JURISPRUDENCE-II

What is the administration of Justice? Analyze the different theories punishment?

Ans:
The administration of justice refers to the function of the state in maintaining law and order by enforcing
laws, protecting rights, and punishing wrongs. It is a sovereign function of the state, primarily exercised
through courts and judicial systems.
Main Objectives:
• Uphold rule of law
• Ensure justice and fairness
• Protect individual rights
• Maintain public order and peace
Types of Justice:
1. Civil Justice – Resolves disputes between individuals or organizations (e.g., contract, property,
tort).
2. Criminal Justice – Deals with offenses against the state or society, and involves punishment.

Theories of Punishment
Theories of punishment explain the purpose and justification for punishing offenders in criminal law.
These are essential in understanding why and how punishment is imposed.
1. Retributive Theory
• "An eye for an eye."
• Based on moral vengeance—the offender deserves to suffer for the harm done.
• Justice is achieved by balancing the scales.
• Criticism: It can be harsh and does not aim at reforming the offender.
Example: Death penalty or severe punishment for murder as a way of exacting retribution.
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2. Deterrent Theory
• Aim: Discourage future crimes.
• Individual deterrence – Prevent the same offender from repeating the crime.
• General deterrence – Warn society at large.
• Effective where law enforcement is swift and certain.
Example: Heavy fines for corruption to deter others in government.
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3. Preventive (or Incapacitation) Theory
• Aim: Physically prevent the offender from committing further crimes.
• Achieved through imprisonment, death penalty, or disqualification.
• Focus is on protection of society rather than reform.
Example: Life imprisonment for habitual offenders.
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4. Reformative Theory
• Focus: Change the mindset of the offender.
• Belief: Crime is a result of environmental or psychological conditions, not inherent evil.
• Emphasizes education, counseling, rehabilitation.
• Popular in modern criminal justice systems.
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Example: Juvenile justice system that prioritizes reform over punishment.
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5. Expiatory Theory
• Based on repentance and atonement by the offender.
• Once the offender is repentant, they are considered purified.
• Influenced by religious and moral perspectives.
Example: Traditional systems allowing public apology or compensation for wrong.
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6. Compensatory Theory
• Focuses on compensation to the victim rather than punishing the offender.
• The offender must repair the harm caused.
• Increasingly relevant in civil and restorative justice models.
Example: Paying damages in tort cases or restitution in criminal law.
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Conclusion
In the administration of justice, the choice of punishment theory reflects societal values—whether to
punish, deter, reform, or compensate. The modern trend is a combination (mixed theory) that includes
deterrence, prevention, and reform to serve both society’s protection and the offender’s rehabilitation.

Define ‘Negligence’? What are its kinds and theories?

Ans:
Definition of Negligence
Negligence is a legal wrong committed when a person fails to take reasonable care that a reasonable
person would take under similar circumstances, resulting in damage or injury to another.
Legal Definition:
Negligence is the breach of a legal duty to take care, which results in damage undesired by the defendant
to the plaintiff.
— (Winfield)
Negligence is both a tort and a ground for liability in criminal and civil law, particularly in tort law.
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Essential Elements of Negligence:
1. Duty of care owed by the defendant to the plaintiff
2. Breach of that duty
3. Resultant damage or injury (causation)
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Kinds of Negligence
1. Civil Negligence
• Arises in tort law.
• Focus is on compensation to the injured party.
• Based on duty of care in relationships like doctor-patient, employer-employee, etc.
2. Criminal Negligence
• More gross or reckless in nature.
• Can lead to punishment such as imprisonment.
• Example: Death caused by reckless driving under Section 304A IPC.
3. Contributory Negligence
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• Where the plaintiff is also negligent and contributes to the damage.
• It may reduce or eliminate liability of the defendant.
4. Comparative Negligence
• Modern approach (more common in Western jurisprudence).
• Liability is divided based on the degree of fault of each party.
5. Gross Negligence
• A higher degree of negligence showing willful disregard for others’ safety.
• Often used to distinguish from ordinary negligence in insurance or criminal law.
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Theories of Negligence
1. Subjective Theory (Fault Theory)
• Focuses on the mental element of the wrongdoer.
• Negligence arises only when there is culpable mental attitude or recklessness.
• Criticized for being difficult to prove.
2. Objective Theory
• Emphasizes external behavior rather than the internal mindset.
• Based on the reasonable man test—what an average person would have done.
• Widely accepted in modern tort law.
Case Reference:
Donoghue v. Stevenson (1932) – Established the modern principle of duty of care.
3. Mixed Theory
• Combines both objective conduct and subjective fault.
• Useful where degrees of negligence and context must be considered (e.g., medical negligence
cases).
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Conclusion
Negligence is a core principle in tort law, where liability arises not from intention but from carelessness
or failure to exercise reasonable care. Understanding its types and theories helps determine
responsibility and the extent of damages in legal disputes.

What is “Right” in the Wider Sense? Critically examine the concept of liberty and
power?
Ans:
I. Meaning of “Right” in the Wider Sense
In jurisprudence, the term “right” can be understood in both narrow and wider senses:
A. Narrow Sense of Right
• A legally protected interest that gives a person the power to claim something against another.
• Involves a correlative duty on others (as per Hohfeld).
Example: A person’s right to property imposes a duty on others not to trespass.
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B. Wider Sense of Right
• Includes not just legal rights, but also liberties, powers, and immunities—as explained by Wesley
Hohfeld.
• It refers to all types of legal advantages a person may have in law.
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According to Hohfeld:
• Right (claim-right): Correlates with a duty.
• Liberty (privilege): Absence of a duty to act in a certain way.
• Power: Legal ability to change legal relations.
• Immunity: Freedom from the legal power of another.
Thus, in the wider sense, a “right” includes liberty, power, and immunity, not just enforceable claims.
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II. Concept of Liberty
A. Definition
• Liberty is the freedom to act without legal restraint.
• It means the absence of a duty—the person is legally permitted to act or not act.
Example: A person has the liberty to walk in a public park; no law forbids it.
B. Types of Liberty
1. Positive Liberty: The ability to act and fulfill one’s own will.
2. Negative Liberty: Freedom from external interference (mostly legal or governmental).
C. Critical View
• Liberty is not absolute; it must be balanced with public order and rights of others.
• In legal theory, liberty does not impose duty on others—it simply removes restrictions.
• A person’s liberty must be exercised within the limits of law (as per Dicey and Mill).
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III. Concept of Power
A. Definition
• Power is the legal capacity to change legal rights and duties, either for oneself or others.
Example: A judge has the power to sentence a convict; a landlord has the power to terminate a lease.
B. Nature
• Power involves the ability to create, modify, or extinguish rights and obligations.
• It exists only within the framework of legal rules.
• Power correlates with liability in Hohfeld’s scheme (if A has power, B has liability).
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IV. Critical Examination
Liberty vs Power
Aspect Liberty Power
Nature Absence of duty Capacity to alter legal relations
Correlative Term No-duty Liability
Effect Freedom to act or not Authority to act with legal consequences
Example Free speech Power to make laws or contracts
Criticism and Importance
• Hohfeld’s analysis clarifies legal reasoning by distinguishing these concepts.
• However, in practice, courts and lawmakers often blur these lines.
• Understanding these distinctions is critical for legal interpretation, especially in constitutional
and administrative law.
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Conclusion
The term “right” in the wider sense includes not only enforceable claims but also liberties, powers, and
immunities. A clear understanding of liberty (freedom to act) and power (legal authority to act) is
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essential in analyzing legal rights and duties. These distinctions form the foundation of modern legal
theory and influence the structure of rights in constitutional and civil law.

Define Legal Person. Discuss the nature of liability of a corporation for the acts of
its agents and representatives.
Ans:
I. Definition of Legal Person
A legal person (also called juristic person or artificial person) is an entity recognized by law as having
rights and duties, capable of owning property, entering contracts, and suing or being sued—just like a
natural person.
Salmond’s Definition:
“A legal person is any subject matter other than a human being to which the law attributes personality.”
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II. Examples of Legal Persons
• Corporations (companies, firms)
• Government bodies
• Trusts, societies
• Religious idols (recognized in Indian law)
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III. Corporate Personality
A corporation is a legal person distinct from its members. Once incorporated under law (e.g., Companies
Act, 2013), it gains:
• Separate legal identity
• Perpetual succession
• Right to sue and be sued
• Ownership of property in its name
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IV. Liability of a Corporation for Acts of Its Agents and Representatives
Since a corporation is an artificial person, it acts through human agents—its directors, employees,
officers. The company can be held liable for their acts under certain conditions.
A. Civil Liability
• A company is liable for contracts, torts, or negligent acts done by its agents within the scope of
their authority.
• Doctrine of Vicarious Liability applies—acts of employees bind the corporation.
Case Example:
Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co. (1915) – The company was held liable for the acts
of its managing director.
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B. Criminal Liability
1. General Rule: A company can be criminally liable, even though it has no physical body or mind.
2. Mens rea (guilty mind): Courts have evolved the “alter ego” doctrine – the acts and intentions of
top-level managers (e.g., MDs, CEOs) are attributed to the company.
Landmark Case:
Iridium India Telecom Ltd. v. Motorola Inc. (2011, SC) – The Supreme Court held that companies can
be prosecuted for offenses requiring mens rea, by attributing the guilty intent of top officials.
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3. Limitations:
o A corporation cannot be imprisoned, so only fines or other civil penalties can be imposed.
o In offenses with mandatory imprisonment, courts either ignore prosecution or interpret
punishment creatively (e.g., fines).
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C. Doctrine of Identification / Alter Ego
• The corporation is identified with its directing mind and will (senior management).
• If the director or officer commits a wrongful act, the company is deemed to have committed it.
Case Law:
Tesco Supermarkets Ltd. v. Nattrass (1972) – The House of Lords held that the company's liability
depends on whether the person acting was the company's "directing mind."
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D. Statutory Liabilities
• Under Companies Act, Income Tax Act, Environment Laws, corporations are held liable for
regulatory violations, frauds, and statutory breaches.
Section 140(5), Companies Act 2013 – Corporate frauds by auditors or company officials lead to
criminal liability of the company and its agents.
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V. Conclusion
A corporation, as a legal person, is capable of incurring both civil and criminal liability. While it can
only act through its agents, modern jurisprudence ensures that companies cannot escape liability by
hiding behind their artificial nature. Through doctrines like vicarious liability and alter ego, law
attributes responsibility and accountability to corporate entities in the interest of justice and public
safety.

Define legal right. What are its various kind? Discuss.

Ans
Definition of Legal Right:
A legal right is a right which is recognized and protected by law. It is a claim or entitlement that an
individual can enforce in a court of law. A legal right provides the holder with the ability to demand or
prohibit certain actions in a legally recognized manner. Legal rights are essential to maintaining justice
and ensuring individuals' freedoms within a legal system.
According to Salmon:
"A legal right is an interest protected by a rule of law. A right is an interest recognized and sanctioned by
the law, and the law will enforce the right in case of a violation."
In simpler terms, a legal right can be understood as the capacity to perform an act or to be protected
from the violation of one’s interests, with legal remedies available in case of infringement.
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Characteristics of Legal Right:
1. Legally Recognized: Legal rights are established by the law and can be claimed or enforced in
courts.
2. Enforceable by Law: If violated, legal rights can be protected or enforced by the judiciary.
3. Correlative Duty: Every legal right has a correlative duty (i.e., the obligation on others not to
infringe the right).

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4. Universal or Particular: Legal rights can be general, belonging to all persons (e.g., human rights),
or they may be specific to an individual (e.g., contractual rights).
5. Protectable: Legal rights are protected by the state through the judicial system, meaning the state
ensures enforcement and compliance.
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Kinds of Legal Rights:
Legal rights are classified into various categories based on different criteria. Some of the common
classifications are:
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1. Positive and Negative Rights
• Positive Rights: These are rights that entitle a person to receive something from others or from
the state. In other words, they impose a duty on others to act in a particular way.
o Example: The right to education, where the state is required to provide facilities for education.
• Negative Rights: These rights entitle a person to be free from interference by others. They
impose a duty on others not to act in a certain way.
o Example: The right to privacy or freedom of speech, where others are prohibited from infringing
on these freedoms.
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2. Civil and Political Rights
• Civil Rights: These are rights that protect the individual’s liberty, property, and equality before
the law. Civil rights are primarily designed to safeguard an individual's freedom from infringement by
governments, social organizations, and private individuals.
o Example: Right to life, freedom of speech, property rights, etc.
• Political Rights: These rights ensure an individual's ability to participate in the political process.
Political rights are concerned with the participation in governance, the exercise of power, and
democracy.
o Example: Right to vote, right to stand for election, etc.
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3. Public and Private Rights
• Public Rights: These rights are associated with the interests of the community and are usually
vested in the government. They are rights that serve the collective welfare of the public.
o Example: Right to freedom of assembly, right to petition the government.
• Private Rights: These are rights that pertain to individuals and are intended to protect their
personal interests. They include the right to own property, the right to contract, etc.
o Example: Contractual rights, right to inheritance, etc.
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4. Natural Rights and Conventional Rights
• Natural Rights: These rights are inherent to human beings by virtue of their human nature and
are not dependent on the law. They are pre-existing, independent of any government or legal system.
o Example: Right to life, freedom, equality.
• Conventional Rights: These rights are granted by the state through legislation, social
conventions, or specific legal systems. They are not natural but are created by societal or governmental
action.
o Example: Right to property under the Indian Constitution, contractual rights, etc.
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5. Absolute and Relative Rights
• Absolute Rights: These are rights that are unconditional and cannot be restricted or limited by
any other rights or legal interests. They are universally applicable.
o Example: Right to life (Article 21 of the Indian Constitution), freedom from torture.
• Relative Rights: These are rights that can be limited or qualified in certain circumstances. These
rights may be subject to restrictions under particular situations or interests.
o Example: Right to free speech may be limited by laws regarding defamation or hate speech.
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6. Fundamental Rights and Legal Rights
• Fundamental Rights: These are the basic human rights that are guaranteed to every citizen by the
Constitution. They are inherent, and no law can violate them unless there is a compelling reason.
o Example: Right to equality, right to freedom of speech and expression, right to protection against
discrimination, as stated in Part III of the Indian Constitution.
• Legal Rights: These are rights that arise from legislation and statutory provisions. They are
specific rights granted by the law, such as property rights, contractual rights, etc.
o Example: Right to contract, property rights, rights arising under specific statutes like the
Consumer Protection Act.
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Distinction Between Legal Right and Moral Right:
• Legal Right: A legal right is protected and enforceable by law. If violated, it can be remedied
through legal action.
o Example: Right to property, right to freedom of speech.
• Moral Right: A moral right, on the other hand, is not enforceable by law but is recognized based
on ethics and morality.
o Example: Right to be treated with respect, right to education as an ethical value (though it may
not always be legally enforceable).
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Conclusion:
Legal rights form the backbone of a legal system, providing individuals with a framework to ensure
justice, fairness, and protection of their interests. They are fundamental to social order and ensure that
citizens can seek redress in case of any infringement. The different kinds of legal rights ensure that the
law serves both the individual and society in a balanced manner, fostering equality and justice for all.

What are the essential elements of valid custom? Distinguish between analytical and
historical view about custom?
Ans
Essential Elements of a Valid Custom
In jurisprudence, custom is considered one of the earliest and most important sources of law. For a
custom to be valid and legally recognized, it must fulfill certain essential conditions:
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1. Antiquity (Immemorial Origin)

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• The custom must be ancient—it should have been in practice for a long time.
• There is no fixed period in Indian law, but it must be shown to be long-standing and
uninterrupted.
• Example: A community following a religious or social practice for centuries.
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2. Reasonableness
• The custom must be just, fair, and reasonable.
• It should not be oppressive, arbitrary, or immoral.
• Courts will not recognize customs that are contrary to public policy or natural justice.
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3. Certainty
• The custom must be clear, definite, and unambiguous in nature.
• Uncertain or vague customs cannot be enforced.
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4. Consistency (Continuity and Uniformity)
• The custom must have been followed continuously without interruption.
• Occasional or isolated practices do not qualify as valid customs.
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5. Peaceable Enjoyment
• The custom must have been enjoyed peacefully without frequent disputes or objections.
• Constant challenges or objections to the custom undermine its validity.
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6. Conformity with Law and Morality
• A custom must not be against statutory law, morality, or public order.
• A custom that violates fundamental rights or laws passed by the legislature cannot be considered
valid.
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7. Must Be Obligatory
• It must be regarded by the people following it as compulsory, not merely optional or out of
courtesy.
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8. Must Not Be Opposed to Public Policy
• Customs contrary to public interest or which promote inequality, superstition, or injustice are
invalid.
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Case Law:
• Mohana Kumaran v. Krishnan – It was held that a custom must be ancient, continuous, and
certain to be recognized by law.
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Distinction Between Analytical and Historical View About Custom
1. Analytical View (Austin and Bentham)
Aspect Analytical View
Key Jurists John Austin, Jeremy Bentham
View on Custom Customs are not law unless recognized by the sovereign or legislature.
Focus Emphasizes command of the sovereign; only state-recognized customs become law.
Legal Validity Custom has no independent legal force; it becomes law only when enacted or accepted by
a law-making authority.
Example A custom becomes enforceable only after it is codified or recognized by courts or
Parliament.
2. Historical View (Savigny and Henry Maine)
Aspect Historical View
Key Jurists Friedrich Carl von Savigny, Sir Henry Maine
View on Custom Customs are the earliest and most genuine source of law.
Focus Law is a result of people’s customs, practices, and traditions; it evolves from society, not from
commands.
Legal Validity Custom has intrinsic legal authority even without formal recognition.
Example Ancient Indian customary practices like Hindu marriage rites or village panchayats
forming binding norms before formal legislation.
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Summary of the Difference:
Point of Difference Analytical View Historical View
Source of Law Sovereign’s command Evolved from society
Role of Custom Not law until recognized Primary source of law

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Legal Authority Derived from state recognition Inherent in social usage
Focus State and command Society and tradition
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Conclusion:
Understanding custom and its recognition in law is crucial for jurisprudence. While the analytical school
emphasizes state authority in recognizing customs, the historical school views customs as the organic
root of law, evolving from the will and practices of the people. In the Indian legal system, courts accept
customs only when they satisfy the essential conditions and are not in conflict with statutory or
constitutional provisions.

Discuss various theories of punishment. Which theory of punishment is most

suitable to India?
Ans
Theories of Punishment
Punishment is a method adopted by the State to maintain law and order by penalizing those who violate
legal norms. In jurisprudence, punishment is analyzed not just as a legal tool but also as a philosophical
and social instrument of justice.
There are five major theories of punishment:
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1. Retributive Theory (Theory of Revenge)
• Key Idea: "An eye for an eye, a tooth for a tooth."
• Purpose: The offender must suffer for the wrong done. Punishment is a form of moral vengeance.
• Basis: Justice demands that evil be returned with evil.
• Criticism: It focuses on retaliation, not on reforming the offender or preventing future crimes.
• Example: Capital punishment for murder.
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2. Deterrent Theory
• Key Idea: To deter (discourage) the offender and others from committing crimes.
• Purpose: Prevent future crimes by creating fear of punishment.
• Types:
o General Deterrence – Prevents society at large from committing crimes.
o Specific Deterrence – Prevents the same offender from reoffending.
• Criticism: May fail if the criminal is not rational (e.g., crimes of passion or mentally unstable
offenders).
• Example: Harsh sentences for corruption to deter public servants.
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3. Preventive Theory (Incapacitation Theory)
• Key Idea: Prevent the criminal from committing further crimes by disabling them.
• Purpose: Protection of society.
• Methods: Imprisonment, death penalty, exile.
• Criticism: It does not address the root causes of criminal behavior.

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• Example: Life imprisonment for habitual offenders.
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4. Reformative Theory (Rehabilitation Theory)
• Key Idea: Crime is a disease; punishment should be corrective and rehabilitative, not retaliatory.
• Purpose: To reform the offender into a law-abiding member of society.
• Methods: Education, vocational training, counseling, probation.
• Supporters: Modern penologists and jurists like Justice Krishna Iyer.
• Criticism: May fail for hardened criminals or be seen as lenient by victims.
• Example: Juvenile justice system focusing on reformation rather than punishment.
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5. Expiatory Theory (Moral Theory)
• Key Idea: Punishment should allow the offender to repent and cleanse their soul.
• Purpose: Based on moral and religious grounds, promoting repentance and reconciliation.
• Criticism: Lacks practical utility in modern secular legal systems.
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Most Suitable Theory for India: Reformative Theory
Why Reformative Theory is Most Suitable for India:
1. Indian Constitution’s Focus on Human Dignity:
o Articles 14 and 21 emphasize equality and right to life and personal liberty, supporting reform
over revenge.
2. Supreme Court's Support:
o In several judgments, Indian courts have emphasized reformation over retribution.
o Justice V.R. Krishna Iyer: Advocated for reformative justice, especially in prison reforms.
3. Juvenile Justice System:
o Focuses on rehabilitating juveniles rather than punishing them.
4. Rehabilitation Programs in Indian Prisons:
o Vocational training, education, and skill-building are increasingly adopted to reintegrate
prisoners into society.
5. Social and Economic Conditions:
o Many crimes in India are committed due to poverty, illiteracy, unemployment—factors that can
be addressed through reformation rather than harsh punishment.
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Case Law:
• Mohd. Giasuddin v. State of A.P. (1977) – Supreme Court emphasized the need to reform and
rehabilitate offenders rather than impose harsh sentences.
• State of Gujarat v. Hon’ble High Court of Gujarat (1998) – Highlighted the role of reformative
approach in prison administration.
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Conclusion:
While all theories of punishment serve a purpose, the Reformative Theory is most in line with India’s
constitutional values, judicial trends, and social conditions. It aims to reduce crime in the long run by
transforming offenders into responsible citizens rather than punishing them purely out of vengeance or
fear.

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What are the characteristics of a “Legal person”? Discuss the various theories of
corporate personality.
Ans
I. Meaning of Legal Person
A legal person (also called juristic person) is not a human being, but an entity recognized by law as
having rights and duties. Legal persons can sue and be sued, own property, enter into contracts, and be
held liable, just like natural persons.
Definition:
According to Salmond:
“A legal person is any subject-matter other than a human being to which the law attributes personality.”
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II. Characteristics of a Legal Person
1. Artificial Creation:
o A legal person is created by law or recognized by legal systems (e.g., companies, trusts,
municipal bodies).
2. Capacity to Hold Rights and Duties:
o A legal person can own property, enter contracts, file lawsuits, and be held liable.
3. Recognition by Law:
o Legal personality depends entirely on legal recognition, not physical existence.
4. Perpetual Succession:
o Most legal persons (e.g., corporations) exist independent of their members and continue to exist
beyond the lives of individuals.
5. Separate Legal Identity:
o A legal person has a distinct identity from its members (e.g., a company is different from its
shareholders).
6. Can Be Sued or Sue in Its Own Name:
o Legal persons can initiate legal proceedings or be made a party to legal proceedings.
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Examples of Legal Persons in India:
• Companies under the Companies Act, 2013
• Municipal Corporations
• Universities
• Religious institutions (e.g., temples, as recognized in Shiromani Gurudwara Prabandhak
Committee v. Som Nath Dass)
• State (as defined under Article 12 of the Constitution)
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III. Theories of Corporate Personality
A corporate person refers to an artificial legal entity like a company or corporation. Jurists have
proposed several theories to explain how and why such entities have legal personality.
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1. Fiction Theory
• Proponent: Savigny
• Idea: A corporation is a fiction created by law. It does not exist in reality but is treated as a
person for legal convenience.

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• Legal Personality: Based purely on legal recognition.
• Example: A company is not a real person but the law treats it as one.
• Criticism: Ignores the real social and economic role of corporations.
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2. Realist Theory
• Proponent: Gierke
• Idea: A corporation is a real entity, not just a legal fiction. It has a real social existence and will
of its own, apart from its members.
• Legal Personality: The law only recognizes the personality which already exists in reality.
• Example: Trade unions, churches, or business corporations with a real, functioning structure.
• Criticism: Overstates the independent nature of corporations.
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3. Concession Theory
• Idea: A corporation is a creation of the state, and its personality exists only because the state has
conferred it.
• Legal Personality: Exists only by grant or concession of law.
• Example: Registration of companies under the Companies Act.
• Criticism: Not all legal entities are created by the state (e.g., partnerships, associations).
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4. Purpose Theory (Brinz’s Theory)
• Proponent: Brinz
• Idea: Legal personality is attributed to achieve certain purposes. The real holders of rights and
duties are those who administer the property.
• Legal Personality: Exists to fulfill an objective, not for the sake of the corporation itself.
• Example: Trusts or charitable organizations.
• Criticism: Fails to explain profit-making corporations.
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5. Bracket Theory (Symbolist Theory)
• Idea: Corporate personality is only a symbol or bracket. The company is not a real entity; its
name is used to group together the people behind it.
• Legal Personality: A convenient label for managing the legal relationships of its members.
• Criticism: Undermines the concept of separate legal entity in corporate law.
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6. Hohfeld’s Theory
• Proponent: Wesley Newcomb Hohfeld
• Idea: Focuses on legal relations like rights, duties, privileges, etc., rather than personality. A
corporation exists because the law allows it to enter into legal relations.
• Criticism: Abstract and complex; does not deal with practical recognition.
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Conclusion
A legal person, especially a corporate person, is a legal construct that allows non-human entities to
function within the legal system. Among the theories, Fiction Theory and Concession Theory have
heavily influenced Indian legal thinking, especially in company and corporate law. However, Realist
Theory better reflects the social and economic role played by corporations in modern India.
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Case Reference:
• Salomon v. Salomon & Co. Ltd. (1897) – Confirmed that a company is a separate legal entity
distinct from its shareholders.

Discuss the Doctrine of Vicarious Liability. What are the chief forms in which it is
recognized?
Ans
I. Meaning of Vicarious Liability
Vicarious Liability refers to a legal principle where one person is held liable for the wrongful act (tort or
crime) committed by another, not because of any fault of their own, but due to their legal relationship
with the wrongdoer.
It is based on the Latin maxim:
“Qui facit per alium facit per se” – He who acts through another is deemed to have acted himself.
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II. Essentials of Vicarious Liability
1. There must be a relationship (e.g., employer–employee, principal–agent).
2. The wrongful act must be committed by the other person (e.g., servant or agent).
3. The act must be done in the course of employment or authorized activity.
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III. Theoretical Basis of Vicarious Liability
1. Control Theory – Liability is based on the control the superior has over the acts of the
subordinate.
2. Benefit Theory – The person receiving the benefit of the subordinate’s work should also bear the
risk of loss.
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IV. Chief Forms in Which Vicarious Liability is Recognized
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1. Liability of Employer for Acts of Employee
• The employer is liable for torts or negligent acts committed by the employee in the course of
employment.
Case Law:
• State of Rajasthan v. Vidhyawati (AIR 1962 SC 933)
The State was held liable for the negligence of its employee (a government driver).
Key Points:
• Acts done during employment: Employer is liable.
• Acts done outside the scope of employment: Employer is not liable.
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2. Liability of Principal for Acts of Agent
• A principal is liable for acts done by an agent within the scope of authority given to them.
Example:
If an agent signs a contract on behalf of the principal, the principal is bound by it.
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3. Liability of Partners

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• Every partner is vicariously liable for acts done by other partners in the course of business of the
firm.
Example:
If a partner commits fraud while dealing with a client of the firm, all partners may be held liable.
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4. Liability of Master for Acts of Servant
• Similar to employer-employee. If a driver (servant) employed by a company causes an accident
while performing his duty, the employer (master) is held liable.
Case Law:
• Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (1977 AIR 1735) – Employer
was held liable for negligent driving of the company’s driver.
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5. State Liability (Sovereign vs. Non-Sovereign Functions)
• The State can be held vicariously liable for the acts of its employees when such acts are
committed during non-sovereign functions (like transport, administration).
• No liability for sovereign functions (e.g., military operations, policing).
Important Case:
• Kasturilal v. State of U.P. (AIR 1965 SC 1039) – State not liable for police misconduct in a
sovereign function.
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6. Liability in Torts and Crimes
• In tort law, vicarious liability is well-established.
• In criminal law, vicarious liability is rare and exists only when statutes impose liability (e.g.,
company laws, environmental laws).
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V. Exceptions: When Vicarious Liability Does Not Apply
1. Acts done outside the scope of employment.
2. Acts done for personal purposes.
3. Independent contractors (unless under direct control).
4. Delegation without authority.
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VI. Conclusion
The Doctrine of Vicarious Liability ensures that liability is fixed not only on the wrongdoer but also on
the person who is in a position of control or benefits from the acts of the wrongdoer. It is based on
principles of fairness, justice, and public policy, especially in contexts like employment, agency,
partnership, and governance.

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