurance companies asked about
one's HIV Status in determining whether someone should get an insurance? Also,
suppose the government has to be made privy to this information, would it be a just
policy?
 On the line of thinking that the doctor is right, the gain/loss weighing mechanism is
looked at from the point of view of mere numbers. The wife's life was saved, and in
turn, two lives were saved as opposed to one. Therefore, from this point of view,
justice would in essence mean 'greater happiness for greater number of people'.
 Such a reasoning was espoused by the Supreme Court [Read judgment for more
info].

________________________________________________________________________

CASE 2

 Torture in police custody for the purpose of extracting information from the suspects.
  The understanding, in a loss/gain weighing mechanism, would justify torture in such a
case. The interest of the many would be considered more important than the interest of
the few in such a case. This perspective would justify actions taken in 'larger public
interest'. The subscription justifying torture, talks about a Utility perspective. Such a
perspective would further justify taxation, as torture and taxation are formed on the
same principle that a person by himself, is related to society in a way that what he does,
is not entirely something that belongs to him. Everything is principally interconnected.
 The contrary argument in such a case bases itself on procedure, and considers the
absolution of procedure far more important. Such a position believes that the method
of obtaining justice is as important as the justice so obtained. The conception so
formed here, is that an individual is disconnected from society, in the sense that they
do not owe anything to others. If they have money, they are not bound to share it
(Considers taxation unjust). Similarly, if they are withholding information, it is perfectly
within their rights to do so.
 The clash of principles in this case is the Principle of Liberty of the Suspect v. The
Welfare of Society.
 A similar analysis can be conducted on the issue as to whether or not narco-analysis is,
in principle, justified or even justifiable.

 The problem of justice also includes the problem of consistency.

 The point here, is where we draw the line. The constitutional setup, economic policies
and governmental considerations at any point of time, are affected by the stance that is
taken on any particular issue.

________________________________________________________________________
QUESTIONS

1. Is there any empirically measurable difference in the gain to the society in these
two situations?
2. Is there any empirically measurable difference in the loss to the person who may
claim violation?
3. If physical torture of a person is not justified even for saving thousands of lives,
why emotional torture is justified for saving just one life?
4. Why is there a shifting of empathies in these situations?
5. Can these situations be seen as a clash of values?
6. Can there be a reason for upholding one value even if the conflicting value is
sacrificed?
7. What could be such a reason?
 BENTHAM’S UTILITARIANISM: THE GREATEST
HAPPINESS PRINCIPLE
 "Principles of Morals and Legislation" -Jeremy Bentham's book used here.
 The problem of justice, is one of limited resources and a need for redistribution of the
same. This distribution is done on the basis of the laws and policies of the State.
 Bentham's understanding is that nature has placed mankind under the governance of
two sovereign masters: pain and pleasure. It is for them alone to point out what we
ought to doo, as well as to determine what we shall do. On the one hand, the standard
of right and wrong, on the other the chain of cause and effect, as fastened to their
throne.
 Bentham understands that these two feelings of pleasure and pain, and that we always
try to increase our pleasure and decrease our pain.
 The principle of utility recognizes this subjection, and assumes it for the foundation
of that system, the object of which is to rear the fabric of felicity by the hands of
reason and of law.
 By the principle of utility is meant, that principle which approves or disapproves of
every action whatsoever, according to the tendency which it appears to have to
augment the happiness of the community.
 A measure of government may be said to be comfortable to or dictated by the principle
of utility, when in like manner the tendency which it has to augment the happiness of
the community is greater than any it has to diminish it.
 At the government level, if a Benthamite analysis of a policy has to be done, the ratio
of pleasure is to pain has to be carefully weighed and accordingly, policy alterations are
to be made on the basis of the pleasure or pain so caused.
Eg. Constructing a metro. People will have to be relocated, there will be air pollution,
etc. However, there will be easy commute for decades and centuries to come.
Therefore, justness of such a policy should be measured by a comparative weightage of
pleasure and pain caused by the metro. Bentham argues that this is the only formula
that can be applied.
 Bentham further argues that it is utilitarianism is the only principle, and that at its root,
any idea of justice boils down to the simple principle of pleasure and pain. It is a
principle like the earth, it is unmoved and cannot be challenged.
________________________________________________________________________
SUMMARY

 Justice is increasing the greatest happiness of the greatest number of people.

 A policy has to be evaluated on the basis of a comparative pleasure and pain analysis.
 If pleasure is more than pain, then the policy is good.
________________________________________________________________________
 THE ATTRACTIONS OF UTILITARIANISM

1. Everybody is counted in the calculation of happiness;

2. Everybody's pleasure/happiness is taken as equally important;
3. Reasons of pleasure/happiness are not relevant in the calculus [It does not matter
as to what makes you happy. In the sense, no one action can be considered as superior
or inferior to other actions][Eg. One person likes watching soccer, another person likes
watching the sunset, a third likes to watch pornography, a fourth likes to watch movies.
Bentham equates all these pleasures, and mentions that what makes them happy cannot
be judged];
4. All the reasons for pleasure/happiness are equal; [There is no superiority or
inferiority in loving or hating any particular thing, they are just means of attaining
pleasure. There is no moral judgment involved. Therefore, if the greater number of
people despise homosexuals, the law criminalizing homosexuality would not be
considered wrong. There would be no moral judgment as to the act of homosexuality
itself, the only consideration is whether more number of people are happy];
5. Nobody's pleasures are taken as nobler or worthier as higher. [The intensity of
the happiness is not counted. So even if one person has a more "concentrated"
happiness as compared to the other, this is discounted in the quantitative
understanding of happiness].

There is an egalitarian charm and objectivity in the principle of utilitarianism.

 Bentham states that everyone's pleasures are the same, and therefore, all pleasures are
to be calculated. There is no qualitative difference between pleasures. There is only a
quantitative difference.
________________________________________________________________________
Katrina Kaif v. Sujata Mohapatra example

 Suppose there are funds, and only one activity is to be encouraged. Only one is to be
promoted by creating a school of dance: Katrina Kaif's dance or Sujata Mohapatra's
dance (Odissi dance). This encourages the question: Are all pleasures qualitatively
same?
 This challenges reason 3 of the attractions of utilitarianism as set out above.
 The policy implication of stating that all pleasures are qualitatively same is that the State
would not be answerable in making any kind of policy. The policy implication would be
that even if the State believes that there are inherent ideological problems, however the
State would not interfere in this.
 The second question this raises is: How can human beings be then distinguished
from other species?
The consequence of holding the viewpoint that all the base pleasures are at par with
intellectual pleasures, i.e., we believe that the pleasures are qualitatively the same, is that
there would be no difference. Beyond the basic instinctive pleasures, the pleasures of
intellect, art, have to be encouraged.
 JOHN STUART MILL’S UTILITARIANISM
 The basic premise on which this starts is that there has to be a basic difference between
human beings and other animals. While Mill agrees with the basic utilitarian premise of
'greatest happiness of the greatest number', he differs from Bentham in how this basic
premise is to be achieved.
 In his book, "", he points out the defects of utilitarianism, while remaining within the
core values of utilitarianism.
 Mill starts out with the premise that the pleasures of the beast are different from the
pleasures of the human being. Pleasures of the human being include the pleasures of
intellect, while pleasures of the beast only include pleasures of the body.
 Pleasures that can be enjoyed only by human beings are superior to pleasures that can
be enjoyed by animals.
 He puts a qualitative ranking of pleasures, and goes to the extent of saying that if you
need to find out which pleasures are superior as opposed to others, there is a criteria:
If you have experienced both pleasures, and you have decided that you want to
experience one pleasure for the rest of your life, and it is this pleasure to whom
you are deciding to acquire for the rest of your life, that pleasure is superior.
 It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates
dissatisfied than a fool satisfied.
This basically states that you should enjoy the higher pleasures, and discard the base
pleasures as they make you a "pig".
________________________________________________________________________
BAR v. LIBRARY EXAMPLE

 Suppose you make a decided preference of going to the bar rather than the library, and
you have visited and appreciated the value in both.
 At this point, if you choose the bar, you would be called a 'satisfied pig'. He says that the
higher pleasure must be cultivated and nurtured, and in the absence of this cultivated
nurturing, a person would necessarily make "wrong" choices.
"Men lose their high aspirations as they lose their intellectual tastes, because they have
not time or opportunity for indulging them; and they addict themselves to inferior pleasures,
not because they deliberately prefer them, but because they are either the only ones to which
they have access, or the only ones which they are capable of indulging".
This means that after a while, a person becomes incapable of enjoying these "higher
pleasures". The point being that a young child must be exposed to the higher pleasures,
as the base pleasures are pleasures which would come naturally. A taste for intellect, a
taste for music, a taste for art does not come naturally, and has to e cultivated. What
Mill tells us is this:
If you prefer the lower over the other pleasure, your taste for the higher pleasure has
not been properly cultivated.
  If you are sufficiently exposed to the higher pleasure, you may indulge in the lower
pleasure, but you won't decidedly and consciously choose the lower one for the rest of
your life.
____________________________________________________
Policy Implications

It would be a just policy if it deprives people of one capacity which does not encourage
"higher pleasures".
A prohibition of pornography or banning of drugs, or certain other things which are
considered enjoyable, but which do not separate us from other animals, would in Mill's
opinion, be totally justified.
"Utilitarianism therefore, would attain its true end by the general cultivation of nobleness of character, even if
each individual were only benefitted by the nobleness of others, and his own, so far as happiness is concerned,
were a sheer deduction from the benefit."
If such a policy is adopted, it would be in the higher interest of the higher number of the
population. The ultimate reason for cultivating these policies is happiness. The difference
between Bentham and Mill is that Mill adds the dimension of time to Bentham's
utilitarianism. Mill thinks of long-term happiness, and collective happiness according to him,
would be encouraged if we make that distinction between good and bad pleasures.
Happiness in the long-term, requires a conscious distinction between pleasures.
________________________________________________________________________

SUMMARY

1. Pleasures are qualitatively different.

2. Pleasures of intellect have a higher value and are more desirable.
3. It is possible to identify superior pleasures.
4. Higher pleasures need to be cultivated.
5. People with noble character make others happier.
6. It serves utilitarian goals and is compatible with utilitarianism to recognize such
qualitative differences.

INDIVIDUAL LIBERTIES IN MILL’S UTILITARIAN

APPROACH
Example: The Anti-Sikh Riots (1984)

In the 1980s, there was a demand for an independent State of Khalistan. Prominent
leaders in this regard emerged, and there was prominent support from the international
community for this Khalistan, and many countries were willing to recognize Khalistan
as a country. These people had already created a flag, an army, a Constitution. One of
their headquarters was the Golden Temple. The situation was so bad at the time, and
 the tension was so high that there was persecution of Hindus in Sikh communities.
Smt. Indira Gandhi, the Prime Minister at the time, gave the operation to the military.
Gen. Vaidya conducted Operation Blue Star, and wiped out the Khalistani terrorists,
which was followed by Police Inspector K.P.S. Gill. Operation Blue Star created a lot
of hate in the Sikh people against Indira Gandhi.
October 31, 1984: Smt. Indira Gandhi was assassinated by her own bodyguards.
November 1, 1984: Riots erupted in all parts of the country.
 Four days of violence in northern India, particularly Delhi, during which armed mobs
killed Sikhs, looted and set fire to Sikh homes, businesses and schools, and attacked
Gurudwaras, in response to the assassination of Indira Gandhi. The Hindus were
divided as to this situation, and Sikhs were brutally killed on the streets.
 It is alleged that political party leaders met with local supporters to distribute money
and weapons. 100 rupee notes and bottles were handed to kill Sikhs. Governments
instigated the mobs, and no prosecutions were conducted for these riots.
 The Lok Sabha dissolved after Indira Gandhi's death. General Elections announced in
the same month, and the Congress (I) won 409 seats in the Lok Sabha, and the
Congress (I) won all the seats in Delhi. This was inspite of how many of their
candidates, even those who stood for elections there, were alleged to have been implicit
in this incident.
 Question thus becomes: Is what the mobs did, justice?
If the utilitarian perspective of 'greatest happiness of the greatest number principle' is
adopted, the problem in principle, is how to accommodate the idea of rights into the
idea of happiness. While believing that happiness is the ultimate idea of justice, how is
the idea of individual rights, especially the rights of the minorities, fitting into this? Is
there a place for individual liberties in the idea of utilitarianism? The answer is
apparently, no.
________________________________________________________________________

QUESTIONS

1. How to protect individual liberties?

2. What liberties need to be protected?
3. Why should we protect individual liberties?

 Mill recognizes that the majority may become tyrants. When society is itself the tyrant,
it is impossible to escape it. There is a limit to the legitimate interference of collective
opinion with individual independence, and to find that limit, and maintain it against
encroachment, is indispensible to human affairs.
 You are sovereign within your mind, and the sole intention for which interference in
others' liberties is justified, is self-protection. This idea of sovereignty over self, has one
exception, which is harm to others. At this point according to Mill, your sovereignty
over your self can be violated. As a member of a civilized community, this is the only
reason there should be interference in others' liberties.
 State can, as a justification for a cigarette policy, give the reason that you c
  annot harm others but you can choose to harm yourself. Accordingly, they can restrict
the areas of smoking, but they cannot ban or eradicate it completely.
________________________________________________________________________

FREEDOMS IDENTIFIED BY MILL

 Freedoms which get protection, are rights. Therefore, when Mill talks about
sovereignty, and which interests are to be protected in the interest of this sovereignty,
he narrows it down to these three:

1. Freedom of inward domain of consciousness, including freedom of expressing and

publishing opinions; [Unless you harm others, you have complete freedom of
expressing any opinions and publishing the same]
2. Freedom of tastes and pursuits, so long as we do not harm others, even though they
should think our conduct foolish, perverse or wrong [This is under the condition that
the taste or pursuit so pursued, cannot infringe upon the rights of tastes of others];
3. Freedom to unite for any purpose not involving harm to others;

 It is proper to state that I forgo any advantage which could be derived to my argument
from the idea of abstract right, as a thing independent of utility. Utility is the ultimate
appeal on all ethical questions; but it must be utility in the largest sense, grounded on
the permanent interests of man as a human being.
 Eg. If a policy decision on preventive detention is to be taken, Mill would justify the
same. He would say that even though your right to freedom would be compromised,
he would say that it was justified as it makes the largest population happy. Mill does not
distinguish a single human being, as having an existence independent of the collective.
The ultimate moral appeal in every case, is collective happiness. There can be no
assumption of human rights in Mill's theory, and Mill only wants human rights if it
makes the collective happier. If it does not make the collective happier, then these
human rights do not exist. This goes fundamentally against the principle of human
rights, which starts on the assumption that all individual humans have rights.
 However, if as a principle, we recognize the principle of protection of minorities, we
are protecting everyone at some level. This is because by recognizing a right in one
person, we make everyone happy. It has instrumental, but no intrinsic values.
________________________________________________________________________

ANSWERS TO THE QUESTIONS

1. How to protect individual rights? By recognizing rights.

2. What liberties need to be protected? Consciousness, of tastes and pursuit, to unite,
of publishing and expressing.
3. Why to protect individual liberties? Because they serve permanent interest of
mankind.
________________________________________________________________________
SUMMARY OF MILL'S IDEA

 There is a qualitative difference in pleasures.

 There is a need to cultivate a habit for good pleasures.
 Individual liberties need to be protected to serve the permanent interests of mankind.
 There is no such thing as an 'abstract right' [This can be used to justify something like
narco-analysis].

HOW IS HAPPINESS IN THE UTILITARIAN MODEL TO BE

MEASURED?
PROPOSED CIGARETTE BAN EXAMPLE

The Economic Analysis is a modern form of utilitarianism, propounded by contemporaries

who formulated the same not 70 years after Mill.

Cost-Benefit Analysis
Philip Morris' (Czech division) study

Cost

1. Increased healthcare costs;

2. Loss of tax revenues from cigarette sales due to early death;

Benefits

1. Tax revenues from cigarette sales;

2. Healthcare savings (when people die early);
3. Pension savings;
4. Savings in housing costs;

Accordingly, smokers' early mortality and cigarette-tax revenue, outweighed the costs of
healthcare and lost tax revenue from early death.

Net gain if citizens smoke = $147 million

Savings from premature deaths = $1227 per person

Question: Should the State promote smoking?

________________________________________________________________________
ENCOUNTER KILLINGS EXAMPLE
Dawood orchestrated 13 bomb blasats on March 13, 1993 to avenge the killings of Muslims
in Mumbai riots two months earlier.
Dawood created a Rs. 50,000 crore crime underground empire.
A Crime Intelligence Unit (CIU) was formed, comprising Pradeep Sharma, Ravindranath
Angre and Aslam Momin, to reduce this underworld issue. Between 1999 and 2004, CIU
almost wiped out the underworld. In just five years, the police used dubious extra-judicial
killings, passed off as encounters to silence the underworld with over 500 such killings.
Gangsters were abducted, detained and then shot in cold blood. Weapons were planted on
their bodies. Encounter spots were usually lonely road stretches.
The CIU was accordingly, disbanded by the Mumbai police in 2004. However, after this the
members of the CIU were put on trial for the extra-judicial killings.
All three of them were dismissed and faced trial for their killings, even though they, as per
one source, "wiped out the underworld".

"The only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others."
-J.S. Mill
"The sole end for which mankind are warranted, individually or collectively, in interfering
with the liberty of action of any of their number, is self-protection."
-J.S. Mill

Questions:
1. Should the State promote 'encounter killing'?
2. Should the CIU officers be punished for encounters?

 According to Mill, since there is no abstract right, these people do not have an intrinsic
right to fair trial. Assuming 100% efficiency in how every person so killed is a gangster,
Mill would perfectly justify the curtailment of this liberty.
However, killing of a person by encounter killing, is not accepted and cannot be
sanctioned by a State, because the State breached its promise of having a procedure.
The people consented (impliedly) to the law which prescribes the procedure. However,
if the State creates the procedure and then itself violates it, it is principally wrong.
Utilitarianism, in principle, undermines consent. Even if consent is not there, harm can
be done to a person, if it is in the better interest of society. It accordingly undermines
the value of consent in the formation of governments.
________________________________________________________________________
THE DIFFICULTIES IN MILL'S VERSION OF UTILITARIANISM

1. Individual liberties are not protected for their own sake (there is no such thing as an
'abstract right').
2. It allows the State to interfere in an individual's life in the name of promoting virtues,
and in the name of greater security for all, for they serve the permanent interest of
mankind.
3. Individual as an individual, has no value.
Another powerful premise that goes directly against the principle of utilitarianism, even by
Mill, is the idea of consent. [Cue: Role of Consent page]. E.g., While we made a promise
to abide by the rules imposed by the Government, the Government made a promise to
ensure fair trial, procedure. Encounter killings are, in this regard, a breach of this consent.
Even hardcore criminals are entitled to this, as they have consented to a civil society and not
one founded on absolutist diktats. The contract between the State and the individual is as
per this argument, one of bilateral reciprocity.
________________________________________________________________________

THE ROLE OF CONSENT IN JUSTICE

QUESTION: Should consent be the central premise of the idea of justice?

Example: The History of the Mehrangarh Fort

 In the early 15th century, King Jodha came to this area. When he came to power, he
wanted to construct a fort bigger than the Mandore fort, in order to encourage
migration to his area.
 In construction of forts, they are constructed on elevated areas. The only hilly area in
this region is the area on which this (Mehrangarh) fort is constructed.
 There was a saying in the area however, by the person who was the proprietor of that
hill. He was asked to vacate the hill by King Jodha, but when he refused, he declined to
leave. The story says that as he left, he performed a curse on the kingdom. The curse
was that the kingdom of Jodhpur that he sought, would always be deprived of water.
 The King consulted an astrologer to find the solution to the curse. The astrologist said
that while constructing the fort, you bury a human being at the foundation. The King
announced in the city, that a human being has to be buried at the foundation, and that
one person had to come forward for this purpose.
 One person, Rajaram Meghwal, came forward to volunteer for this purpose. He
accepted to be sacrificed on the condition that his family would be taken care of and
given some land. Eventually, he was buried alive and a lot of land were given to them.
Accordingly, Rajaram Meghwal's family continues to enjoy the benefits even today. It
was a promise that has been honoured. There is a stone outside the stone, dedicated to
Rajaram Meghwal.
The question becomes: Was it a just transaction?

 The King, as a ruler, had a lot of power. Meaning, he could have asked anyone to force
that person to be buried. Furthermore, at any point, there are many people serving
prison sentences. He could have also picked up a prisoner, but he did not do that.
There was perhaps, also a person awaiting his execution by death. He could have
picked that person up for this purpose.
 However, he wanted someone to come forward voluntarily, and wanted to compensate
this person accordingly. In this way, this transaction could be termed 'just'.
  However, there is a power imbalance here, and only a person who is not well-placed
and who see a bright opportunity in this offer to do something for their family. In
essence, this states that consent is not free. This proposition is further extended to state
that consent in these circumstances cannot be free.
 In jurisprudence however, this empirical ground is not an argument is not a
consideration. In principle, free consent cannot be said to be a non-existent ideal.

Upon assuming that in concept, free consent exists and that there is absolutely free and
unadulterated consent in this case, the questions this raises principally are simple:

1. Does consent justify 'any' transaction? Should there be some limits on consent?
2. If no, then why not? If yes, then what are those limits?

Cue in idea of civil liberty v. natural liberty. The idea that consent is the basis of justice is based
on an idea of self-autonomy, suggesting that a person has autonomy over all his actions and
that since a person owns his life, he can do whatever he does. This is antithetic to the idea of
utilitarianism, as the greatest happiness principle is directly rebutted. When 'permanent
interest of mankind' is used as a justification, it undermines the idea of consent. This brings
us to a secondary question as to whether we truly 'own' ourselves.
If society loses threshold moral conditions, then there is a minimum critical morality
required for the existence of society. No society will ever say that we survive sans morality. If
the morality of the society falls below such a level, the society would disintegrate. Critical
morality is the basic morality needed to bind the society together. If conduct falls below the
critical morality, it threatens the existence of morality altogether.
Even if we own ourselves, can we do anything with our body or life?
The answer therefore, will be that consent is limited by critical morality, and threshold moral
conditions. What that threshold shall be, is debatable. Philosophically, it is acceptable that
while consent has to be an idea of justice, it cannot be unrestricted. One cannot consent to
have incestuous sex, for instance.

CONSENT AS THE BASIS OF JUSTICE

The ultimate reasoning for advocating consent as the basis of justice lies in how self-
autonomy is absolute, and that utilitarianism undermines this self-autonomy in favour of the
collective. The conception begins with the premise that the person is the 'owner of his life'.

THE INTERPLAY BETWEEN JUSTICE, MORALITY AND

RIGHTS
 The idea of morality acts as a basis for justice, because justice is in essence,
determined by what is considered morally right or wrong and from a utilitarian
 perspective, what is considered right or wrong by a larger segment of the
population.
 However, the question then becomes: What acts as the basis for morality?
 The context of the question of justice is how we organize our society, in essence
asking the question as to what the core value of our society is. This, in a legal
perspective, could be asking the question: What values should be insert in our
Constitution?
 Societal organization, which has to be done on the touchstone of justice, and
utilitarianism is one of the proposals that attempt to answer this question.
Utilitarianism believes that society should be organized on the basis of utility. They
(the authors of utilitarianism) state that utilitarianism is a just principle because it is
morally good. If Bentham or Mill are asked, why the principle of utility should be
adopted, they will say that it is moral. However, when they ask why it is moral, they
will state a particular conception of humans and humanity that drive their
assumptions. The assumption in case of utilitarianism, is that we are pleasure-
seeking entities. Therefore, it is moral for us to seek pleasures.
 Once an assumption of who human beings are has been created, it creates a notion
of morality, and then further creates a notion of justice. From the morality or
assumption of humanity point of view, the rights that people should have would
firstly be preceded by the question: why should people have rights?
 The answer to this question would depend upon your conception of humanity.
The foundation of rights for utility, is the collective enhancement of people. You
should only have those rights, which enhance the collective pleasure of humanity.
Because you are pleasure-seeking animals, you should only have those rights.
 It (utilitarianism) starts with an assumption of humanity, an assumption of self.
There will however, come a point where no empirical evidence as to an assumption
can be found. At this point, a moral assumption would be taken to organize
society, and the organization of society would be just or unjust depending on
whether and how they link to the core principle of what the society considers just.
E.g., The right to self-incrimination. Suppose we say that to enhance collective
happiness is justice, this right would be patently denied. If one asks why the
collective happiness has been prioritized here, the answer would be that since
humans are pleasure-seeking beings, we should enhance collective happiness.
Nobody should have a right that goes against this principle of collective happiness.
The right to self-incrimination is therefore, an abstract right, according to utilitarian
perspectives.
If this has to be challenged, we have to state that there is a different ultimate end-
goal to humanity and justice. Starting from one starting point, only certain
particular conclusions can be reached. What this starting point should be, is the
real question. In all these models of justice, there are different starting points. Our
starting point would be determined by our conception of self and human beings in
general.
 If one looks at any particular system or model, the answer has to be that if
something is just, it has to be moral. This is because any model bases its idea of
 justice, on its idea of morality. Legal but immoral is possible, but it is not possible
that something is just, but immoral. Therefore, legality and justness are two
different things, as legality and immorality can go hand in hand, but justice and
immorality can never go hand in hand.

JOHN LOCKE’S LIBERTARIANISM

 John Locke's book, "Second Treatise of Government".
 Locke starts with the premise that the life that we have got is not ours, we have been
given the same by God. It is only during God's pleasure that we enjoy this life. It is
only God that decides when we take birth and when we die.
 We therefore, are not the owners but the custodians of our life. The real owner is God,
who gives us a life temporarily to enjoy. Since we are not the owner of this life, our life
has to be lived with some restrictions.
 No one ought to harm another in his life, health, liberty, or possessions."
-John Locke
 The state of nature according to him, has a law of nature to govern it. Everyone is
bound to preserve himself, and not to quit his station wilfully.
 From the idea of life therefore, emerges an idea of liberty. "Live and let live" principle.
Other than God, no other human being can interfere in one's life. This means to say
that the right to life and liberty emerges from this idea. Liberty here, has a negative
connotation in how it means 'freedom from interference in the enjoyment of my life'.
 A third right to property emerges from these two rights. This is because God has given
us our faculties of the body, and the faculty of time. There is therefore, a capability to
do labour. Material for the same, is available. If labour is mixed with the material
around, a thing that is created is an extension of oneself. If one is a custodian of his
life, one's labour is his. The form that the labour takes, is also his. Therefore, the
property so gained also belongs to oneself.
 Therefore, the three rights emerging from Locke's basic premise of 'God owns us' are:
a. Right to Life [It is a limited right, because one cannot kill oneself, but from
another perspective, the right is so strong that we cannot interfere];
b. Right to Liberty;
c. Right to Property;
 These rights, according to Locke, are inalienable rights. These rights cannot be
transferred, sold or relinquished. In short, a transaction that infringes upon these rights,
even if consented to, cannot be sanctioned. These rights exist, according to Locke, in a
'state of nature'. This means that even prior to the existence of government, these
rights exist. These rights are not contingent upon the existence of State [God-given rights].
He calls these 'natural rights.'
 These rights, while they exist, are not protected in the state of nature. Every human
being is personally free to protect himself, and he will himself declare as to whether the
measures he takes to protect are the best measures.
  Therefore, it is necessary according to Locke, to form governments. After the
formation of governments, there will be regulations or rules for the protection of rules,
and there should be impartial judges, and there should be an Executive to execute the
decrees passed by the judges.
 This raises the question: How do we form a government, without surrendering the
rights?
 He suggests a surrendering of rights, and that the government would basically grant
you rights once the power to do so has been given to the government.
 Locke believes that the surrendering of rights takes place so that there is greater
protection of the rights so surrendered. He states that we are forming civil society for
the purpose of greater protection ot the right of life, liberty and property. After
governments are created, government cannot interfere in the life or liberty of the
people for collective happiness. The only interference allowed is for the protection of
life, liberty and property.
 The government should "govern by established standing laws, promulgated and known to the
people, and not by extemporary decrees, by indifferent and upright judges, and to employ the force of the
community only in the execution of such laws, and all this is to be directed to no other end, but the
peace, safety and public good of the people".
 Fuller, who founded his theory of law on an idea of procedural morality, was
influenced by Locke in creating his eight desiderata.
 'Public good' herein does not mean collective happiness, it merely means that it should
be for the purpose of the protection of life and liberty of the people.

Question: Can the State prescribe a law allowing for the death penalty?

 The idea of death penalty, is antithetic to the idea of ownership of one's life, even by
God. How then, can State kill a human being? When we said that the purpose of law
was the greater protection of life, we did not agree to allow for the State to kill us.
 When a social contract is entered into, the reason is to allow one to be better off, not
worse off. Therefore, the rights in the state of nature should be more protected where
there exists a State.
 Locke therefore, clearly defines a scope for law-making powers. Law cannot be made
for any other purpose other than for protecting the life, liberty and property of a
person.
 John Locke however, states that a law prescribing the death penalty can be made.
 Death penalty in Locke's model, can be instituted where it upholds the principle of life.
This warrants the distinction between life of an individual, and life as an idea. E.g., in
China, corruption warrants a death penalty. Corruption here, affects the general wealth
and happiness. Therefore, if one kills a corrupt person, the principle protected is that
of collective happiness. This means that one violates the idea of life itself. However, if a
person commits murder, or is a heinous rapist, and such a person is killed by the State,
the State is protecting life. This means that the death penalty can be accommodated in
Locke's model as long as it is for those offences that directly affect life. However, if a
 moral offence is punished with a death penalty, John Locke would not accept it as a
just form of punishment.
 Similarly, liberties can also be interfered with by the State, if the principle of liberty is
protected.
 The ultimate justification for law-making has to be the protection of life, liberty and
property.

LIMITATIONS ON LEGISLATIVE FUNCTIONS

1. The State cannot be absolutely arbitrary over the lives and fortunes of the people
[Procedural constraint];
2. The supreme authority is bound to dispense justice, and decide the rights of the subject
by promulgated standing laws, and known authorized judges;
3. Supreme power cannot take from any man any part of his property without his own
consent;
4. Legislative cannot transfer this power of law-making to any other hands;

In this theory, liberty does not mean self-ownership. It merely means non-interference.
However, the conception of liberty herein demands self-restraint. This is therefore, a
conservative form of libertarianism. Others cannot compel one to do something good for
one's health, as others are not stakeholders in one's life, this would be an absolute liberal
stance. However, Locke states that one must not smoke, because it is bad for one's health
and one should not do anything that acts ultimately in detriment of one's health.

The American Declaration of Independence in 1776, borrows from Locke's idea. It starts
with Locke's assumption, and talks about inalienable rights of life, liberty and the pursuit of
happiness. The document, which states that this is the sole purpose of government, states
that government has to be overthrown if it refuses to conform with this ideal. Therefore,
this is the foundation of modern liberal democracy. 'Imposed morality' is, in concept,
rejected by this idea of a libertarian democracy. Locke's model is libertarian with a
conservative flavour, and has become the foundation for national liberal democracies,
beginning with the United States.
________________________________________________________________________
_____________________________
QUESTIONS

1. What are the things that can be justified under Utilitarianism but NOT under
Locke's version of Liberalism?
Encounter killings?
Torture of suspects?
Right to die/Euthanasia/Santhara?
While the State cannot compel you to be healthy, you in Locke's model, are not allowed
to do anything that ends your life. From a utilitarian perspective, if Santhara makes the
larger population happy, it would be a just practice. Locke however, would consider
 this unjustified as one cannot do anything that is detrimental to one's life. This is
because liberty does not mean unlimited or unfettered possibility. Liberty here means
'enjoy your life responsibility'. Liberty has an inherent connotation of responsibility.
Accepting death by consent?
The Mehrangarh example can be taken here for instance [cue: Role of consent page]. To
understand this, death by consent should be compared with the death penalty in
Locke's model. Accordingly, when one states that one is handing out the principle of
death penalty, and one states that the death penalty upholds life. In this sense, the death
penalty must be looked at, as being retributive. When Locke justifies the death penalty,
he restricts the ambit of the same to offences that harm life, not those which impact
public health or morality. Locke, who states that the promotion of morality is not the
reason for formation of governments, would not justify the upholding of morality.
Therefore, for instance, a Chinese law allowing for the death penalty for drug offences
would not be just in Locke's model.
However, in case of death by consent, it would not be allowed by Locke because one's
life does not entirely belong to him, and he therefore does not have the right to end his
life. Liberty is inalienable and un-absolute.
Compulsory military service? [Conscription]
It is not the purpose of the State to inculcate any kind of moral values. Conscription is
inherently inspired by an idea of nationalism, or protection of national interest. This is
imposed morality, and would not be accepted by Locke.
Prostitution?
Same-sex relationships?
Abortion?
Retrospective laws?
2. How will you explain the distinction between 'Law' and 'Policy' with the help of
Locke's liberalism?
3. From Locke's point of view, what should be the State's line of argument for
defending a legislation (when challenged) before a court of law?
The government has to show that the legislation is making life better off. In Locke's
model, the government has to prove that liberty is protected better with the legislation,
than without. In a utilitarian perspective, all the government would have to prove is
that the government is protecting the greater happiness of the greater number of
people.

How will these issues be differently argued from the Utilitarian and Libertarian perspective?
The argument in here is based on a common principle. From a utilitarian perspective,
restrictions can be imposed on grounds of morality, public health, public safety and life.
From a Libertarian perspective, liberty restriction can only take place for very specific
reason. If the liberties under Art. 19(1) of the Constitution are to be curtailed for instance,
public morality or health, a libertarian perspective would patently disallow it. This is because
the only grounds for allowing any restriction on liberty if it protects the right to life, liberty
and property.
QUESTION: Who is God in Locke's theory? What happens if one doesn't believe in
God?
Locke states that even with a non-belief in God, a rationality perspective would necessitate
that the libertarian perspective.
 LAW OF EVIDENCE
UNDERSTANDING THE ROLE OF EVIDENCE
 Article: Thomas Weigand - Is The Criminal Process About Truth? (Prescribed text in
the Module)(Read the first three parts)(IMPORTANT!).
This article initially talks about the criminal justice and the role of truth, and whether truth in
itself is a goal, or merely the means to an end, the end of course being the determination of
guilt. It discusses both the inquisitorial and adversarial systems, and attempts to identify and
accentuate the distinctions, lacunae and important identifications of the systems. He further
talks about compromise systems, with the example of Italy. He then talks about a jury, and the
system which he, in the end, describes as "irrational" yet perhaps necessary.
The author in the fifth part, takes down the very basic assumption of his article: that the
criminal justice system is interested in finding the truth. He talks about how the point of the
system is conflict resolution. He talks about how the system is designed in a manner which in
itself, is not interested in finding out the truth.

 Inquisitorial and Adversarial Systems of Justice:

Inquisitorial System: In an inquisitorial system, the third party (a neutral party), has the
responsibility of ascertaining the facts. This is a predominantly European system. The impact
of such a system, is that the evidence is presented to a third party. There is no personal
investment involved in the investigator in such a system, and creates a level of disinterest in
the investigator, who is acting as a third party.
Adversarial System: In an adversarial system, both parties present their own versions of the
story (the alleged 'truth'). A neutral party is called upon to adjudicate the truth and/or falsity in
the claims presented by both parties. An adversarial system allows for allegations and cross-
allegations.
 The Inquisitorial System in Europe was influenced by the Church. Therefore, wrongdoing was
condemned not just as an act against the State, but an act against the faith. Separation of
Church and State was a development of the eighteenth and nineteenth century. The
Inquisitorial System based itself on an idea of 'rightness', and the methods to ascertain truth
were ignored in favour of ascertaining the truth itself.
 In the modern situation, safeguards to accused are inherent and intrinsic to most criminal
justice systems.

THE JURY SYSTEM

 The role of evidence in a jury system, as opposed to judges, is different. A jury, because of lack
of legal training, treats the questions in cases as questions of inherent morality.
 The jury presents a challenge that there is censorship in what is emphasized to the jury, and
what is actually never mentioned.
 It also presents the logistical challenge of conducting the trial as fast as possible, with the jury.

TYPES OF EVIDENCE: PERSONAL AND REAL EVIDENCE

 Evidence can be divided into personal and real evidence.
  Bentham said that all evidence either flows from person or from real objects.
 Read: "Real" Evidence - Sidney L. Phipson.

The Need To Look Into Real Evidence: The early methods to collect evidence and to ensure
"justice" were, to say the least, barbaric. The need for classification of real evidence by Bentham, was
fuelled by the need to be done with such barbaric practices.

 Material Object: Any object that can be presented before a court. Therefore, the idea of
"reported" evidence is being done away with.
 The categorization of personal and real evidence is based on source.
 Indian Evidence Act is concerned simply with fact.
 There are three categories:
a. When the judge himself perceives the evidence;
b. When the perception of a person is taken as evidence. This is not taken at face value to
be fact. Bentham allows for this kind of perception evidence as reported evidence.
However, Indian law does not consider such evidences.

QUESTIONS FROM THE ARTICLE (Phipson Article)

1. Would an expert opinion be "reported real evidence" or "personal evidence"?

The author ignores this question. Where a person is using skill to make deductions, would be
used as personal evidence. There are certain things for which expertise is necessary. However,
considering that the doctors' opinions would be uniform, this raises the question as to why it
cannot be reported real evidence. However, even if 20 doctors say the same thing, it does not
become fact. It just becomes 20 individually identical opinions. Because the doctor did not
actually see the incident happening, the doctor is drawing inferences based on certain things
that the doctor can see. Therefore, in a Benthamite category, this would still be "personal
evidence".
2. What about DNA samples? Reported real evidence or personal evidence?
This raises a different perspective, as unlike in the doctor's case, the DNA was actually present
at the crime scene. The argument for the doctor's evidence being personal, is that the doctor
was not physically present. Assuming that fingerprints or DNA are real evidence, and their
validity as evidence is not challenged, the question as to whether this person's expert opinion
becomes personal or real evidence gains more ground.
3. The author uses the term "physical real evidence". Is there any other kind?
Real evidence flows from things or persons.

 The author criticizes Stephen for not adhering to the criteria of personal and real evidence.
 Bentham's criteria cannot be applied on a contemporary context. Stephen, who focuses on
relevance rather than source, adopted a utilitarian approach and accordingly created a
distinction of oral and documentary evidence, rather than a personal or real evidence
distinction as proposed by Bentham.

ADMISSIBILITY AND RELEVANCE OF EVIDENCE

 If a fact is proven, it is then and only then that a fact can be relied upon in a verdict. To
ensure their validation, proof is necessary.
 The distinction between relevancy and proof, is the distinction between whether a fact is
proven and how the fact is to be proven and whether it can be relied upon. That is, what
facts may be proved? And How must a fact be proved, assuming that proof of it may be
given?
 Before the Indian Evidence Act was drafted, the nature of jurisprudence was such that
everyone could state what was not evidence, but it could not really state what was
evidence.
Basically, this was like writing a description of cats based on the understanding, "A lion is
not a cat, a tiger is not a cat, a dog is not a cat". The question of what is evidence, is
ambiguous.
 [P. 17 in A Digest on the Law of Evidence] The Law of Evidence is that part of
procedural law which with a view of ascertaining individual rights and liberties, seeks to
ascertain:
a. What facts may, and may not be proved, in such cases;
b. What sort of evidence must be given of a fact which may be proved;
c. By whom and in what manner the evidence must be produced by which any fact is
to be proved;
 Facts-in-issue and facts relevant to issue distinction [p. 17, pdf].
Fact-in-issue in a case where a stabbing is alleged, is whether the accused stabbed the
victim. A fact relevant to the issue is whether the accused owned and possessed the knife,
and was seen leaving the scene of the murder with the knife in hand. This fact of the
knife, is not the fact-in-issue, but a fact that is used to infer that the fact-in-issue took
place. All the facts relevant to issue, once proven, show the guilt or innocence of the
accused.
 Four criteria of facts have been excluded for the purpose of trial, by the law of evidence.
These four are:
a. Facts similar to, but not specifically connected to, each other;
b. The fact that a person not called upon as a witness has asserted any fact;
c. The fact that any person is of an opinion that a fact exists;
d. The fact as to the character of a person, such as to render conduct imputed to him
probable or improbable;
 The Evidence Law also talks about how (the manner) in which a fact in issue or relevant
fact is to be proven. Stephen's only consideration in this regard, is as to what fact it is that
is to be proven.
 According to Stephen, the Law of Evidence is entirely procedural. However, this is
debated as the law of evidence is also substantive according to certain contemporaries.
 According to Stephen, evidence must be confined to matters-in-issue. Stephen discusses
these in the form of certain rules of evidence that can be derived by understanding the
existing principles on evidence:
a. Evidence must be confined to matters-in-issue;
b. Hearsay evidence is not to be admitted [He said that hearsay generally connotes
irrelevancy. However, what hearsay means is that somebody who has not come
before the court as a witness, is being alleged of having said something. The English
law sentence used herein (cited above) equates hearsay to irrelevancy. He therefore, in
his scheme, lays down a lot of relevance to 'relevant fact'];
c. In all cases, the best evidence must be given [];
 Facts which need not be proven: This comes under the concept of judicial notice
covered under S.57 of the Indian Evidence Act.
 E.g., In the 1858 murder trial of William Armstrong, his attorney, then-former
Congressman Abraham Lincoln, used judicial notice to establish that a claim by a witness
to have used moonlight to see events could not have taken place since there was no
visible moon that evening. This led to Armstrong's acquittal.
 While S.57 covers most aspects which are covered under judicial notice, there may be
certain aspects which are not covered under the provision, but which may nonetheless be
taken at face value;

INTRODUCTION TO THE INDIAN EVIDENCE ACT, 1872

 The Indian Evidence Act applies to all the courts in the territory of India, except Jammu
and Kashmir, court martials under the Army Act, arbitration proceedings.
 In Section 3, "court" includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorized to take evidence.
Question: Does this include tribunals (for instance "NCLT and NCLAT")
All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228, and for the purposes of
section 196 of the Indian Penal Code, and the Tribunal and the Appellate Tribunal shall
be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the
Code of Criminal Procedure, 1973 [S.424(4), Companies Act, 2013].
The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding
before it or, as the case may be, an appeal before it, be bound by the procedure laid down
in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural
justice, and, subject to the other provisions of this Act 1["or of the Insolvency and
Bankruptcy Code, 2016] and of any rules made thereunder, the Tribunal and the Appellate
Tribunal shall have power to regulate their own procedure [S.424(1), Companies Act,
2013].
 Case: Union of India v. T.R. Varma (1957)(Supreme Court)
Here, the contention by the Respondent was that there was no examination-in-chief
allowed, while a cross-examination was directly conducted. Here, the enquiry was before
an administrative tribunal. The Court herein held:
"It is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode
prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even
though they may be judicial in character. The law requires that such tribunals should observe rules of
natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached
on the ground that the procedure followed was not in accordance with that, which obtains in a Court of
law" [Para 10].

RELEVANCY OF FACTS
 Sections 6 to 11 of the Indian Evidence Act, along with Sections 14 and 15, talk
about the relevancy of facts.
 Section 6 talks about the relevancy of facts forming part of the same transaction.
This section basically tells us that while there are certain facts-in-issue, certain facts
which are connected to these facts-in-issue, i.e., facts which are part of the same
 transaction as the fact-in-issue, are relevant in determining the existence or lack
thereof, of the fact-in-issue.
 Time-lapse in this case, is not entirely a relevant fact in understanding whether an
act forms part of the same transaction.
 Case: Rattan Singh v. State of Himachal Pradesh (1997)(Supreme Court)
[Para 11] The discussion also pertains to Section 32 related to dying declaration.
[Para 16] Here, the Court discusses how, even other than S.32(1), illustration (a) of
S.6 has been discussed, in order to bring the above evidence within the ambit of
the case. The Court held it to be hence, part of the same transaction, thereby
making it a relevant fact that has to be taken into consideration. Herein, proximity
of time and space were said to be relevant, and the victim's pronouncement of the
accused's name before her death in the dead of the night, was a relevant fact.
 Case: Sukhar v. State of Uttar Pradesh (1999)(Supreme Court)
Nakkal wanted a bataai [land division], and Sukhar, being undesirable of the same,
shot Nakkal. A few days later, Nakkal died but there was no real evidence pointing
to how Sukhar caused the death. Here, a person claimed he came up to Nakkal
after hearing the shot, and heard Nakkal state that Sukhar had caused the shot.
[Para 6] It states that Section 6 is an exception to the rule that hearsay evidence is
inadmissible. This states that hearsay is admissible, insofar as it is
contemporaneous with the acts. [Para 7] Sarkar's Law of Evidence is relied upon,
and four points have been put down based on the illustrations (Imp.). While
proximity is not applicable in every case, where it is present, it can be considered a
relevant fact in allowing the admissibility of the declaration. A declaration does not
act as absolute proof of truth, which basically means that it is admissible, but not
conclusive. The Court points out that in his testimony, he said that by the time he
came, a crowd had gathered and then Nakkal stated that Sukhar shot him. So why
not bring the rest of the crowd? So, even while admissible, the 'witness' testimony
here was not taken to be conclusive in determining his guilt, and Sukhar was
acquitted.
[Para 8] The Court discusses a different case, pointing out how Section 6 espouses
the explicit doctrine of res gestae.
[Para 10]They admitted the evidence, based on the application of the Rattan Singh
judgment. However, the court talks about proximity of time as being relevant,
citing illustration (a) to Section 6.
 LAW OF PROPERTY, EQUITY AND TRUSTS
INTRODUCTION
 Aristotle talks about equity as domains where human conduct is to be generally regulated.
These are situations where rigours are made flexible, and rules of understanding situations and
circumstances need to be accordingly understood and formulated in order to fully allow for
just systems.
 The question however, becomes as to why have the rules, if one is going to be breaking them
anyway? The question in the contemporary context is about how this equity is to be applied by
the courts. England started the revolution for the development of this new understanding.
 Where the reference has to be made to principles of precedent and statute, two courts
developed in England. A Common Law court then, regarded these principles while a Court of
Chancery was a court of equity, equity herein being defined as good conscience.
 Eventually however, this resulted in the development of different equitable principles. These
principles resulted in an institutional distinction, causing difficulties of inconsistency. The
distinction between equity and common law caused a practical difficulty, making this a matter
of jurisdiction. This goes to say, courts made it a jurisdictional distinction and the Common
Law Court rejected the matter and sent them to the Court of Chancery, and back and forth.
 This problem resulted in the Judicature Act, which resulted in a (re)unification of the system.
This now resulted in a uniform development of justice system. This in itself however, did not
solve the problem that equity essentially became disconnected to the idea of common law.
 The basis of distinguishing equity from common law hinges on the idea of discretion. The
situational discretions accorded to the court, which were specific to that case, create this
distinction.

THE CIVIL LAW IDEA OF EQUITY

 Other European systems, on the basis of Roman Law, classified their remedies. There was a
remedy based on restitution, which was developed for cases of unjust enrichment. This
resulted in the intrinsically related question of whether one was entitled to a particular
enrichment, and whether such enrichment was "just".
 This is related to equity, only in the sense that it espouses a principle of good conscience.
However, the civil law only allowed for this in the remedy of restitution. Equity was a wide-
ambit concept, open to many different types of remedies.
_____________________________________________________________________________

PRINCIPLES APPLICABLE TO EQUITABLE REMEDIES

These principles exist more as a matter of guidelines, rather than fixed rules. They have to be
very open-ended and context-specific. These principles are generally considered Snell's
Principles of Equity.

 Equity will not suffer a wrong without a remedy [Recognition that there is a wrong, and that
there is no remedy for this wrong. This principle allows for court intervention, in such a
situation in the interest of 'fairness' and 'good conscience'].
 The principle of equity follows the law [It is not completely independent of the law. It is there
to help the law arrive at its purpose, and is not a law in itself. It would not go to the extent of
vitiating the very foundation of the legal system and is, in that sense, a derivative finding its
base in the law itself]
[Case: Bromage v. Jenning: Monetary compensation if inadequate, can also be
supplemented with performance of contract in the interest of equity].

 An equity equal to a law shall not prevail.

 Wherein equities are equal, the first in time shall prevail [When it comes to providing for
equitable remedies, time is of the essence].

 Delay defeats equity [Doctrine of Laches: If you have allowed a significant amount of time
to lapse between the happening of the event and the bringing of the claim. The delay would
only be a consideration, where the delay allowance would result in an un-allowable claim.
Courts therefore, apply laches on the basis of context. In the Indian context, the Doctrine of
Laches].
[Case: Nelson v. Rye: Musician, who had a claim, took a lot of time in bringing a claim
before the court. The accountant had used money elsewhere, and the delay in bringing the
claim would have resulted in unjust gain. Here, the courts are reluctant to apply the Doctrine
of Laches because the Limitation Act, 1963 clearly specifies periods for different offences.
Courts in India are very specific with respect to the Limitation Act, 1963. In this sense, equity
does not have that major a role to play].

 He who seeks equity must do it [If you claim equitable relief, you must not have done some
wrong yourself (Doctrine of Clean Hands)].

 Equity looks on as done, what ought to be done [If there are certain formal irregularities, the
court might want to overlook those irregularities. This principle is that if there was an
obligation to do 'X', but 'Y' is done, then the obligation has to be looked into when deciding
on the basis of principles of equity].
[Case: Walsh v. Londsdale: Contract for leasing of property in case of rent. The lease
agreement in this case, was defaulted. When the owner brought a claim, he claimed that there
was no signed lease agreement, and that the lease agreement as part of the contract was
unenforceable. The Court used this principle here, stating that while there was a need for a
lease agreement, there is a need to assume that a lease agreement exists. A formality like no
lease agreement, should not result in the lease agreement being vitiated][India is stricter on
formal requirements][Case: Leister v. Lady Leister][Doctrine of Part Performance:
Provided for in Section 53 of the Transfer of Property Act, 1882].

 Equity imputes formal obligations [The Court assumes that acts which prima facie are
ambiguous as to whether an act was done in furtherance of a particular obligation, equity
would assume that they were done in the interest of fulfilling formal obligations].

 Equity rejects form in favour of substance.

 Equity abhors vacuum (Legal vacuum)[Equity will not prefer that a property be left in
vacuum. This talks about a principle of perpetuity in proprietorship, in how it is not preferable
 to have proprietorship remain empty. Property should therefore, not be left in a state of non-
ownership].

 Equity looks to the intention (substantive intent of the parties), rather than the form
[Manifested in Section 74 of the Indian Contract Act, 1872. Instead of sticking to the strict
terms and conditions, this Section provides the court with a certain leverage, wherein the
court can, in the interest of equity, allow for the application of equitable principles][Applying a
principle of clogging of redemption, in order to allow for the best interests of the parties
protected][Consider the adaptation argument made for Vis Claimant Memo].

 Acquiescence and Equity: If a person accepts a very basic wrong that has been in motion
for a period of time, at one point, such acceptance is considered to be acquiescence. However,
the conformity to this civil wrong has to be to the extent that the wrongdoer does not
necessarily feel like there is any wrong committed on his part at all. In the context of equity,
acquiescence can be used as a reason for the application of the principle of equity.
Acquiescence in essence, is like Laches. One of the restrictions is the obvious assumption that
there has to be knowledge about the act or wrong that one is considered to have 'acquiesced'.
Furthermore, legal and statutory restrictions in this regard strictly apply.
Application of acquiescence is inextricably linked to estoppel as a consequence of said
acquiescence.

LEGAL INTEREST AND EQUITABLE INTEREST

 Estate relationships can arise out of a legal interest or an equitable interest.
 Legal interest: Interest which arises out of the strict provisions of the law. Legal interests are
in rem in nature.
 Equitable interest: Interest that arises out of the conscience of (then) the Court of Chancery.
The difference is only one of the source of this interest, because the consequences of these
interests is the same. Equitable interests are in personam in nature, where claims cannot be made
against the world at large, until its legal sanction is acquired (By court or mechanism
otherwise).
In the modern sense, such a difference in interests is diluted down.
 Case: Cave v. Cave [Principle of priority in the context of equity][Equitable interest
vis-à-vis legal interest]
In this case, a trustee [hereinafter "A"] was holding on to a certain sum, for a marriage
settlement between a couple [say "X and Y"]. A commits a breach of trust, and purchases a
land for B with this money. B goes on to mortgage the land gifted by A for a loan by Bank C.
Eventually, B becomes bankrupt. X and Y, the couple whose money was misappropriated to
get this property, claimed that they were beneficiaries to the property. Bank C, because of
default in mortgage, also had a claim in the property.
The interest of the beneficiaries (X and Y) was held to be equitable in nature, while the legal
interest of Bank C was legal in nature. C's interest was given priority as interest prescribed by
law was given priority over the interests of X and Y.
 Today this principle is considered the Principle of Bona Fide Purchaser. This principle
states this:
If a purchaser purchases a property with bona fide intention, without the knowledge of any
 incumbrance or charge against the property, then the charge erstwhile existing on the property
will not hinder the purchaser's right.
 A consideration to this principle is that:
a. There has to be lack of knowledge; [The condition of notice is to ensure that there is no
fraud. However, if there was a reasonable way of enquiry, but you failed to enquire about
the same, the Court would go on to create a presumption against you (Principle of
Constructive Notice). The absence of knowledge for the bona fide purchaser has to be
absolute]
b. Protection is only given if a certain value has been paid for the property. The quantum
of consideration does not matter, all that matters is that certain charges must have been
paid;
 Another principle that has been integrated into the Principle of Bona fide purchaser basically
does not protect gifts or gratuitous payments, i.e., contracts or purchases without
consideration.
 Case: Bank of Bombay v. Suleiman
Suleiman [hereinafter "S"] transfers 30,000 rupees' worth of charge was given to B, in a property
that was in itself, passed on to A. A subsequently mortgaged this property with the Bank of
Bombay in return of a loan, and the Bank of Bombay recognized this mortgage. At this point,
B made the claim of his mortgage. Question arose as to whose claim was to be given effect.
Court said that Bank had to conduct enquiries. Bank did not conduct the enquiries, and did
not, due to their own negligence, realize that the charge was present in favour of B. The fact
that Bank refused to make such enquiries imputes certain knowledge on part of the bank. The
bank was therefore, held to not be a bona fide purchaser by the principle of Constructive
Notice. The right of the Bank of Bombay would be subject to the rights of B.
 Case: Pilsher v. Rawlins
P was a trustee of money for the benefit of 'A'. P lent the money in exchange for a mortgage
on the property of R. He lent the money which was to be used in the benefit of the trust. R
repays the loan, and gets back his mortgaged property. A used the money so received now to
purchase another plot and mortgages this property to a third person 'S'. Again, on the basis of
how there was a bona fide purchaser, the property was given.
 Case: Wylkes v. Poonam
'A' was rented out two pieces of land, by two people L1 and L2. A being a butcher, converts
this into a slaughterhouse. A, upon retirement, sub-lets the land to C. A however, not only
sub-let his rights but also sold his goodwill in the land to C. C imposed conditions on the
selling of goodwill, he said that if the goodwill was to be sold, he stated that L1 was not to be
used as a slaughtered. Therefore, A's use of L1 was incumbered upon. At this point, A
relinquished his position as lessee in L1, and he gave L1 back to the landlord 'D'. D purchased
the land without the knowledge of the incumbrance imposed by C. 'E', who is D's son, was
given the land by D, and E was aware of the incumbrance on the property imposed by C.
Therefore, E was a subsequent purchaser. The question now arises: Can E slaughter animals?
The Court held that the subsequent purchaser E was protected by the fact that D did not have
the knowledge of the incumbrance on the property at the time of purchasing. Therefore, D's
status as a bona fide purchaser protected E from the incumbrance as imposed by C on that
property, and E would not be disallowed from carrying on the slaughterhouse business. The
only claim C has, is a claim of compensation against A. The policy reason for this reasoning, is
that the law is inclined to protect commercial transactions.
Something very similar happens with the status of the subsequent sale of a negotiable
instrument by a holder in due course with a defective title. The buyer of this title which was
 originally defective, gains a good title because his seller had a bona fide title, being a bona fide
purchaser.
 Case: Dearly v. Hall
In this case, 'A' bequeathed the estate under his will, to 'B'. Because of a prior transaction, B
had to give 'C' 30% of his estate, and for this payment, 60-70% of the estate was to be secured.
Therefore, in order to provide security for his payment, he kept 60-70% of the property as
security. B went off to sell this property to D. C did not give any notice to D, but before this,
D gave a notice to C.
Because D sent the notice first, D's interest was prioritized over the interest of C. It does not
focus on the element of negligence or mala fide intent, it merely relies on precariousness of the
purchaser and the one with the vested inserted. This rule at present, has been substituted by
the bona fide purchaser rule.
______________________________________________________________________________

ACTIONABLE CLAIM

 If a person has a claim, and he can enforce this claim in a court of law, it is an actionable
claim. Definition has been provided under Section 3 of the TOPA.
"A claim to any debt other than a debt secured by a mortgage to an immovable property" is an
actionable claim. This means that any debt claim is an actionable claim, except if it is secured
by a mortgage. The reason for this is that there are separate provisions for mortgage. Any kind
of debt which is conditional or contingent in nature is also covered by the definition of an
actionable claim. Negotiable instruments and decrees are exempted from the definition of
negotiable instruments, this is because negotiable instruments are dealt with under the NI Act
while the CPC deals with transfer of decrees.
 The question in this regard becomes: Can these claims be transferred?
 Initially, the common law courts were not inclined to accept a transfer of actionable claim.
Slowly, English common law gave recognition to the assignment of claims.
 The notice requirements for this are:
a. The giving of notice is a requirement of an actionable claim.
b. The giving of notice has to be documented.

SPECIFIC PERFORMANCE
 When one asks for specific relief, he does not wish to put a break in the contract.
Accordingly, in 2018, by amendment to S.10 of the Specific Relief Act, specific relief is a
matter of right. It is not based on the discretion of the court anymore, as protection of
said right is essential to maintain the sanctity of the economic bargain.
 Section 10 of the Specific Relief Act has been changed. The original wording of the Act
gave discretionary power to the court to provide for the relief of specific performance.
This discretion was subject to:
(1) Ascertainment of damages;
(2) Adequacy of damages;
The Court went on to create an assumption for this purpose. Accordingly, the un-
amended version of the Section said that if the subject-matter is immovable in nature, the
Court would take the assumption that the damages are inadequate in nature. Thereby, the
defendant has the burden to prove the adequacy of damages.
 Furthermore, if there is an alternative method that can be proposed as to getting the
contract performed, this method can be proposed. This is called substitute
performance.
 Determinable contracts are contracts which can be certainly terminated, and are covered
under Section 14 of the Specific Relief Act.
 However, with respect to movable property, the presumption is that the damages are
adequate in nature, putting the burden on the plaintiff. However, this presumption with
regard to movable property has two exceptions:
a. If the subject-matter does not happen to be an ordinary marketable product;
b. If the movable subject-matter is held as a trustee for the benefit of someone;
 Now, the rule that damages is the rule and specific performance is the exception, has been
done away with. Accordingly, the party can now demand specific performance or
damages, according to their performance characteristic. Now, this subject to aspect has
been done away with.
 Under Section 16, a condition is that the party should be willing to perform the contract.
In S.16(3), a specific averment requirement existed earlier. Now, this requirement has
been done away with on the point that this intention is clearly conveyed. While the earlier
section required the party to prove and aver, now the requirement of averment has been
taken away, and the Section enables the party to prove their willingness to perform
without having the procedural stringency of averment.
 This Amendment to the Act, is not clear as to whether it has a prospective or
retrospective. Even if it is prospective, it is not clear about whether it takes into account,
the date of entering into the contract or the date of breach of the contract.
 Conditions for specific performance:
a. There should be a contract, according to the Indian Contract Act, 1872;

RESCISSION, RECTIFICATION AND INJUNCTION

 The relief of rescission is covered under Section 27 of the Specific Relief Act.
 Rescission or rescinding basically means cancelling the contract. Section 27 is problematic,
as it does not take into account the privity of the contract, as any interested person can
rescind the contract. Section 27, to the extent of clause (a), is merely declaring and
reiterating the requirements of the privity of contract.

 Section 26 of the Specific Relief Act talks about rectification of instruments. Even decree
is covered under this Section. If there is patent wrong done by the decree, then it can also
be applied to decree.
 Section 26 is not confined to contracts, unlike Section 27, which is solely restricted to
contracts.
 This Section narrows down its scope to cases of fraud or mutual mistake of parties.
Section 26 furthermore, maintains an "in writing" requirement. This does not cover
companies, and cases where there are mistakes in the articles of association of the
company.
 In cases where errors are so patently manifest, the court can rectify the contract.
 The relief of rectification is available to both, plaintiff and defendant.
 If a bona fide purchaser has been created, then his right cannot be infringed upon by
rectification of the contract.
 Case:
A sold some land to B. A wrote the contract such that the godowns adjacent to the land
were also included in the land deed. However, B went on to sell the godowns to C
(w/consideration; w/knowledge), D (w/consideration; w/knowledge) and E
(w/consideration; w/o knowledge). Since E became a bona fide purchaser, his interest
continued to remain protected after rectification of the contract took place in order to
return the godowns to A.
 Section 26 basically puts a limit on the right to get a contract rectified. The other
important part of this Section, is that it states mutual mistake. It does not mention as to
whether this mistake, is a mistake of fact or mistake of law.

 Injunction as a relief can be found under Section 36 of the Specific Relief Act.
 There are two types of injunctions: Temporary and Permanent.
 Temporary injunction is given before a decision on the rights and duties of the parties i.e.,
the merits of the case, is given. A permanent injunction has been called a perpetual
injunction under the Act.
 QUESTION: What is the difference between a mandatory injunction and specific
performance?
Specific performance is broader than a mandatory injunction. The fundamental difference
arises out of how one protects status quo, while the other does not.
 There are both positive and negative injunctions.
 Section 38 provides for perpetual injunction. However, use of the word 'may' makes it
discretionary, and is context-specific.
 To prevent the breach of any obligation, it is given. The very nature of relief lies in the
fact that it is given when there is a breach. In case of specific performance, breach has
taken place and in order to get the obligation performed.
 Perpetual injunction prevents breach, in the sense that it protects status quo. The ambit of
'obligation' in this Section refers to a legal obligation, and is very wide in nature. If the
obligation can be impliedly drawn out, it can still be given.
 The problem is that Chapter II is headed 'Specific Performance'. There is no indication as
to the context in which substituted performance, and why it is different from specific
performance. There is a distinction, as Section 14 clearly provides that if one asks for
substituted performance, they cannot demand specific performance as a relief. Prima facie,
Section 20 states that as opposed to getting the contract performed by the defendant, if
there is any other method of getting the contract performed, that method can be used and
the costs for the same can be imposed on the party committing the initial breach as a
result of which, this alternate mode of performance has to be taken into consideration.
 The essence of Section 20 gives the impression that it is used to enforce the contract.
However, Section 14 provides a contrary stance by talking about contracts not specifically
enforceable, and mentions substitute performance as a condition in which contracts are
not specifically enforceable. The Amendment does not clearly define its stance on
substitute performance, and whether it provides for substitute performance as a right, or
simply as an alternative relief. This is because of the latent ambiguity that is present in the
reading of Section 38 along with the fact that Part II has been explicitly mentioned, and
because of the dichotomy that Section 20 and Section 14 presents in itself.
  Recommendatons for the amendment talked specifically about substitute performance. It
clearly said that wherever substitute performance is available, specific performance cannot
be demanded.

INTRODUCTION TO THE TRANSFER OF PROPERTY

ACT, 1882
PREAMBLE

 The Preamble for the Indian Contract Act, 1872 and the Transfer of Property Act, 1882 is
verbatim the same, mutatis mutandis,
 The Indian Evidence Act uses a similar but not identical Preamble, except in that it uses the
word "consolidated".
 Therefore, what can be culled out from this Preamble is that the Act does not intend to
consolidate. It does not seek to act as a single unifying legislation pertaining to transfer of
property.
 Transfer of Property as opposed to creating something new, seeks to put forward principles
pertaining to TPA.
 The third part strange is that the Preamble states that it will deal with aspects of transfer 'by
certain acts of party'. This intends to say that this Act does not talk about transfer of property
by law, in the sense of auction, escheats, acquisitions, etc. However, what this means is that the
Act only deals in voluntary acts of the parties which leads to transfer. While this is the general
rule as has been provided in the Preamble, there can be certain exceptions to this. However,
they are merely exceptions and unless provided explicitly in the Section, the Act assumes that
it only regulates voluntary transactions between parties.
 Therefore, the Preamble defines the scope, ambit and principles that the Act seeks to imbibe.
______________________________________________________________________________
REPEAL OF ACTS AND SAVING OF CERTAIN ENACTMENTS

 Section 2 talks about the Repeal of Acts, and the saving of certain enactments, etc.
Section 2 is a kind of saving clause and talks about the Act. Nothing in the Act affects any rule
of Muhammadan Law. While earlier, the saving was present for Hindu or Buddhist laws as
well, they were omitted in 1929 by Amendment. This was because the general scheme of
Hindu transfer of property and Buddhist transfer of property were changed, and in the context
of change, this Ac was accordingly amended.
The strange part of the Act is that it does not repeal all earlier Acts, it simply saves them.
Another strange part is as to why Muhammadan Law is only saved when it is inconsistent with
Chapter II of the Act. Chapter II extends from Section 5 to Section 53-A. This was a policy
decision, simply based on how the inconsistencies in both laws mostly pertained only to
Muhammadan Law.
______________________________________________________________________________

PROPERTY RIGHTS
 There are two things involved herein: the aspect of property and the aspect of rights.
 The three-term way of understanding rights would state that for explaining a statement, there
are three connotations to state the same.
 For example, if a claim of A has a right against B has to be explained, the three connotations
would be:
a. A has a claim against B; [What?]
b. B has a duty to respect A's claim; [How?]
c. What the claim actually is (Content of the claim)(The interest of the State in imprisoning
for instance, qualifies as the example of this. Similarly, a warrant for arrest containing a
reason for the claim qualifies that claim); [Why?]
 When we understand property rights, we look at two things:
a. Subject-matter;
b. The person who has an interest in the subject-matter;
This is the two-tier concept of rights in property;
 In order to understand this, it has to be understood as to what "property" is, and what "movable
property" and "immovable property" is.
 "Immovable property" under Section 3 does not include standing timber, growing crops or grass;
A better definition has been provided under Section 3(26) of the General Clauses Act, 1897,
which states ""immovable property" shall include land, benefits to arise out of land, and things attached to
the earth, or permanently fastened to anything attached to the earth".
However, this definition when read in the context of Transfer of property, would be qualified
by the words "In this Act, unless there is something repugnant in the subject or context" [S.3, TPA].
 This definition is inclusive of benefits that arise out of the land, for example, fisheries.
Case: Anand Behera v. State of Orissa (1955)(Supreme Court)[Fisheries come within the
ambit of "benefits to arise out of land"]
This case refers to a point wherein the State of Orissa was not owned by the State of Orissa.
However, later, the State acquired this land and now, the plaintiff, who was the previous
owner of the land before said acquisition, was faced with the dilemma: Can he still carry out a
fishing profession in the land? The more relevant question for this purpose however, was
whether the right to fish should be considered a separate right, to which the plaintiff continues
to have entitlement? Or, alternatively, once the land has been transferred to the State, are the
benefits out of the land such as fish, are transferred as well.
The Court decided in favour of the State, holding that the right to fish has to be included as
profite pendum [Benefit arising out of the land].

"Standing timber" is essentially determined by the nature of the use of the land, as well as by the
purpose of use of the land.
"Attachment to the earth" has been further defined under Section 3, in three clauses.

1. (a) Rooted in the earth; [Severed off part of property rooted in the earth, becomes movable
property][Basic principle herein is severability]
Question: Would a severed off part of property not become a 'benefit arising out of the
land'?
On the one hand, there is the severed off part, and on the other, there is an interest in the
place from where the severed off part has been severed. Now effectively, the right to sever has
been transferred, but the part that has been severed, cannot become a 'benefit out of the land'.
Section 51 talks about improvements made in the capacity of a bona fide purchaser, and states
that once the actual owner wants to evict the bona fide purchaser, the bona fide purchaser has
the right to the improvements made to the land, and not the actual owner.
Therefore, even if a principle is imbibed that what is part of the soil remains part of the soil,
 this principle is not absolute. This Section is an example of one such exception to this
principle.

2. (b) Imbedded in the earth;

The general understanding of 'embedment' is what is annexed to the land. The English courts
have explained the understanding of annexation, and this understanding has been accepted by
Indian courts. A test has been applied to understand annexation.
Case: Holland v. Hodgson
In this case, two tests were laid down to determine annexation:
a. Degree of annexation; [Whether temporarily or permanently annexed. This is a
presumption of intention]
b. Object of annexation; [You also have to decide what the purpose was, behind annexing
the property to the land]
It might be that the purpose might be different, but it is permanently annexed. In such a case,
this test is ambiguous as to whether object or degree of annexure should be prioritized. In
either case, one would ask the question as to why a two-tier understanding of this test has been
put forward.
Case: Wiltchner v. Cottren
If a property is attached to land by nothing but its own weight, then it is presumed that it is
not imbedded in the earth. E.g., a big pyramid of bricks is just kept on land. Then these bricks
cannot be said to be imbedded in the earth.

3. (c) Attached to what is so imbedded for the permanent beneficial enjoyment of that to
which it is attached;

 Attaching and imbedded has only been taken in the context of defining immovable property.
However, when taken in the context of sale, a sale of the imbedded property does not
necessitate the sale of what is attached to the property so imbedded.
 An example of this is under Section 8 of the Transfer of Property Act.
 SOCIOLOGY – II
THE INDIAN HINDU SOCIETY
FIND NOTES FOR JAN. 2, 2019

 An approach towards understanding ancient Indian society, inherently delves into a

discussion on understanding Hindu society.
 The basic characteristics of a Hindu society are:
a. There is a hierarchy in society. Social structure has a hierarchical nature;
b. Ascribed statuses are given increased importance. Social mobility is very low
in such a society, and is based on essentially a closed concept [Law also
recognizes this, as reservation cannot be acquired by marrying into an SC
family];
 There are three concepts in Hinduism:
a. Varna System: Sociological system. [Find notes]
Occupational mobility was present in this context, if the attributes of a
different occupation were present. Every personality constitutes Satva, Raj
[Activity] and Tam [Lethargic]. One of these attributes dominates, and
according to which attribute this is, one engages in occupation.
Swabhav: Your personality traits.
Swadharam: Your duties according to your personality traits. When the Varna
system shifted to the caste system, this became more rigid. There were
two theories as to this rigidity.
Occupational Theory: This is one of the most important theories. One
community which had one occupation, carried on the same for generations.
The system therefore, became very rigid.
Geographical Theory: The names were given to community according to
their geographical location. Accordingly, the Varna system became the more
rigid caste system.
 The Ashram System: Psychological system. [Find notes]
 The Purushad: This delves into what the ultimate aim of life is, and how to
attain it. What this aim is, has different schools of thought. How this aim is to
be attained, has different schools of thought. There are three approaches to
this.
a. Dnyaankand;
b. Karamkand;
c. Bhaktikand;
Indian approach concentrates more on a spiritual life, and looks at how
the future lives have to be enriched. Fulfilment of one's duty puts one in
a better position and gives a person better karma.
These duties are a function of one's social position and status, and one's
duty changes according to circumstance. Roles are prescribed according
to status.
  Karma: The actions that have been performed. The Gita tells us that the
actions have to be focused on, rather than the consequences of the actions so
done. This states that the action has to be looked at with equal importance, as
compared to the consequences. These kinds of actions result in karmic
accumulation. There is an ultimate reality, who passes righteous judgment and
gives his verdict based on one's actions. This is opposed to the materialistic
approach which suggests a focus on the present life.
 Charvak: It is a representation of materialism. It shows a focus on
the acquisition of wealth in the present life. There was a further
classification of these charvaks into two: Crude Charvas and
Refined Charvas.
_______ (Find name) has focused on materials that you have
acquired wealth, you need wealth for enjoyment and you have the
right to enjoy the same. This is Crude Charva philosophy.
 Dharma:
The Rena: There are three kinds of rena (payback):
a. Pitrarena: This is the debt that has to be paid back to family, by
procreation. The ethos was that once a son was born, this rena was paid.
b. Devarena: The realization has to be that we are a part of ultimate reality.
God is a personified form of this ultimate reality, which is an abstract
concept. This is an interpretation given in the Vedic philosophy.
iii. Rishirena: When knowledge is attained from society, this knowledge has
to be offered back by performing a service in society. The knowledge
attained in the Bhramacharyashram has to be paid back to the society, by
giving back to society in the form of teachings.

HINDUISM: A RELIGION OR A WAY OF LIFE?

 A very popular theory is that Hindus are those who lived near the river Sindh.
 Vedic dharam, Sanathan dharam are some other names for the Hindu religion.
 Hinduism has no single origin, no single religious text, thereby leading to the
conclusion that Hinduism is not just a religion, but a way of life.

BASIC CHARACTERISTICS OF HINDUISM AS A RELIGION

 Hinduism: is it an ancient religion?

HINDUISM AS A WAY OF LIFE

 Hinduism is considered a way of life because of two important points of distinction, as

compared to other religions:
a. The lack of a singular founder [Hinduism delves into different sects, and there is
no singular source of origin];
b. The lack of a single scripture [Unlike Christianity, Islam, Buddhism, Jainism, there
is no single scripture text];
 In Shastri Yagnapurishadji (1966)(Supreme Court decision):
In this decision, it was discussed as to whether Hindu, Hinduism and Hindutva is a
religion or not. The context was that Hinduism was to be used in the context of
election. This described Hinduism as a way of life because:
a. They do not have one single authority;
b. They do not support any dogma;
c. They do not believe in one philosophical concept or teaching;
d. There are multiple sets of rituals that can be followed in Hinduism [This is
because small cults of Hindus were united when the Muslims invaded India, and
when the Buddhists sought the creation of a new religion of Buddhism. The
Buddhists and Muslims had a formalization which was absent in the Hindu
religion, and the unification of these cults shaped Hinduism as its distinct identity]
e. There are three important divisions in Hinduism: Vishnaism, Shivism, Shakti-ism
who are each distinct in the Gods they worship and the manner in which this
worship is done;

Further points in favour of Hinduism, which are independent of comparison to other

religions:
a. The Concept of 'Ishta-Devta': Hinduism is divided in such a way that each
Gothra and community have their own God whom they choose to worship. It
allows for the freedom to worship, and every family chooses to worship their own
God.
b. The Concept of Nature Worship: Nature worship is a distinctive feature of
Hinduism, which chooses to worship all the gifts of nature.
c. The Concept of Concrete and Abstract God: This comes from the Vedic
philosophy. This means that there is one single reality in the universe, and there is
no applicable attribute for the same. Human nature cannot understand the
attributes of this ultimate reality. We in turn, attempt to define this reality in the
form of our manifestations of God. In order to understand abstract realities, they
are given concrete forms in the form of manifestations of God. Concepts of
sahgun and nirgun. The concept is explained using the example of the moon, and its
reflection. The moon in itself is the abstract God, and its manifestation in the
form of reflections, is the concrete God.
d. The Karma, Dharma Philosophy: This is unique to Hinduism. These are basic
schools of thought talking about the ultimate aim of life.
e. Aastik: Those who have faith in the beliefs of the Vedas. There are six schools of
thought under Aastik school.
Naastik: Those who do not have faith in the teaching of the Vedas. Charvaks,
Jains and Buddhists are described as naastik. They do not have faith in God as a
creator, destroyer. They believe in the shagun form of God.
 Concept of Purity and Polluted: One of the major distinctive elements of
Hinduism is the caste system. Hierarchy was presented in every system, however
the concept of caste as an ascribed system of purity which imposes its own
restrictions, is unique to Hinduism.
  Hindu ethics: The Varna, Ashram, Karma, Purushad and Rina system are Hindu
ethics. These are Hindu ethics, and they prescribe methods on how one's life is to
be led. Understanding of the different aspects of life are prescribed by these
ethics.

 These points are used to justify the claim that Hinduism is a way of life.

 While the Representation of Peoples Act, S. 123(3) did not allow for religion to be
used as propaganda in elections, here Hinduism was described as a way of life and they
were allowed to use this.
 In 1995, the discussion as to Hinduism as a way of life came up before the Supreme
Court again, in the same context of the RP Act, 1951.
 Commissioner, Wealth Tax, Madras v. Late R. Shridharan (1976):
Hinduism has so many diverse forms and practices. It is difficult to classify it as a
religion.
 Ramesh Yeshwant case (1996):
Justice J.S. Verma further reiterated how Hinduism is a way of life rather than merely a
religion.

CONTINUITY AND CHANGE IN INDIAN

THEOLOGICAL PERSPECTIVES
 FIND NOTES FOR 08/01/2018!

CONTACT WITH AND IMPACT OF ISLAM

 History tells us that a lot of social evils prevalent in Indian society at present, were a
result of contact with Islam.
 Around the 10th Century AD, contact with Islam had begun. However, in the 15th
Century, the invasion of the Mughals started the Islamic contact on a theological
standpoint.
 Majority of the contact can however, be attributed specifically to the Akbar period.
This is because the Muslims before Akbar lived in segregated communities. Akbar
started a culture of assimilation and accommodation. However, with respect to
Muslims, it was difficult to reconcile the two cultures.
 Islam believes in Monotheism, while Hindus believe in Polytheism; Islam presents a
more materialistic outlook, while Hindus believe in a more spiritual life; That is why,
even today, an inherent distinction and difference can be seen between Hindus and
Muslims.

Positive Impacts of Contact with Islam

 Art and architecture - Domes and Minarets;

 Cuisine [Kebabs <3, Biryani :*];
  Development of Urban Cities; They wanted to live as one community in one place, and
thought urban areas were safer for them. Therefore, their culture focused on urban life
[e.g., Aurangabad, Hyderabad, Allahabad, Secunderabad];
 Music and musical instruments [Akbar, Jehangir][The sitar, tabla and sarangi];
 Gardens [Shalimar Bagh, Mughal Gardens, Lodi Gardens];
 Translation of Sanskrit and Arabic works into Hindi or Urdu;
 Development of Urdu and other vernacular languages;
 Values such as honesty, absolutist faith in religion, and faith and unity of community.
Some scholars believe that Islam brought a very unique value system in India, while a
contrary belief holds them responsible for having sown the dark seeds of
communalism;
 Emergence of the Bhakti cult [This is the cult who believed in monotheism, and a nirgun
form of God. Kabir, Namdeo were some of the more proficient propounders of this
cult.]; This led to a movement for the reformation of values within the Hindu system.
 Administration systems [Especially during the Akbar regime][Harmony between
different religions][Court procedure][Administrative policies were refined and given
proper shape, and tax reforms took place in the period, military organization and
consolidation (e.g., Rajput culture)];
 Opening of the sea route to the Middle-East, after it had been shut down by the Chola
dynasty;
 Dressing and lifestyle [Anarkalis, lavish lifestyle, appreciation for art];

Negative Impacts of Contact with Islam

 A dominant school of thought believes that when the Muslim invaders came to Inia, as
opposed to other cultures, is that Muslims did not easily assimilate into the Indian
culture.
 The complete cultural difference, led to communalism, whose seeds were sown in this
period. Some historians believe that majority of social evils prevalent in India at
present, began in the Muslim period. Polygamy and ill-treatment of women, a practice
prevalent in Muslim society, impacted the Indian culture in how practices in Hindu
society became rigid. There were child marriages, sati, and other practices which were
undertaken in order to "save their women". The notion of women as property
belonging to men, resulted in these practices as the notion became that these women
needed to be saved from Muslims and their "cruelty".
 Sati and jauhar increased and became more widespread. The reasoning for this is that
the system among the Hindus in India, the women had to be saved from the Muslim
men. Jauhar was to save the women from the will of the enemy, after their husband had
died in war. It was promoted as an act of courage, of purity, for the sake of the
community, as the dignity of the woman was associated with the dignity of the
community. Therefore, individual identity merged into community identity and the
norms prescribed by the community had to be forcibly accepted.
 Slavery as a practice developed in India as a result of the contact with the Muslims.
 The rigidity of the caste system increased. This was done to preserve the values of the
Hindu community, who over time, panicked about the existence of the culture and the
values that they had managed to preserve over thousands of years.
 Materialism in Hindu society increased. Whether or not materialism is negative is
debatable, but the argument is that the spiritual society was better. Therefore,
materialism was viewed as having disrupted the basic ethos of Indian civilization.
Matter was considered the ultimate reality, and satisfaction to oneself was considered
the prime value and driving force of life. Spiritualism, is the contrast, to materialism.

WESTERNIZATION OF INDIAN CULTURE

 Westernization is the integration and adoption of Western culture in the context of
Indian culture. There is a very broad domain to this Westernization, and it affects our
clothes, ideologies and the like.
 According to M.N. Srinivasan, westernization means the 150 years of the contact of the
British and its impact on the Indians. Therefore, when understanding how Western
countries influence non-Western countries. The term is coned in context of the social
change taking place in India.
 "Changes that a non-Western society undergoes as a result of contact with Western societies" [M.N.
Srinivasan, 1962].
 The British made a huge impact, because of their involvement in the Indian
administrative process. Therefore, their influence impacted social changes.
"Westernization refers to the changes brought in Indian society and culture as a result of over 150
years of British rule, and these changes, occurring at different levels: technology, institution, ideology and
values" [M.N. Srinivasan].
 The primary reference is to these 150 years of British contact, however Westernization
could be in reference to any Western country and their influence.
 The court system, the principle of rule of law, education system, legal system, economic
system, are examples of changes brought about by the British. Railways, postal services,
industrialization and machinery, weaponry are examples of technological institutions.
 Institutions like education were impacted as English was used as a medium, change in
the style of teaching, the teaching philosophy. The concept of formal classroom
replaced the Gurukul system. Similarly, the legal system was introduced to their
common law and court system. Simultaneously, capitalism was introduced. Reciprocal
relationships between Jajmaan and Kaamin, which was a caste-based system of service,
where the Jajmaan were higher castes and Kaamin were lower castes. The upper castes
exploited the lower castes. While it was widespread in India, capitalism eventually led to
the decline of this Jajmaani system. Another reason for the decline is the lower
importance of the Caste Panchayats, who were replaced by formal courts. Even the
bank, accounting system and share market began during the British period.
 The joint family system, which was one of the core values of the Indian system, and
which was based on economy and agricultural requirements, was rooted out. Caste
rigidity decreased, new ways of occupation came about, and slowly and gradually,
people from joint families migrated to cities. This shook the joint family system in
 India. The family system unique to India changed due to the different schemes
introduced by the British. Now, different security measures were provided by the
British which incentivized them to search for more freedom, apart from those provided
by their family. The value system therefore, was on the decline and individualism and
the idea of freedom, were introduced.
 The two pillars of the Indian system, the caste system and the family system, were
changed drastically. They reduced caste rigidity, made untouchability an offence, in
order to improve the older systems. Values like rationality, secularism were some other
values introduced by the British.
 A complete process of change in thinking on the basis of a change in values is a change
in ideology. Political values were restructured and re-thought, and the British brought
the values of freedom, equality, justice and conscience, which internally impacted the
system intrinsically. Liberalism as an ideology, developed during the British period.
Democracy for instance, is an ideology and a value. Liberalism was also introduced in
the British period.

OTHER IMPACTS

1. Lifestyle Changes: Club culture, for instance, started with the British. The new
English music, the clothing forms like jeans or shirts, coats. Starting from dressing
habits, to food habits (use of spoons, forks etc.) are also impacted by the British. Social
change happened at three points:
Lower castes now imitated the upper castes. Majority of the upper caste however, also
belonged to the upper class. This lower caste behaviour was done in order to achieve
social approval. Upper caste, and upper middle class, were influenced by the British and
Western culture. Therefore, the Westerners impacted the social structure. The
professional upper middle-class were deeply impacted, and this included the
government officials. Due to the influence of Westernization, food and alcohol,
birthday and New Year Celebrations, Christmas celebrations were introduced in the
British period.
2. Society changes: Categorization of society took place in the British society, and the
middle-class and lower class division widened. The class of professionals developed.
The middle professional group rose during the British period. Changes in caste took
place, at the value and ideology level. While there was no structural change in caste
structure itself, the standard of living of this middle professional class rose. The
professionals were trained in English, to prepare a force to work for them and to obey
their laws.
3. Change in the status of women: Social legislations, which had attacked women
directly, were done away with. The decline that took place in the status of women were
reversed by progressive legislations prohibiting child marriage, changing the Hindu
Marriage Act, Special Marriage Act. This laid the groundwork for the change in status
of women. Education of women, changed a lot in the status of women. Reformers like
Savitribai Phule started schools for women. The reality is however, that a majority of
women are still denied equal status as compared to men.
 4. A Socialist Model was replaced by Capitalism: The feudal structure long prevalent
in Indian society was replaced by a capitalist model. Similarly, a theocratically divided
model was replaced by secularism.
5. Inspiration to social reformers: Inspirations to the Freedom Movement and social
reformists, according to some, inspired India to wake up and realize values like
freedom and liberty. A consolidated shape was given to our freedom struggle
movement. The British initiated and kick-started the freedom movement according to
these thinkers. According to them, once the British felt that social reforms could not be
introduced without changing social structures and practices, they laid the groundwork
and introduced social legislations.

NEGATIVE IMPACTS

1. The 'Divide and Rule' Policy (Marginalization): The Divide and Rule policy
marginalized and divided the unity of the Indians. They particularly marginalized the
Muslims, and in general, they inspired hatred towards Muslims (Islamophobia). They tried
to exclude certain people from society. The Indian society was changed negatively, and
certain tribal populations were criminalized. Several forest policies which were brought
in by the British were still continued. At present, there has been assimilation of these
tribes and people in the Hindu system. However, the negative aspect of this is that they
ended up adopting the caste system.
2. Joint Family System: The joint family system, one of the main pillars of the Indian
society, has now diminished. While scholars argue as to the positive/negative aspect of
this change, stating that perhaps it has been replaced by a more functionalization.

SOCIAL MOBILITY AND SOCIAL CHANGE IN

INDIA
 Whenever there is any change in the social status, it is social mobility. Basically, it
means that if options are open in the sense that there is hope or chance for a social
position to change, it is socially mobile.
 Social status and social position are different. When there is a change like, a
businessman who moves up in class because of his effort, there is vertical social
mobility in terms of class. Horizontal social mobility talks about a change in the social
status only in the same sphere. E.g., a teacher who remains a teacher but who moves
from NLUJ to NLS.
 Social mobility can be inter-generational and intra-generational as well. When changes
happen in different generations versus when changes happen in the same generation.

1. Sanskritization: It indicates the social change that happens between the lower caste
and upper caste. The lower class imitating the lifestyle of the upper class, this is
Sanskritization.
2. Westernization: Upper caste, which is also the upper class, imitated the lifestyle of the
British. This is westernization.
 3. Modernization: Modernization talks about the social change process, as defined by
Daniel Lerner, "Modernization means that a less developed society acquires characteristics of more
modern society".
________________________________________________________________________
_______________________________
SANSKRITIZATION

 This does not talk about any process of structural change, as caste was ascribed. This
was mainly a process of imitation, between the lower and upper caste. A majority of
sociologists conducted field investigations, among whom M.N. Srinivasa, who
conducted a field study in Karnataka and concluded that lower caste people imitated
the lifestyle of Brahmins. He later amended this to state that the lower caste people
imitate the lifestyle of anyone of the upper caste.
 He therefore said that they imitated the lifestyle. He called this 'twice-born'. Twice-born,
or Dvija, meant that they were born twice, spiritually. There was rebirth once a person
had read the Vedas, and once the Upanayana Sanskaar was complete. There are sixteen
Shingar. A person is born once when he is physically born, the second birth is
considered entirely spiritual. M.N. Srinivasa states that the lower castes imitate any
caste which had this Dvija philosophy. All three castes of Vaishya, Kshatriya and Brahmin
were Dvija castes.
M.N. Srinivasa said, in his book 'Religion and Society Among the Groups' that the
lower castes imitates the lifestyle of the Brahmins. Around the 1970s he amended this
in his book 'Social Change in Modern India':
"Sanskritization is the process by which the lower caste or a tribe or other group changes its customs,
rituals, ideologies or way of life in the direction of a high-end, twice born caste".
 In this sense, he extended the 1952 definition. He initially said that they solely imitated
rituals, but then he continued on to state that they also imitated the ideology. Ideology
imitation meant adoption of the Varna system, and way of life changes dressing style,
eating practices, etc.
 This definition however, presupposed certain conditions:
a. The superior status of the group who is being imitated, is established;
b. Willingness of the imitation on part of the lower caste;
c. Close socio-cultural contact between both groups. In this context, he stated that it
is a two-way process;
d. The lower group considers the upper caste as a reference group;
________________________________________________________________________
_______________________________
THE DIMENSIONS OF SANSKRITIZATION

 It means that the caste rigidity had been reduced such that the lower caste had been
enabled to come in contact with the upper castes. He tried to concentrate more on the
ritual habits, dressing habits, eating habits.
E.g., Kanyadaan was an upper caste ritual, this was imitated by the lower castes. Also, as
an imitation process, Purohits were consulted before marriage. Another example is how
 upper castes gave a lower status to women, while lower castes used to give higher
status to women. Lower castes, in this process of imitation, started treating women
with a lower status.
 The three main points of imitation by the lower castes were:
a. Rituals;
b. Marriage;
c. Status of women;
 Another impact of the Sanskritization process was the naming of children. When the
upper castes used to give the children names of Gods, the lower castes in the process
of imitation, gave such names to their children.
 Food habits were further impacted by this process of Sanskritization. The guidelines in
upper caste culture were imitated by the lower castes. E.g., alcohol prohibition.
 Dressing habits like dhotis were also imitated by the lower castes.

 The sole process of this imitation was to make society believe that they were higher in
group. The caste structure however, underwent no structural status. A person's ranking
in the eyes of society was sought to be increased, since the actual ranking could not be
changed because it was ascribed.
 One common example that upper castes have apparently adopted from lower castes, is
animal sacrifice. This states that lower castes who practiced animal sacrifice, adopted
a practice that was eventually adopted by the upper caste.
 While it has been described as a two-way process, it was a process of upward mobility.
Whenever there is social contact, which is a precondition of Srinivasa's description of
Sanskritization, it is but natural that certain minor practices would also transfer from
the lower caste to upper caste. This therefore, is a positional change and not a
structural change. While a process of upward mobility, a person's status does not
change. A person's value in the eyes of society, as a consequence of this upward
mobility, increases.
 Sanskritization was not confined to Hindus, and tribes like the Bhil, Gond and Oreols
adopted these practices as well. Tribes who followed their own religions which were
perhaps based on toteism.
 M.N. Srinivasa believes that this is a universal process. However, this part has been
criticized as being factually inaccurate, as they believe there is an influence of other
cultures.
________________________________________________________________________
_______________________________
CRITICAL VIEW

 A critical view of the Sanskritization theory is the Dominant Class concept, also given by
M.N. Srinivasa. It states that lower castes imitate upper classes, based not on caste, but
on certain dominant castes. The criteria he defined for dominant castes are:
1. Numerical strength;
2. Economic strength;
3. Education;
 4. Political strength;
In the current context, even lower castes are imitating Western classes. In the modern
context, the Brahmins are not dominating. The merging of caste into class has taken place,
and accordingly caste importance has reduced. Vote bank politics and caste however, still
find an inextricable link in India.
 Another criticism is as to whether it is a concept or whether it a process. A concept
merely defines existing facts and provides a reason for the same. The criticism calls it a
process and not a concept. It was said by Srinivasa that Sanskritization is a concept.
1. J.F. Stall: He believed that even if it was a concept, it was a complicated and jumbled-
up concept. He suggested that it is better to state that it is a widespread social process
and not a social concept. Therefore, while it was not a single concept in itself,
Sanskritization was merely a process bundled up of several concepts.
2. Yogendra Singh: He says that it fails to understand many facets of India as it fails to
understand many other aspects of social change in India, attributing it entirely to India.
He believed that it focused on Sanskritic tradition, restricting its ambit to the same, and
non-Sanskritic exclusion was not acceptable to him. In this reference, he puts forward
an argument that this is not universal. He took an example of Punjab, stating that the
Punjabis were more influenced by the Islamic traditions, especially the Persian
traditions.
He furthermore stated that reservation policies are such that political and economic
forces are in favour of Sanskritization. However, if the reservation policy is looked at, it
is not in consonance with Sanskritization. Therefore, when the reservation is given to
such people, they want to maintain their identity as a member of that group, rather than
find an artificial upgrade to the upper caste by a process of imitation which does not
guarantee any structural change. The policy of reservation therefore, widens the caste
gap because the lower caste people have found a caste identity and are not willing to
give up the same.
3. Marriot: He says, "We cannot establish that the process of Sanskritization always takes place by
replacing or removing the non-Sanskritic rituals. They can often add on rather than replace it". It is
therefore possible that mere addition to the initial process takes place, therefore, this
process of imitation that states that the old practice is 'replaced' by the new one.
Therefore, this process of imitation is not entirely a process of upturning.
4. D.J. Majumdar: He conducted a field study in the village of Mohana. It was observed
herein, that the lower caste did not want to imitate the habits of the upper class. This
challenged the universality of the theory.
5. Gould: The imitation is a show of aggression, and is a reactionary show against the
upper caste. When a person imitates the lifestyle, he believes that it is not necessarily
because they want to become like the upper caste. It was more of a process of
infiltration, where they wanted to show revolt against the historical oppression. They
wanted to interfere in this process, and this exploitation was expressed in the form of
challenge to the established order.
 HISTORY – III
WHAT IS HISTORY?
 Book: 'What is History?' by E.H. Carr.
 Traditionally, 'history' has been understood as being synonymous to 'past'.
 History comes in through a filtration of the past, and history has been defined as 'an
unending dialogue between past and present'. This is because history is a selective study
of the past.

PROCESS OF CONSTRUCTION OF HISTORY

 'Past' is infinite. The observer has observed a limited portion of this past, and a selected
part of this observed past is ingrained in one's memory. Only part of this is
remmebered and recorded, and even then, it is filtered into history that has temporal
value, and history which survives the test of time. Out of this, the part that comes to
the historians' notice is grasped. Whatever is understood is then checked/verified for
credibility, and then expounded and narrated.

PAST
|
OBSERVED
|
REMEMBERED
|
RECORDED
|
SURVIVE THE TEST OF TIME
|
PART THAT COMES TO THE HISTORIANS' ATTENTION
|
GRASPED PORTION
|
CREDIBILITY
|
EXPOUNDED AND NARRATED
________________________________________________________________________
_____________________________________

WHAT IS FACT?

 'Fact is the datum of experience' -

  There are two types of fact: Hard and soft facts. Hard facts are verifiable, and
undisputed. Soft facts are the facts subject to interpretation, and have an element of
understanding.

FACT AND HISTORICAL FACT: DISTINCTION

 To give an example, when the facts about Cleopatra are to be noted, whether Cleopatra
has a sharp or round nose is irrelevant as a historical fact. Historical facts are historical
due to their relevance and importance.
 The phrase 'Crossing the Rubicon' can be used to understand what distinguishes
historical fact from other facts. Example, while there were princesses even in the past,
Princess Meghan Markle was the first half-black Princess, and this is a historical fact as
it crosses the Rubicon because of its uniqueness.

POSITIVISM AND EMPIRICISM

 Positivism: Positivism talks about an emphasis on science. What positivists believe, is

that fact is sacred. Facts are, by themselves, inherently explanatory. They believe that
history is a science, and historical facts are as pure and as true as scientific facts.
"Fact is sacred but opinion is free" - C.P. Scott
 Empiricism: Fact by themselves, is not history. Historians dig out facts, and their
interpretation becomes history. This school focuses on interpretation as the basic tenet
of history.

________________________________________________________________________
____________________________
"All history is contemporary history" - E.H. Carr
 What Carr means here, is that the past has to be looked at, in the eyes of the present.
The interpretation of the past is therefore, made by understanding the tendencies that
the present provides. An understanding of the society in which one exists, allows for a
better understanding of the society that existed earlier, and the changes in this society
as opposed to the earlier one.
 Technological tools further aid in the understanding of the past.

"All history is the history of thought" - E.H. Carr

 This means that ideology is shaped by historical events, and the understanding of
historical events is necessarily an understanding of the inherent ideology and thought
that inspired such events. The legacies of the events in history can be seen in due
course of time.

TYPES OF HISTORY
1. Social History: This is linked to sociology, and talks about the societal structure and
functions, and their evolution over time.
2. Political History: The history of kings, evolution of understanding of State, and
political developments on ruling.
3. Economic History: History of the understanding of economics, growth of the subject
and trade history, history of how trade interactions shaped historical facts.
4. Intellectual History: Intellectual history emerged in the 1960s and 70s. This is the
history of ideas.
5. Environmental History: This emerged in the 60s and 70s, and talks about the history
of the environmental structure, and changes over time.
6. Military History: Winston Churchill's 'History of the Second World War' is good for
both military and diplomatic history. This talks about the evolution of military regimes
and strategies.
7. Diplomatic History: This talks about the history of diplomacy.

 Voltaire inspired a term 'Philosophy of History'. He spoke about how history was to
be written, what history was and why it was necessary.
The Renaissance model, which Voltaire emphasized upon of historical writing
emphasized how history was to be scientific, objectively interpreted. This is known as
'historiography'.

INTER-DISCIPLINARY APPROACH TO HISTORY

1. Geography: History has a very close interaction with geography. Cartography and
maps have an important role to play in the understanding of territorial extent and
borders. There are two branches of history in this respect, military and diplomatic
history. For these types of history, a proper understanding of geography is
necessary.
Eg. For writing the history of the Kargil War, the topography of the region, the
people residing there, the weather and meteorological conditions have to be
looked into in order to get a complete understanding of diplomatic history. A field
study may further be necessitated for this purpose.
Geographical dominance: England played an important role for three centuries,
and enjoyed a dominant position in world politics. This historical dominance was
caused because of their geographical separation from mainland Europe, and the
English Channel as a geographic feature became an indispensable part which
helped them assert their continued dominance. Similarly, America and its
geographical isolation resulted in no military attack to the American mainland
before 9/11.
However, because of technological developments, the use of geographical
advantages has diminished with the use of ICBMs, etc. Still, geography has an
important role to play in the development of history.
National Character Formation: Geography has often caused the divide and
national character formation, resulting in protectionist tendencies because one
feels a sense of togetherness with these people. This inspires a nationalist ideology,
 because of a feeling of oneness. Geography acts as a basic feature for the creation
of 'State' and 'nation' in concept for this purpose. Eg. Separatist tendencies in the
U.S., separatist tendencies in the North-East or in Pakistan, the Naga separatist
movement.
History of the Distant Past: For eras for which there is no written record or
documented evidence, history is oft written by looking at the landscapes, artefacts
through archaeological excavation and geographical features play an important
role in the understanding in the same.
Climate and its impact: Tropical climatic conditions, which cause little to no
variations in weather conditions in the year, aid the existence of civilizations.
Population growth is higher in the tropical regions, and climate definitely in that
sense, has an impact on civilization growth over time.
Geopolitics: Geopolitics means the interaction of geography with politics. The
development of national foreign policies is inextricably linked with both history
and geography eg. Israel-Palestine divide, North Korea-South Korea divide.
Resources: The discovery of Australia as a 'gold-mine', is an important example
of the geographical and historical example of resources.

2. Economics:
Economic history: Economics essentially studies humans' economic activity,
while history is an overall understanding of human activity over a period of time.
This creates an obvious link between the two disciplines. Some of the great
economic events have shaped history and are an important part even in the study
of economics eg. The Great Depression, Liberalization, Capitalism. Econometrics
also further allows for a data analysis of historic problems.
Colonial Legacy: Colonialism in essence was influenced by economics, because
even the British initially started out as traders in the economy. The problem of
lop-sided development in certain parts of India, is also a consequence of the
British, and is an economic development influenced by history. Furthermore, tax
policies given by the British are historically given, some have been abandoned in
due course while the rest have survived the test of time. Naxalism, imposed by
Lord Cornwallis, had a further economic and historical impact.
3. Psychology: Psychology again has an interaction with history, in terms of how
psychology is about motives and reasons behind human actions. Psychology is
useful in understanding those heroes in history, who impacted the world in their
own way. However, looking at the psyche of those in history, can help us
understand the ideology and historical development with the help of psychology.
Certain ideologies like jingoism or mass hysteria could be understood better
through psychological studies, and in this sense, history has an undeniable link
with the study of psychology. Understanding a mob effect or a superiority
complex in a historical context, can be aided by a study of psychology with
history. How behaviour shapes a revolution, or creates movements, can be better
understood by a psychological study of history. The change in psychological
 perspective over time can be better understood over time with a connected study
between history and psychology.
Writing Biographies and Autobiographies: Knowledge of a person in-depth
has to be acquired so that a better insight into a person's work can be obtained.
Information in this way, has to be collected in order to understand the psychology
of the person. Freudian and post-Freudian psychology is helpful in understanding
the person about whom the biography is to be written.
4. Sociology: The relationship of history with sociology is long-standing, in how
sociology found it's origin in history. This is because sociology studies the
development of society and social institutions, and a historical perspective allows
for the chronological evolutionary understanding of this particular subject. This
interaction is therefore, patently evident in the application of the theories in
sociology. The development of sociological methods is also influenced by trial
and error in history. Sociology by itself, cannot exist without social history.
5. Political Science: A British scholar, John Seeley, said that history without
political science has no fruit, while political science without history has no root.
This is the intricate connection between history and political science. During the
Renaissance, political science emerged out of history when the new discussions
about the idea of State emerged in political rhetoric. Political science as a
discipline, emerged from political history. Political history, which is a narration of
the history of political institutions and ideologies. Political science emerged
because if a need to understand political institutions in detail, and the need for the
formulation of theories. Political science is the analytical and theoretical
understanding of political history. International relations emerged as an
independent study in the 20th Century, as a result of history.
6. Law: Legal history itself shows the development of legal institutions as a result of
history. The Constitution of India for instance, also came out as a result of the
development of legal institutions. The development of court system, can also be
understood with a joint study for history and law. The background and evolution
of law can also be understood in a historical context.
7. Philosophy: Philosophy of history itself provides a methodology for historians to
craft, write history. This craft is known as historigraphy. The Renaissance model
also pl

HISTORY AS PROGRESS
 There are many different dimensions and understandings of what progress is. The
understanding of history is undeniably and closely linked to the idea of progress.
 The basic question that has to be asked in this respect is: What are the criteria to
determine the "progressiveness" of a person or policy?

ELEMENTS OF PROGRESSIVENESS
  There has to be a goal, which is intended to lead society towards development of some
kind [social, economic, political, etc.]. Acceptability is another criteria of determining
progress. Economics adds another idea and dimension to progressiveness [GDP
growth]. Development of science and technology adds a fourth dimension.
Development has to be sustainable over a considerably long period of time.

a. Accumulation of material resources;

b. Scientific advancement;
c. Mastery over the environment;
d. The Level of Consciousness;

 History is progress with trough and peak. History is progress with the accumulated
experience of the past. Fire and wheel

OBJECTIVITY, SUBJECTIVITY AND BIAS IN

HISTORY
 There is a relation between objectivity, subjectivity and bias. While the terms have been
used otherwise.
 Objectivity indicates absolute truth as to a particular statement or fact.
 "Objectivity is the capacity to rise above the limited vision of one's own situation in society and in
history, and a capacity to project one's vision in the future".
This definition can be related to certain examples, such as Galileo, when he said that
the earth revolved around the sun. For this, he was charged for apostacy and eventually
punished to death [Cue: capacity to rise above the limited vision of one's own situation].
 "Objectivity means how subjective history is to be viewed and presented"
-E.H. Carr
 Subjectivity is an interpretation of the different instances that happen in history.
 Bias is deliberate, and intrinsic. When bias is present, one looks at things in a restrictive
manner, only in terms of what he can prove. Bias can be equated with pattern writing,
and something which is coloured with opinion and ideology over fact. Eg. Arun
Sawhney, who authored "Missionary in India", on the basis of the RSS ideology,
thereby disregarding the positive aspect of missionaries in favour of advocating solely
the negatives that they presented. I response to this book, a missionary wrote a point
by point rebuttal of Arun Sawhney's book.

Why is there subjectivity in history?

 An objective history is impossible, as it merely delves into facts. Interpretation of

historical facts is necessary, as a historian brings into history an analysis which is
inherent to the understanding of the facts. However, the possibility of bias necessitates
a focus on objectivity in history.
 History is how we evaluate events, personalities, cultures and ideas. Subjectivity in
interpretation for these particular aspects is natural, as historians tend to view these
 from different perspectives or lenses. These lenses could be Cultural, Political, Marxist,
Rightist, Feminist.

1. Personality: A historian is not firstly a historian. He is a member of society. And over

time, he has passed through a process of socialization, and his personality has been
moulded by the socialization and community that he has lived in through his life. As
one lives with his parents, his personality is shaped by his interactions and conflicts.
Naturally, this personality would reflect in that person's writing [For instance, the
notion that liberalism is the ideology for the millennial population].
2. Ideology: Ideology, like personality, is intrinsic to a person. Generally, intellectuals for
instance, portray a Leftist lineation. They are accordingly influenced by a Marxist
approach.
Marxist approach to history: Marxist approach mainly tends to enter economics and
trade. He believes that economics is the base for wars and conflicts in the world.
Economic undertones can be seen in every sphere of interaction and conflict. Problem
is that if a rational approach is taken, economics cannot be taken as the sole factor.
Religion, social statuses, culture, ethnicity are some other driving factors which
influence humans to move or be involved in economic activity. Marx believed religion
to be opium, and therefore disregarded the importance of religion as an important
driving factor for human beings. Marxism, because of this, has come into conflict with
the Political Right. Marxism again talks about history from the Renaissance model,
focusing on a historical and scientific inquiry. Living historians at present also have a
Marxist approach to history, requiring hard evidence for justification.
3. Religion: The historian's religion, for instance, J.N. Sarkar and Faruqqi, you would
find that Sarkar is very critical of Aurangzeb and his policies. But Faruqqi tends to
defend Aurangzeb. He did not deny that Aurangzeb was destructive, he simply said
that he had his reasons for the same. He justified Aurangzeb's destruction of temples,
by stating that the Mughal empire was at its largest during the period of Aurangzeb.
Throughout his period, Aurangzeb was involved in wars. For financing the wars, he
needed money, and the Southern temples which were great repositories of wealth, were
destroyed in order to acquire said wealth. According to him, religious fanaticism was
not the reason for the destruction of temples, the reason for a 'show of glory'. Even
Hindus destroyed other temples when they attacked each other. Both arguments are
credible and well-reasoned, but their religion has influenced his subjectivity. Although
religion is not that widespread a factor.
4. Inference: Inference is intuition, or intelligent guessing. 'Where there is smoke, there is
a fire'. Archive positivism, is a phenomena where the historian attempts to fill gaps in
history. E.g., if the history of the Mauryan period is to be written, and a certain 20-30
years' evidence is not found, then those 20-30 years' history is filled out by inference.
5. Interest: A historian who chooses to working a particular field of study, chooses the
same out of interest. If someone chooses something with a particular interest, it brings
a natural subjectivity to the interpretation.
  We cannot have objective history, as mere fact without analysis cannot make history.
Subjectivity by itself, is not a problem. But subjectivity should not descend to the level
of prejudice or bias. If historians are using their work solely to propagate their ideology,
they should be boycotted by the academic community.
 Subjectivity could also be contained by adopting the Renaissance model of history
writing. First, facts have to be straight, then there has to be rational and scientific
interpretation of the facts. This model could minimize subjectivity in history.
Otherwise, perspective in any field, plays a very important role.

HISTORICAL EVIDENCE
 This refers to the role and process of taking and applying of evidence in history.

SOURCES OF HISTORICAL EVIDENCE

1. Archaeological sources;
In this criteria, inscriptions by Ashoka for instance, can be classified. Inscriptions can
be found in several forms. Numismatics or coins, are also evidenced as historical
evidence. Coins show very unique characteristics. For instance, Akbar, in the Mughal
period, issued a Vishnu-Lakshmi coin. This allowed for the interpretation that Akbar
was a liberal who was all-accepting of the Hindu culture. By the Gupta period, there
was a debasement of the gold content, this shows the then decline of the Indian
economy.
Artefacts which come out of excavations also act as archaeological sources. A dancing
bronze statue of a dancing girl, for instance, when it came into the light of the
historians, led to the idea that the society was materialistic and utilitarian. The statue
was depicted as nude, and this led to the interpretation as to whether the dancing girl
was a prostitute or whether nudism was sanctioned in society. National archives and
the archives of the India House in London, show the evidences of history.
2. Literary sources;
They could be primary or secondary sources. Biographies etc., are secondary sources.
Letters, diaries, speeches are primary sources. Literary sources have existed for a long
period of time, and Vedic history was documented in the early ages. India has a very
rich past in this regard, in how a lot of our artefacts have been smuggled to European
markets. The Nalanda University library burning, or foreign travellers who carried
Indian manuscripts to China. This had a positive effect, in how Buddhism spread to
China and Japan.
3. Foreign sources;

USE OF EVIDENCE IN THE WRITING OF HISTORY

Myth and History: Myth might have come across for centuries, but there is no tangible
evidence to justify the same. Eg. Mahabharata, Ramayana. Problem is that when one tries to
justify such events, they do not find any evidence. So it is considered mythology and not
history. E.g., the history of Dwarka. Historians do not deny its happening, but they do not
accept it in the absence of hard evidence.

Criteria for the Credibility of Historical Evidence

1. Was the primary witness able to tell the truth?

This can be understood through a number of parameters.
Spatial and temporal closeness: When the incident is happening, whether or not the
witness was present on the scene or whether he was observing from 100 metres. A
better perspective is obviously found closer. His proximity with the incident is an
important aspect. Temporal closeness, refers to whether he was there at the time of the
incident, or whether he came in minutes, days months or years after.
Competence of the observer: The aspects of the observer, like his professionalism or
role in the incident, is an important factor in determining whether or not the observer
was able to tell the truth about the historical fact.
Degree of attention: Whether the primary witness was paying complete attention,
allows for a determination of the level of truth.
2. Willingness to tell the truth
This talks about the intention of the observer in putting forward evidence. The
observer may pervert the truth, for different reasons. He may hide the truth, or may
put forward a partial truth. The truth would in this case, be compromised and
influenced by bias.
Bias: Observer bias may be biased towards the object of his observations. This bias
may be deliberate or unintentional.
Literary Style: Furthermore, a literary style difference may in turn, impact the truth. A
lot of such observers have written in a poetic style, giving scope for interpretation.
Literary style, in this context, becomes very important.
Formalities and conventions: Formalities and conventions also pose a problem
behind the ascertaining the real truth. Example of the American War of Independence,
whose declaration was only signed on August 2, 1776 but which is still celebrated on
July 4.
3. Independent corroboration
Pulkesan II defeated King Harshvardhan. This means to test the witness from other
sources, in order to let go of any exaggeration or misguidance that one source provides.
4. Reputation of the author
The reputation of the person/observer who has written the report works in his favour
or against him. If he is known for writing the truth, it becomes significant in
determining whether or not such a person's evidence would be considered credible.
5. Lack of self-contradiction
The work in the document has to be free from self-contradiction. Refuting something
that has been stated by you, is something that reduces the credibility of the evidence.
E.g., Manusmriti was full of self-contradiction. Therefore, people found out that
Manusmriti was not written by Manu, and that it was compiled over several ages by
someone named Bhrigu.
 6. Contradiction from other sources
It becomes disputable and less credible if there are other sources which directly
contradict the proposition so put forth.
7. Freedom from anachronism
The work should be free of anachronism. It should not be chronicled wrongly, and it
should be exact in its chronology.

CONTROVERSIES IN HISTORY
BACKGROUND

 There was no official writing in India, until the British period. The first historical
writing in India came from James Mill, who made an account, "History of India" in the
1820s was the first official account of the history of India.
 What good would they have found in rewriting history? The idea of a benevolent
despot, in order to promote the idea that they were reformists. The connotation which
could be brought from the White Man's Burden, the Civilization Project, etc., and they
accordingly wanted to promote ideological hegemony. This was the reason James Mill
wrote the history of India. This helped prolong their rule. Legitimacy to a ruling class
can be provided by alteration of history.
 Hitler and Napoleon similarly, also altered history. Everywhere, James Mill wrote of the
ridicule of the Indian Gods and culture. One of the problems of Mill's work, was
periodization. He divided the history of India into three periods. He called these
periods Hindu India, Muslim India and British India.
 Historians found this periodization to be a root of communal history.
Communalization crept into the writing of history, and it impacted history at its very
root. Gandhi accordingly said, "It is better to not teach history than to teach a coloured history".
Accordingly, Hindu India was shown as thriving, while medieval Muslim India was
classified as having slaughtered the initial thriving.
 The seeping into a person's consciousness that it took place was perhaps not envisaged
to have been to such a great degree.
 Macaulay, Wilson Smith and the Cambridge School's views on Indian history, which
denied the existence of the Indian Freedom Struggle, calling the movement the 'charge
of rebels against the benevolent British Raj'.
 The Muslim rulers' medieval period was called the 'Dark Age'. While medieval India
had great expansion of art, culture and lifestyle, these aspects were not highlighted. In
the Mughal period, the Rajputs were the right hand of the Mughal rulers. Terming all
suppressed as Hindus and all the oppressors as Muslims was factually incorrect, as for a
small bribe, the Rajputs were allowed to autonomously run administration.

POST-1947 INDIA

 The nationalist and Marxist sc

  There was no true historical account at this point. The Government of India, under
Nehru, felt the need to write a history of India. R.C. Majumdar was given the task to
write the official history of India.
 At this point, since colonial rule had just ended, there was a tendency to glorify Indian
history. Majumdar realized that due to governmental interference and their desire to
write history a certain way, he would not be able to write history properly. He
therefore, resigned. Majumdar was a nationalist.
 In 1977-80, the altering of history textbooks took place. This happened due to the
Janata Dal government, led by Morarji Desai. Most of the textbooks authored by
Romilla Thapar for instance, said that they did not criticized the Mughal period as a
dark age, and they did not talk about the policies of Aurangzeb.
 Another criticism was that the textbooks did not talk about Aurobindo Ghosh and
Lokmanya Tilak and their achievements much, in the sense that their achievements had
not been emphasized. Based on this, they sought to change the textbook. RSS and
other rightist groups supported the rewriting textbooks. They could not make
substantial change however, because they raised controversy in India.
 In the 1990s, after the Babri Masjid demolition on December 6, 1992, the BJP came to
power in a number of states. Around 1993, the National Steering Committee on
Textbook Evaluation submitted its report that in a number of states where BJP came
to power, the textbook was changed and reflected a communal view of the past.
Thousands of RSS-run schools like Sarasvati Shishumandir and Adarsh Vidyamandir
taught a very narrow communalized history of India. This report explained the gravity
of the situation in India. In such schools, it was taught for instance, that The Iliad was
inspired by the Ramayana and the Mahabharata. It also said that Alexander was
defeated by Porus. It also stated that Samudragupta built the Qutub Minar.

POST-2000 CONTROVERSIES IN HISTORY

1. The Beef-Eating Issue: Section IV of the book sent, has a reference by Romilla
Thapar. This talks about for special guests, beef was served as a manner of honour.
Man's life was valued as much as a hundred cows, and she said that cow was not a holy
animal in the Vedas. Beef-eating was not attacked by her, and the Aryans, who ate beef,
ate the same only when the cows became old. Milch cows were not slaughtered.
Around 2nd to 3rd century BC, the cow started to be perceived as a holy animal.
Before that, while the cow was important, it was not holy. Godhuliveda and terms such
as these have been derived in the Vedas from cows. The rightist view even today, rides
on the idea that the cow was always considered a holy animal.
2. Take notes for 16/01/2019

3. Reference of Jainism:
4. Harappan Horse/Origins of Aryans: The Rightist groups had claims that the Aryans
were indigenous people. This issue has inspired politics. A German scholar Friedrich
Maxmillan gave this theory that the Aryans came from Central Asia. This Maxmillan
theory was accepted by most historians, as there is historical evidence to support the
same. Evidences for the same were:
a. The Boghaz Koi Inscription: The Boghaz Koi Inscription is located at Asia
Minor. This inscription is available today, and it is mentioned therein that in 1500
BC, five different branches of the people went to five different parts of the world.
One of these branches went to Meluha. Before Megasthenes wrote 'Indica',
Meluha was the term used to refer to India. This inscription has also been tested
by the Carbon Testing method. Therefore, this is clinching evidence of the origin
of the Aryans.
b. Nature of Civilization: The Indus civilization, which was before the Harappan
civilization, is claimed by the Rightist groups to have eventually become the
Aryans. The Vedic civilization was rural, while the Aryans were an urbanized
civilization. How would it become possible that an urban Aryan civilization
became a rural Vedic civilization? This contrast in civilization debunks this theory
that the Indus civilization eventually became the Aryans.
c. Philological Evidence: The science of phonetics is philology. Scholars have
shown philology to understand different words. Due to the languages, and
dialects, similarities can be found in different languages. AA dictionary of such
phonetic similarities between Sanskrit and English has been developed.
d. Horse Evidence: This horse evidence has become extremely controversial in
present times. The Indus Valley civilization has no evidence of horses whatsoever.
There are different depictions, but none of these depictions have any horses.
Horses were absent in the Indus Valley civilization. Mules were present, but
horses are usually even now, imported. This horse evidence is significant, as
horses were an important part of future Aryan success. The Aryans from Central
Asia defeated the indigenous population because of their horses.
In recent times, the NDA Government changed the NCERT Director and N.S.
Rajaram was made the NCERT Director. He claimed to have found a seal from the
Indus Valley civilization that contained a depiction of horses. This news reached the
media, but when the seal was carbon tested, it was found to be fake. He (Rajaram)
sought to artificially change history.
The reason they did this, was because their thesis was that outsiders were the enemy. It
was this thesis, that would be in dispute if Aryans were considered outsiders. In order
to prevent or cure this dispute, they were hellbent on trying to prove that the Aryans
were an indigenous population. The Vedic Aryans came to India because of the scope
for exploitation. Their understanding personified natural phenomena, and was
anthropomorphic. The Vedic religion emerged as a result of this anthropomorphism.
In modern times, the Aryan Maxmillan theory has become the Aryan Migration
Theory. This theory merely states that the Aryans were not a violent population, and
that they peacefully migrated to India. The Aryans had matrimonial relations with the
indigenous population. Pathans, Jats for instance, depict Aryan features like fair faces,
tall and handsome, etc.
 AMARTYA SEN – THE ENTERPRISE OF
KNOWLEDGE (ISHRITA TA)
 The newspapers were full of articles on history. In this background, Amartya Sen
was invited to give an address.
 In the very first sentence, he states that history could be made bunk through
motivated manipulation. The title herein talks about the interdependence of history
with other sciences. In this regard, it becomes a significant enterprise of
knowledge.
 He has underlined three different aspects or utilities of historic interest.
a. Epistemic Interest;
b. Practical Reasons; [In order to address existing problems, we have to look to
the past]
c. Idea Scrutiny; [In understanding a natural enquiry into the history of self. In
the fights about nation and nationalism, and in the development of an 'us and
them' philosophy. Today, identity politics like politics of caste, religion, region
are invoked on the basis of history][Khan Abdul Gaffar Khan is the only
Pakistani to win the Bharat Ratna. His son once said that his Muslim identity
was 1500 years old but his Pakistani identity was only 50 years old. The
interplay of this identity of Muslim and Pakistani for instance, in different
contexts, is identity scrutiny].
 Heterodoxy in his article talks about the approach which a professional should
have. A person's beliefs should not influence his work. Categorical simplification
has been used as a term here, referring to 'duty for duty's sake'. Heterodoxy has
been described as a view which allows for objectivity and history which is free
from bias and in that sense, truly scientific.
 'Meta-history' has been referred to as the history of histories. The way history is
written in India, has been described. Then, he refers to James Mill and his history-
writing traditions.
 In the end, he talks about the references to a number of personalities.
Brahmagupta, Al-Beruni, Tagore, Aryabhata, Mill as been referred to.
a. Aryabhata: He discovered zero and the calculation for eclipses was given by
him. Aryabhata was during the Gupta period.
b. Brahmagupta: He was influenced by the orthodox approach. The belief of
Rahu and Ketu and Rahu eating the sun which caused eclipses, was believed.
c. Al-Beruni: He gave his reasoned criticism on both Aryabhata and
Brahmagupta. He praised Aryabhata and criticized Brahmagupta. Al-Beruni
gave a very objective.
d. James Mill: James Mill never came to India, and he gave observations about
India while sitting in Britain. He demeaned India while never having actually
visited India. He almost calls Indians good-for-nothing, without ever having
met them. This was un-objective and prejudiced interpretation.
 Sen also talks about positional objectivity, and brings up a discussion on the same.
However, this is subjectivity.