1
Hidayatullah National Law University, Raipur (C.G.)
B.A. LL.B. (Honours)
Merged Mid Term & End Term Examination, Jan-Apr, 2021 B.A. LL.B. (Honours)
Name – R. Rohan
ID No. – 018/2018/1952
Semester-VI, Roll no -116
Jurisprudence-II
Answer 1
INTRODUCTION
“Laws that do not embody public opinion can never be enforced”
-Elbert Habbard
Public opinion is an overall combination of any or a specific subset of society's viewpoints.
Primarily, public opinion includes subjective view, tendency or orientation and understanding on
a particular subject or theme. According to Valdimer Orlando Key Jr., an American Political
Scientist, public opinions is defined as “opinions held by private persons which governments
find it prudent to heed.” 1According to Kuppuswamy, “Public opinion consists of opinions held
by people of a smaller or larger community about a particular problem at a certain time.” James
T. Young writes, “Public opinion is a social judgment of a self conscious community on a
question of general importance after rational public discussion.”2
Whereas, the law can be commonly defined as an acceptable order of conduct advanced by the
state or a large social group sharing the same spatial territory. These system of rules are
1
Public opinion by W. Phillips Davison [Link]
2
Public Opinion: it’s Meaning and Characteristics of Public Opinion by Negi Mohita
[Link]
2
accompanied by certain idea, belief, method or customs and is further employed to deal with
crime, business, social relationships, property, finance, etc. The governing body is in charge of
upholding the rules. John Austin’s law definition states “Law is the aggregate set of rules set by a
man as politically superior, or sovereign to men, as political subjects.” As an outcome, law can
be understood as a compilation of standards that must be respected by all, irrespective of their
status. Hans Kelsen created the “pure theory of law”. Kelsen states that law is a “normative
science”. In Kelson’s law definition, “the law does not seek to describe what must occur, but
rather only defines certain rules to abide by.”
There is a strong correlation between legislations and the views prevalent among the public in a
society. In a democracy like India, policies are deeply ingrained within popular sentiment.
Although it is evident that the citizens do not actually shape the regulations, we must remember
that they do nominate their leaders to the government. This body of leaders legislates and reflects
the will of the people. When citizens or electors wish that legislation to be repealed or changed,
their lawmakers make the necessary changes. In this way, it is understandable that public opinion
and legislation are inextricably linked since legislations serve the people's wishes. Popular
interest determines when laws are to be enacted.
The main object of this assignment is to analyze whether the legislation is an effective source of
law in the modern times. Further, this assignment also tries to explain the account of doctrines
and principles evolved by the judiciary in the development of law.
LEGISLATION AS A LEGAL SOURCE
The term "legislation" refers to the act of making laws. According To Austin: “Legislation is the
command of the sovereign or the superior authority which must be followed by the common
masses backed by sanctions”.
In other words, any governmental authority that ordains, authorize or amends law will be
exercising legislative power. However, legislation as a source of law is a very restricted
in definition with only lawmaking by a delegated institution or individual being considered
legislation. Thus, judicial decisions are not legislations within the scope of jurisprudence.
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TYPES OF LEGISLATIONS
Salmond also states that “legislation is either supreme or subordinate”. Hence, legislation can be
separated into two broad categories-
• Supreme Legislation
• Subordinate Legislation
Supreme Legislation
Supreme legislations originate from the sovereign or supreme authority of the state. These
legislations are supreme and cannot be repealed, annulled or controlled by any other legislative
authority. The legislative assembly holds the authority of supreme legislation as there is no
restraint on its absolute authority to legislate. In other words, the sovereign legislator is that
which has no rival in the state. Sovereignty does not involve that the legislator’s power are
unlimited in every way. In India even the supreme legislators cannot amend the basic structure of
India’s Constitution.
Subordinate Legislation
In today's world, it is not always practical for the legislators to enact laws that cover every
aspect. Due to the emergence of recently developed fields, legislation has become not only time
intensive, but also astoundingly challenging and tricky. Subordinate legislation comes into play
when the legislators chalk out the course of action and the purpose of a policy and delegates the
authority to bureaucrats, jurists and other specialists by means of rules, regulations, bye-laws, or
other legislative instruments, to account for working information within the context of the
enactment.
“Subordinate legislation is that which proceeds from any authority other than the sovereign
power. It is dependent for its continued existence and validly on some superior authority. Thus,
enactment of any legislative body inferior to the sovereign constitutes subordinate legislation.”
The Apex Court has emphasised the significance and necessity of subordinate legislation in the
case of Gwalior Rayon Mills Mfg. (Wing.) Co. Ltd. V. Asstt. Commissioner of Sales Tax
and Others and observed that: “Most of the modern socio-economic legislations passed by the
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legislature lay down the guiding principles and the legislative policy. The legislatures because of
limitation imposed upon by the time factor hardly go into matters of detail. Provision is,
therefore, made for delegated legislation to obtain flexibility, elasticity, expedition and
opportunity for experimentation. The practice of empowering the executive to make subordinate
legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs
of a modern welfare State.”
Salmond set forth five kinds of subordinate legislations3, such as-
• Colonial
• Executive
• Judicial
• Local or Municipal
• Autonomous
Here it is important to note that this classification into supreme and subordinate legislation is not
recognized in India. Since in India, legislative assembly is not absolutely supreme in the
understanding as it may be in England. Constitution of India specifies the competence of Indian
Parliament and State Legislatures and also presses checks and balances over the power of these
bodies. In India, nevertheless, we have recognised one form of subordinate legislation, which is
known as Delegated Legislation.
DELEGATED OR SUBORDINATE LEGISLATION IN INDIA
When law-making power is conferred by the legislature upon some other body and that other
body declares laws, it is known as delegated legislation and the legislative power is said to be
delegated. In other words, delegated legislation is a legislation made by any authority other than
the legislature. Salmond defines delegated legislation as “that which proceeds from an authority
other than the sovereign power and is, therefore, dependent for its continued existence and
validity on some superior authority.”
The “Committee on Minister's Power”4 said that the term “delegated legislation” is used in
two senses:
3
Jurisprudence pp. 122-124
5
• It corresponds to employment of the power that is delegated to the executive to make
regulations.
• It means the output or the rules or regulations, etc. made under the power so given.
Delegated legislation in India is referred to as subordinate legislation, i.e., that the
authority making the subordinate legislation is responsible to the legislature and derives
power there from. Delegated legislation is often referred as rules, regulations, by-laws,
orders, notifications, schemes, etc.
Delegated legislation is necessary where the Parliament found it difficult to lay down details
especially in certain fields of technical nature and. therefore, entrusted this task to the
Department and Ministers concerned. Delegated legislation is also necessary to meet cases of
emergency arising out of war, natural calamities, economic degradation, etc. Therefore, the
executive must be fully equipped with rule-making powers so that it may take proper remedial
action immediately without waiting for the law to be passed. Another important point is that,
sometimes public interest may demand that provisions of law should not be made public until the
time fixed for its enforcement is ripe. This objective is very efficiently attained by delegated
legislation. In St. Johns Teachers Institute vs. Regional Director NCTE, the Supreme Court
of India observed: "The main justification for delegated legislation is that the legislature being
overburdened and the needs of the modern day society being complex, it cannot possibly foresee
every administrative difficulty that may arise after the statute has begun to operate. Delegated
legislation fills those ends. The regulation made under power conferred by the statute is
supporting legislation and have the force and effect, if validly made, as an Act passed by the
competent legislature."
Undoubtedly, the main function of executive is to enforce law, but for the regulation of its
departments, the power of rule making is delegated to them. That is why; delegation of the
legislative power under various types of statutes is a normal feature of present day statutory
legislation. Now it is simply inevitable and indispensible. However, in M/s. Tata Iron and Steel
Co. Ltd. vs. Their Workmen, the Supreme Court observed that “the delegation of legislative
power is however permissible only when the legislative policy and principle is adequately laid
4
a Committee appointed in Britain in 1932 to report on the problem of 'delegated legislation'
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down and the delegate is only empowered to carry out the subsidiary policy within the guidelines
laid down by the legislature.”
EFFECTUALITY OF LEGISLATION AS A SOURCE OF LAW IN CONTEMPORARY
TIMES
A very appropriate approach to determine the efficiency of legislative procedure as a source of
law is to list its ascendancy over others, along with some illustrations. I've brought a comparison
between legislation, and precedents in order to stay within the word limit, as these are considered
to be the most important source of law in modern democratic countries. Stated below are some of
the advantages of legislation:
Legislation vs. Precedents
• Reliable authority of legislation- Legislation has superiority over precedents because of
its overriding force and evolving feature. While a precedent has constitutive sufficiency,
legislation has both binding and overriding sufficiency. The legislations are more than
just a source of law. Precedents, on the other hand, cannot overturn the prevailing legal
principle, despite the assertion that it may produce finer law in certain ways than laws
and regulations. Precedents cannot be recursive. C.J. Holmes said: “A Common Law
Judge could not say ‘I think the doctrine of consideration a bit of historical nonsense and
shall not enforce it in my court. It is only by legislation that settled law can be effectively
altered.”
If the statute making body deems that any previous law, maybe a precedent or even a
codified law is unjust then they can abrogate that law. Legislation can also abrogate its
own law. “In a famous case of M.C. Mehta v Union of India, it was witnessed how a
common law principle was changed. Strict liability was abolished and principle of
absolute liability was set as new law in similar circumstances.”
Illustration of Retrospective Legislation
“An instructive instance is furnished by the history of the Mussalman Wakf Validating
Act. The Privy Council decided in Rasamaya v. Fiat a Mahomed5, that a wakf (trust)
for the benefit of the members of the wakif s family from generation to generation and in
5
22 Cal 619(PC).
7
their absence for the benefit of the poor, was invalid and could not be given effect to.
Such wakfs had the sanction of the Koranic law and had always been regarded as valid by
Mahomedan jurists of eminence. The decision of the Privy Council caused a widespread
feeling of alarm among the Mahomedan inhabitants of India. The Mussalman Wakf
Validating Act, VI of 1913, was passed to validate such wakfs. This Act had no
retrospective operation and so could not save trusts of the kind permitted by that Act, but
created before it came into force. There was continuous public agitation for remedying
this defect with the result that Act XXXII of 1930 was passed giving retrospective effect
to the provisions of the previous Act.”
• Professionalism- by distinguishing the two aspects of making law and overseeing it,
legislation allows for a successful division of work. As a result, the effectiveness of the
Legislation has increased. Surprisingly, precedent groups both, the work of making and
enforcing laws.
• Construct or framework: In terms of the framework, statute law is far superior to case
law Positive. To understand the norms and procedures in Legal precedent, we have
to investigate the case's complexities. “As Salmond notices, case-law is gold in mine – a
couple of grams of valuable metal to the huge load of futile material – while rule law is
the coin of the domain, prepared for guaranteed use.”
• Coherency-“Judiciary law will undoubtedly be deficient with regards to incoherency and
fulfilment since it is limited to the specific case just at without fail. Through legislation,
then again, the law fits precise treatment. This is no mean bit of leeway to legislation over
case-law.” Cardozo Says, “is the output of a multitude of minds and must be expected to
contain its proportion of vagaries”6
Dicey’s view: That a case-law system is not as coherent or consistent as a system of
statute law is not admitted by Dicey who observes: “Judicial legislation aims to a far
greater extent than do enactments passed by Parliament, at the maintenance of the logic
or the symmetry of the law. The main employment of a court is the application of well-
known legal principles to the solution of given cases, and the deduction from those
6
Cardozo: The Growth of Law, p. 5.
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principles of their fair logical result. Men trained in and for this kind of employment
acquire a logical conscience; they come to care greatly—in some cases excessively—for
consistency”7.
• Certainty:“A legal system secures greater certainty when the law is codified by
legislation than when it stands on the basis of case-law. Precedents are dependent upon
concrete cases coming before the courts for decision. They cannot by way of anticipation
make rules for cases that might arise in the future. A great many gaps and vacancies are
therefore bound to exist in a system of case-law. The element of uncertainty is greater in
such a system than under enacted. Law. Sir John Salmond, while accepting this position,
points out that a legislator having only hypothetical cases in view cannot make provision
adequately for all the complications that may arise in actual practice. The judge, on the
other hand, being face to face with the problem as it arises in actual life, can lay down
rules better suited to attain the ends that have to be kept in view.”
ROLE OF JUDICIARY IN MAKING AND DEVELOPMENT OF LAW
Do judges make law?
In the case of Rajeswar Prosad Misra vs State Of West Bengal & Anr8 it was observed by
justice Hidayatullah that “No doubt, the law declared by this court (Supreme Court of India)
binds court in India, but it should be remembered that this court does not enact”
It can be understood that judges do not make law in the sense of enactments but they definitely
fill up gaps where enactments stay silent. They also help in checking the validity of new laws as
well as changing old laws which do not coincide with the ideas of the society in contemporary
times. But, judges make law in the form of ‘presidents’. “A precedent is a principle or rule
established in a previous legal case that is either binding on or persuasive without going to courts
for a court or other tribunal when deciding subsequent cases with similar issues or facts.” 9
Presidents“add a great value on deciding cases according to consistent principled rules, so that
7
Dicey: Law and Public Opinion in England, p. 364.
8
16 1965 AIR 1887, 1966 SCR (1) 178
9
Black's Law Dictionary, p. 1059 (5th ed. 1979)
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similar facts will yield similar and predictable outcomes, and observance of precedent is the
mechanism by which that goal is attained.”
In“India, the Fundamental Rights guaranteed in Part III of the Constitution, and the distribution
of legislative powers between Union Parliament and state legislatures in Schedule VII of the
Constitution limit the law-making powers of the Parliament and state legislatures. Any law
enacted by the legislature does not automatically attain the quality of law; it has to satisfy a
further criterion of validity, namely the test of constitutionality. The test of constitutionality is
applied by the judiciary. This gives the judiciary the power to decide whether a law enacted by
the legislature is valid. Legislation thus loses its dominating position as a source of law to some
extent. The power of the judiciary to sit in judgment over laws enacted by the legislature raises
not only questions concerning the relative importance of legislation and precedent, but also very
important jurisprudential questions concerning the inter-relationship between the legislature and
the judiciary.”
PRINCIPLES AND DOCTRINES EVOLVED BY THE JUDICIARY
The“Doctrine of Rule of Law”
The“doctrine of rule of law has been described as ultimate authority of the law. This means that
where there is rule of law no person can be said to be above the law, even the functions and
actions of the executive organ of the state should be subject to the law. The aim of rule of law is
to uplift the freedom and fundamental rights of the [Link] rule of law was established to
ensure that the government does not utilize the law of the territory or country to oppress or limit
individual freedom.”
As a result,“by adhering to the Rule of Law Doctrine, the judiciary ensures that the legislative
upholds the principle of "Supremacy of Law, Equality before the Law," and protects essential
human rights.”
The“Basic Structure Doctrine”
The“basic structure concept is an Indian judicial notion that the Indian Constitution contains
certain fundamental qualities that cannot be changed or destroyed by legislative modifications. In
a number of situations, the judiciary has ruled which aspects of the Constitution are regarded
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fundamental. Democracy, federalism, judicial independence, secularism, and other key features
are thought to be included.”
The“Doctrine of Proportionality”
The“principle of proportionality is the most important general legal principle in the
Administrative Law. The aim and the tools to achieve those goals should be proportionate and
balanced, according to this principle. While adopting the principle of proportionality, the
judiciary takes action. The advantages and disadvantages of an administrative action to check the
balance. An administrative authority while exercising a discretionary power should maintain a
proper balance between any adverse effects which its decision may have on the rights, liberties
or interests of persons and the purpose which it pursues.”
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Answer 2
INTRODUCTION
LEGAL PERSONALITY IN LIGHT OF JURISPRUDENCE
Conceptually, specific variations in thought, feeling, reasoning and acting habits are referred to
as personality. But in jurisprudence, personality has been set apart from mortality and human
beings. Humanity refers only to actual human beings, but personality is a term that sometimes
refers to lifeless things. As a result, personality extends beyond humanity.
Savigny defines “the person as subject or bearer of rights”. Legal personality is a creation of law
whereby certain rights and duties are conferred upon a non human legal entity. Salmond defines
a person as “a being whom the law regards as capable of rights and duties. Any being that is so
capable is a person, whether a human being or not, and no being that is not so capable is a person
even though he be a man.”10
Classification of persons in the eyes of law
• Natural persons.
• Legal or juristic persons.
NATURAL PERSONS
Living human beings are usually regarded as natural persons. Some legal rights and privileges
along with duties have been conferred upon natural persons. A natural person can sue and be
sued under the law. Constitutional and civil rights are customarily for the good interest of natural
persons.
10
[Link]
12
According to Holland, a natural person is “such a human being as is regarded by the law as
capable of rights and duties- in the language of Roman law, as having a status”.11 According to
another writer, natural persons are “living human beings recognized as persons by the state”.
The first requisite of a normal human being is that he must be recognized a possessing a
sufficient status to enable him to possess rights and duties. A natural person is endowed with
rights. Such rights as the right to vote, the freedom to marry, the right to personal liberty, privacy
rights Etc. Normally, these rights are only accessible to human beings, so they are only offered to
humans. An individual who is not yet born does not have these rights. People who are minors
should not yet have the right to vote or marry.
LEGAL OR JURISTIC PERSONS
Legal persons are real or imaginary beings on whom personality is attributed by law by the way
of fiction where it does not exist in fact. Juristic persons are also defined as “those things, mass
of property, group of human beings or an institution upon whom the law has conferred a legal
status and who are in the eye of law capable of having rights and duties as natural persons.”
Law“attributes by legal fiction a personality of some real thing. A fictitious thing is that which
does not exist in fact but which is deemed to exist in the eye of law. There are two essentials of a
legal person and those are the corpus and the animus. The corpus in the body into which the law
infuses the animus, will or intention of a fictitious personality. The animus is the personality or
the will of the person. There is a double fiction in a juristic person. By one fiction, the juristic
person is created or made an entity. By the second fiction, it is clothed with the will of a living
being. Juristic persons come into existence when there is in existence a thing, a mass of property,
an institution or a group persons and the law attributes to them the character of a person. This
may be done as a result of an act of the sovereign or by a general rule prescribed by the
government.” In Shiromani Gurudwara Prabandak Committee v. Som Nath Das 12 , the
Supreme Court held that “a juristic person, like any other natural person is in law also conferred
with right and obligations and is dealt with in accordance with law. In other words, the entity
11
VD Mahajan’s Jurisprudence and legal theory, 5th Edition P-336
12
(2000) 4 SCC 146.
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acts like a natural person but only through a designated person, whose acts are processed within
the ambit of law.”
A“legal person has a real existence but its personality is fictitious. Personification is essential for
all legal personality but personification does not create personality. Personification is a mere
metaphor. It is used merely because it simplifies thought and expression.”
LEGAL STATUS OF AN UNBORN CHILD
The legal status of a fetal child has been a bone of discussion in India and also internationally.
The topic to address is whether an unborn child should be given a legal status and conferred the
personality of an individual right from the moment it is conceived. Legal frameworks around the
world views a foetus as a part of the individual who is carrying it with no status as a separate
person. “The reason that different values are given to life inside the womb and to extracorporeal
life in the modern legislation of many states lies in the fact that the term biological individual is
split into human being and person.”13
It's also worth noting that the controversy surrounding the legal personality of an aborted preborn
child poses considerable concerns about the legitimacy of abortions in different countries around
the globe.
However, a number of American philosophers, jurists, and legal scholars have maintained that an
unborn child is not a fully moral individual from the time of conception. They also refuted
supporters of pregnancy terminations and argued that the unborn have a right to life and that
abortion is murder or almost as bad as murder.
“The Convention on the Rights of the Child”, come into operation on September 2, 1990 was the
initial internationally adopted legal instrument which recognizes human rights to Children.
Personality starts with birth: “A When a child is born alive, he is considered to be a person in
the eye of law. In Hindu law a child in womb is considered in existence and he inherits the
property if he is born alive. If a partition takes place among the co-parceners a share is to be
13
The Legal Personality of an Unborn Child: A Comparative Analysis of USA & India by Siddhartth Singh Nehra &
Abhay Singh Rajput [Link]
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reserved for him. If the share is not reserved then the partition would reopen and the new born
boy would take the same share which he would have taken if he was born before the partition.”
“If a pregnant woman is awarded death sentence, the execution of the sentence shall be
postponed till she is delivered of the child. Abortion and child destruction are crimes. Killing of a
child amounts to murder only when the child is completely born alive. In England it was held
that a posthumous child is entitled to compensation under Lord Campbell's Act for the death of
his father.”
Personality ends with death: “A Certain right protected after death, the rights are generally
created at birth and they extinguish at death. But the law, in certain matters, recognizes and
protects the desires and interests of the deceased. There are three rights in this respect, i.e., about
the deceased.”
There“are three rights in this respect, i.e., about the deceased's body, his reputation and his
estate. The libel to the dead is not an offence in the eye of law, but if the publication of a
defamatory matter about the deceased brings scandal on his family and provokes them to commit
breach of peace, it is a misdemeanour in English law. It may amount to defamation to impute
anything to a deceased person, if the imputation would harm the reputation of that person if
living and is intended to be hurtful to the feelings of the family. The law respects the desires of
the dead person regarding his estate and his estate devolves according to his will if he has left
any.”
In India, “the Medical Termination of Pregnancy Act of 1971” and “the Preconception and
Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994” both recognize the
rights of an unborn child. It is even recognised by the Indian Penal Code, which focuses with
the crimes including abortion and injury to a foetus. Sections 312-316 of the IPC include the
regulations to deal with those offences.
Under “section 13 of the Transfer of Property Act, 1882 property can be transferred for the
benefit of an unborn person by way of trust. Similarly, Section 114 of the Indian Succession Act,
1925 provides for the creation of prior interest before the unborn person may be made the owner
of property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn
person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is
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deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest
in coparcenary property.”
In “India as well in England, under the law of tort an infant cannot maintain an action for injuries
sustained. However, in England damages can be recovered under Fatal Accidents Act, 1846 for
the benefit of a posthumous child.”
Although, court rulings have acknowledged reproductive liberty as a fundamental freedom
granted to women under Indian constitution, legislative decisions and judicial pronouncements
have also imposed fair limits upon these freedoms or liberties. In addition, numerous Indian laws
recognise an unborn child as a lawful person for the purposes of birth and succession
requirement. In short, it can be concluded that an unborn person is endowed with legal
personality for certain purposes.
LEGAL STATUS OF ENVIRONMENTAL ENTITIES
Environmental personhood is a jurisprudential concept that bestows certain rights and duties
on natural entities and confers them with a legal personality. Environmental personhood arose as
a result of the emergence of legal emphasis on the interest of environmental conservation. The
debate has shifted over period from human desires/interests in manipulating environment to
saving nature for upcoming generations and finally to concepts that enable environment to be
preserved as intrinsically important.14
The concept of an environmental entity having legal status traces its origins to Christopher D.
Stone's scholastic study "Should Trees Have Standing? Towards Legal Rights for Natural
Objects" is a project that seeks to establish legal protections for environmental entities and and
the work’s subsequent referral by Justice William Douglas in the 1972 US Supreme Court case
of Sierra Club v. Morton.15
In India, as in other nations, discrete environmental elements have recently been granted
protection, but there have been no significant advancements in the domain. Since there is no new
law relating to nature's rights, court decisions have been the primary source of change. The
14
GwendolynGordon. "Environmental Personhood."(2017),atpage 25
15
[Link]
16
Supreme Court of India declared in T.N. Godavarman Thirumulpad v. Union of India16 that it
was important to move away from the then prevailing anthropocentric view and toward a more
eco-centric one in order to provide proper justice to the world. Anthropocentrism is the
importance placed on nature by humans for the rewards and advantages it can offer.
Ecocentrism, on the other hand, calls for valuing nature for its inherent worth (nature-centered).
Proclamations relating to other living forms have been made in a similar vein.
On similar lines, there have been pronouncements relating to other living forms. In the case
of Animal Welfare Board of India v. A. Nagaraja 17 , the Supreme Court allowed that the
Indian Constitution’s Article 21 right to life could be extended to non-human animals.
The Supreme Court of India ruled in Animal Welfare Board of India v. A. Nagaraja18 that the
Indian Constitution's Article 21 right to life should be applied to non-human animals. In a move
to shield cetaceans from damage, India's Ministry of Environment and Forests proclaimed them
"non-human persons" in 2013. Cetaceans are extremely intelligent and adaptive, according to the
government, and dolphins "should be seen as 'non-human persons' and as such should have their
own special rights." However, the most significant judicial decision on environmental
personhood occurred in 2017. In the case of Mohd. Salim v. State of Uttarakhand 19 , the
Uttarakhand High Court ruled that the Gangotri and Yamunotri rivers are "living bodies with the
status of a legal individual with all the associated rights, responsibilities, and obligations of a
living person." According to the court, an "extraordinary condition" has arrived, since the rivers
are vanishing. And in such a case, exceptional steps are needed. "The rivers have provided both
physical and Spiritual sustenance to all of us from time immemorial. Rivers Ganga and Yamuna
have spiritual and physical sustenance. They support and assist both the life and natural
resources and health and well-being of the entire community. Rivers Ganga and Yamuna are
breathing, living and sustaining the communities from mountains to sea," it said.
Nearly a year after the Uttarakhand High Court issued the above two orders, the Punjab and
Haryana High Court issued a similar decision in Karnail Singh v. State of Haryana, granting
animals in Haryana the status of "legal individual or body" in order to promote their welfare. The
16
[Link]
17
(2014) 7 SCC 547.
18
CIVIL APPEAL NO. 5387 OF 2014 Special Leave Petition (Civil) No.11686 of 2007)
19
CASE NO. WPPIL-126/2014
17
Court also ruled any resident to be a "person in loco parentis" (person acting in lieu of a parent),
allowing residents of the state to file a lawsuit on behalf of the injured animals.
“Even today the essence of the principle propounded by Justice William Douglas back in 1972
can be discerned in a number of judicial pronouncements and legislation across the world that
advocate for according of certain rights to nature and some even going out of their way in
according legal personality to an array of flora and fauna and other environmental elements.
These developments come in as a welcome change to the usual legal narrative which maintains
an anthropocentric view and perspective to cases and disputes involving nature.”
CONCLUSIONS
“A legal entity is a legal construct, created by the combination of five elements: an entity or
subject of law, free will, subjective rights, obligations, and legal personhood.”20
Throughout the last century, jurists have scrutinised the notion of legal personality in great detail.
In practice, the juristic entity differentiates itself by being recognised as a legal person, which
entitles it to certain privileges and binds it to certain obligations. As a result, a legal entity's
activities reflect its will.
The legislations in India seem to be in contrast to the legislation in the United States. In US state
interference is at the point of "compelling purpose." By then, a woman's right to make her own
decisions on childbearing is unalienable. The Medical Termination of Pregnancy Act of 1971
and the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of
1994, however, limit a woman's ability to terminate a pregnancy. Finally, we contend that the
laws in India governing the creation of foetal rights are more harsh and severe than those in the
United States. Women's personhood is violated because they are denied the ability to monitor
their acts during pregnancy.
Given the path that corporate personhood took on its way to the ostensibly unremarkable present
self, it becomes important to enact precursory regulations. With environmental conservation
legislation around the world showing its own collection of restrictions, the definition of
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NATURAL PERSONS, JURIDICAL PERSONS AND LEGAL PERSONHOOD by Elvia Arcelia Quintana Adriano
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Environmental Personhood becomes all the more relevant and enterprising in light of climate
change.
