Legal Glossary - CLAT PDF Download

Bankruptcy

A person who is unable to pay his debts can be declared bankrupt by the Court. All his assets are then taken over by the court for distribution to his creditors. Bar A collective noun indicating a body of lawyers.

Bench

The composition of judges sitting to hear a matter in court. In the High Court, judges can sit singly, in division benches of two judges or in full benches of three or more judges. In the Supreme Court, the vacation judge or judge in chambers may sit singly; division benches comprise two or three judges; constitution benches five or more judges. The largest bench constituted in the Supreme Court has been of thirteen judges for the Kesavananda Bharati case in 1973. One or more judges in a case may give judgement, but it is the majority opinion that is the judgement of the Court. A smaller bench is bound by the judgement of a larger bench; the judgement of a bench can only be overruled by the judgement of a larger bench. See judgement.

Bequeath

To dispose of personal property by Will.

Bona Vacantia

Goods that do not have an owner. Generally they go to the finder.

Brief

A bunch of papers, in the form of a paperbook, relating to a case. A brief is compiled by an advocate, filed in the Court and used during hearings.

Cause List

List issued by the Registry of the matters to be heard by the court on any day. The bench, courtroom number and the position of the matter are indicated. The cause list may take myriad forms: weekly list, advance list, supplementary list and the daily list.

Caveat

Where it is apprehended that an opposite party may file a case, a party may file a document requesting the court that no order be made in the case without hearing the caveator.

Caveator

A party who files a caveat.

Civil 

Describes the nature of all proceedings which are not criminal.

Class Action

In a class action, a member of an identifiable group of persons files a petition. These persons form a class if they have a common grievance.

Cognizable Offence

An offence in which arrest can be made without a warrant.

Contempt Of Court

A party wilfully disobeying an order of a court can be held in contempt of that court. Under the Contempt of Courts Act, 1971 this is defined as ’civil contempt’. Any act that lowers the authority of the Court or interferes with the course of justice is defined as ’criminal contempt’. Each court has the power to punish anyone committing contempt of a court and in some cases the Court can issue suo motu notice of contempt. Under Article 129 of the Constitution, the Supreme Court is given the power to punish for contempt; under Article 215 of the Constitution the High Court is given similar powers.

Costs

When giving the final decision in a case, the Court can award costs to either party. Generally the losing party in a litigation is directed to pay the successful party. If the Court does not specify the amount of costs, they are determined by the Registry, taking advocates’ fees, court fees and expenses into account. A party is sometimes required to pay costs during the course of the litigation, for failing to comply with the Court’s directions.

Court Fees

These are mandatory charges payable by affixing judicial stamps on petitions, applications and various kinds of documents before they are filed in a court. It is only in legal aid matters that the petitioners are exempt from paying these fees.

Dasti Notice

Dasti is a persian word, which means ‘by hand’. Dasti Notice means service of the notice by the Petitioner on the Respondent(s) in person, and not by the Registry through post. This requires a specific order by the court. It is a procedural device that assists the petitioner in minimizing delay

Decree

The formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

Dominus Litis

The actual litigant directly interested in the case and its outcome.

Epistolary Jurisdiction

A term referring to change in the procedure of the courts allowing letters to be treated as writ petitions.

Estoppel

A legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation, or denial.

Ex Gratia

Translates from Latin as ’out of grace’. Where a court directs that a payment be made to a party ex gratia, it may not be adjusted against any legal right or claim of that party.

Examples of Ex Gratia

Ex-Parte

In the absence of the opposite side or party.

In Lieu

In place of.

In Limine

Translated from the Latin as ’preliminary’, for example, when a writ petition is dismissed in limine, it is dismissed at the admission stage.

In Pari Delicto

When both the parties are equally in fault.

Infructuous

A petition or application to the court becomes infructuous when the fundamental premises upon which a petition is based no longer exist or where the relief sought has already been granted to the petitioner.

Inquisitorial Proceedings

Fact-finding proceedings, not necessarily involving disputing parties. The Court investigates and ascertains the facts of a matter, for instance by appointing Commissions, which are given specific terms of reference. Often faced with difficulty in getting all the information necessary to resolve the issues brought in PIL, the Court has found this procedure to be convenient.

Interim Order

Any order by a court before a final order is made.

Interlocutory Application

Petition seeking a relief even while the main petition remains in the Court. This may be in the nature of a stay, direction, permission (e.g. to amend the petition), exemption (e.g. from payment of court fees), condonation of delay, modification or clarification of an earlier order, restoration of a petition dismissed for non appearance of a party.

Judgement

The final order of a court in a case which, while giving reasons, conclusively decides the rights of parties in the case, resolves the dispute and grants reliefs. See bench, order.

Judicial Review

A term that describes the function of the judiciary being able to examine and correct the actions of all the organs of State—the executive, the legislature and the judiciary itself. Judicial review is part of the basic structure of the Indian Constitution.

Junior Advocate

Any advocate who wants to practise law, enrols with a Bar Council and generally begins work in the office of a practising advocate.

Jurisdiction

This indicates the scope and extent of a court’s powers. For instance, a court only has territorial jurisdiction within the territory over which its powers extend. Jurisdiction is also used to describe the nature of the proceedings in the Court, for example: civil original jurisdiction, criminal appellate jurisdiction. A court’s decision can always be challenged on the ground that while deciding a case it has exceeded its jurisdiction, i.e. powers, or that it has exercised a jurisdiction it does not possess.

Justiciable

A matter is justiciable if it lends itself to adjudication by a court. This is determined by criteria laid down in law. For example, the correctness of the foreign policy of a state may not be examined by a court because it is not justiciable.

Laches

Neglect of a person to assert his right within reasonable time. This results in barring of a remedy which would have been otherwise available.

Legal Aid

A system by which legal services are rendered at government cost to those in financial need and who cannot afford the cost of litigation. This is mandated by Article 39A of the Constitution. In Delhi, the Delhi High Court Legal Services Committee (DHCLSC) and the Delhi Legal Services Authority (DLSA) provide legal aid on behalf of the State.

Liability

 

The assignment of responsibility and accountability forcorrecting a legal wrong or the violation of a legal right.

Litigation 

The totality of the legal proceedings in any dispute.

Locus Standi

Translated from Latin as ’place of standing’, locus standi gives the right to pursue a litigation. Under this rule, only a person or group of persons affected by the issue may petition the Court. A petition may be dismissed on the preliminary ground that the petitioner lacks locus standi. However, in PIL, the locus standi of public spirited persons to petition on behalf of others has been recognized. This relaxation of the rule of standing is an important feature of PIL—for instance, journalists, lawyers, politicians, social activists, students, or any ’concerned individual’ not acting for personal interest or gain, and not as a ’busy body’, have been given standing.

Mutatis Mutandis

The law in a particular situation is said to apply mutatis mutandis in a different situation when it is used with any changes that are necessary in the latter. This means that matters or things are generally the same, but that details such as names, offices etc. are altered when necessary.

Order

Any oral or written direction given by a Court or any authority which is to be obeyed.

Ordinance

A codified law made, as a temporary measure, by the President of India or the Governor of a State when the Parliament or legislature of a state is not in session. This power is exercised under Articles 123 and 213 of the Constitution.

Party

One who files a petition or against whom a petition has been filed.

Perjury

This occurs when a person gives false evidence or false affidavit in a case.

Petition

A written document filed in a court asserting a claim or a right and seeking relief on legal grounds.

Pleadings

A collective noun for all the petitions, affidavits, replies, rejoinders drafted by or on behalf of the parties to a case.

Prayer

The relief(s) asked for in a petition or application.

Prima Facie

At first sight; on the face of it.

Pro Bono Publico

Translated from the Latin as ’for the public good’. In PIL, this refers to a petitioner acting bonafide in the public interest.

Public Interest Litigation-Pil

In law only an effected person can approach the court for redressal of his grievance. However, courts all over the world have come to the aid of poor and distress without directly being approached by them. In India this concept was propounded by Justice Bhagwati, when he treated ordinary letters from public minded individuals as writ petition. The concept of PIL is no where provided in the constitution but Supreme Court has been quiet generous in accepting PILs whenever a matter concerning public interest / environment was raised before it. According to Supreme Court it can under Article 32 interfere wherever and whenever in justice cause by the state action to the poor and helpless who cannot directly approach the court.

Puisne Judge

A judge other than the Chief Justice.

Res Judicata

A legal principle which prevents a party to a case which has been finally decided from bringing an action on the same issue. For example, a case is barred by res judicata if an earlier case between the same parties has decided upon the same points. This is embodied in Section 11 of the Code of Civil Procedure, 1908.

Respondent

A party against whom a petition is filed. A proforma respondent is a party against whom no relief is sought.

Stay Order

A party filing a petition may require some immediate relief, even before the respondents can be heard or a final decision given. An application is filed seeking an interim order either to prevent the respondents from performing an action that will affect the rights of the petitioner or to prevent an order from being carried out.

Sub Judice

A matter pending decision by a Court. Parties to such a matter are required not to do anything that would affect the outcome of the case.

Special Leave Petition

The correctness of any order made by any court or tribunal can be questioned by filing a petition in the Supreme Court under Article 136 of the Constitution. If the Supreme Court grants permission, i.e. 'leave' the petition is registered as an appeal.

Stare Decisis

The principle that decisions of Courts in previous cases must be followed in subsequent cases of similar nature.

Statute

A codified law that is enacted by the Parliament or a State Legislature. A statute may provide for the making of Rules and Regulations by the executive to facilitate its implementation.

Stay Order

A party filing a petition may require some immediate relief, even before the respondents can be heard or a final decision given. An application is filed seeking an interim order either to prevent the respondents from performing an action that will affect the rights of the petitioner or to prevent an order from being carried out.

Sub Judice

A matter pending decision by a Court. Parties to such a matter are required not to do anything that would affect the outcome of the case.

Sui Generis

Translated from the Latin as ’of his/her own kind’, this means that a person, place or thing is of a distinctive nature.

Suo Moto

The Court may take action on its own when facts requiring legal intervention reach its notice. The Court is then said to be acting suo moto.

Supreme Court

The highest court in the country constituted under Article 124 of the Constitution. Its decisions are law under Article 141 and are binding on all lower courts. It has unlimited powers to do complete justice. It exercises original as well as appellate jurisdiction. Under Article 143 the President of India can ask the Supreme Court for an opinion on questions of law or fact. States can file suits against each other or against the Union of India under Article 131. The Supreme Court can transfer cases to itself from the High Courts or from one High Court to another under Article 139A of the Constitution. It can also transfer civil cases from one Court to another under S 25 of the Code of Civil Procedure, 1908, and likewise criminal cases under S 406 of the Code of Criminal Procedure, 1973. Apart from special leave petitions, in certain instances, appeals can be filed directly against the judgments of lower courts and tribunals. Petitions challenging the election of the President or Vice-President of India are also filed directly in the Supreme Court. The chairperson of a public service commission may be removed only after an inquiry by the Supreme Court. The Supreme Court has a sanctioned strength of 31 judges, headed by the Chief Justice of India. The seat of the Supreme Court is New Delhi and its language is English.

Ultra Vires

Outside the power of.

Vakalathnama

An Urdu word denoting a document by which an advocate is authorized to represent a party in court.

Void

One that law regards as never having taken place.

Voidable

Capable of being set aside as void at the option of a party.

Vox Populi

Translated from the Latin as ’the voice of the people’.

Waiver

Giving up a claim or a right that can be lawfully exercised. However, there can be no waiver of a fundamental right.

Writ

A writ is a direction that the Court issues, which is to be obeyed by the authority/person to whom it is issued.

Writ Petition

A petition seeking issuance of a writ is a writ petition. Pits in the first instance in the High Courts and the Supreme Court are writ petitions.

A writ of habeas corpus is issued to an authority or person to produce in court a person who is either missing or kept in illegal custody. Where the detention is found to be without authority of law, the Court may order compensation to the person illegally detained.

A writ of mandamus is a direction to an authority to either do or refrain from doing a particular act. For instance, a writ to the Pollution Control Board to strictly enforce the Pollution Control Acts. For a mandamus to be issued, it must be shown:

a) That the authority was under obligation, statutory or otherwise to act in a particular manner;

b) that the said authority failed in performing such obligation;

c) that such failure has resulted in some specific violation of a fundamental right of either the petitioner or an indeterminate class of persons.

A writ of certiorari is a direction to an authority to produce before the Court the records on the basis of which a decision under challenge in the writ petition has been taken. By looking into those records, the Court will examine whether the authority applied its mind to the relevant materials before it took the decision. If the Court finds that no reasonable person could come to the decision in question, it will set aside (quash) that decision and give a further direction to the authority to consider the matter afresh.
For instance, the permission given by an authority to operate a distillery next to a school can be challenged by filing a petition asking for a writ of certiorari.
A writ of prohibition issues to prevent a judicial authority subordinate to the High Court from exercising jurisdiction over a matter pending before it. This could be on the ground that the authority lacks jurisdiction and further that prejudice would be caused if the authority proceeds to decide the matter. Where the authority is found to be biased and refuses to rescue, a writ of prohibition may issue. A petition seeking a writ of quo warranto questions the legal basis and authority of a person appointed to public office. For instance, the appointment of a member of a Public Service Commission not qualified to hold the post can be questioned by a writ of quo warranto and appointment nullified if found to be illegal.
A writ of declaration issues to declare an executive, legislative or quasi- judicial act to be invalid in law. For instance, a court could declare S. 81 of the Mental Health Act, 1987 that permits use of mentally ill patients for experimentation to be violative of the fundamental rights of the mentally ill and therefore illegal and void. A petition seeking such declaratory relief must also necessarily seek certain consequential reliefs. For instance, immediate discontinuance of the illegal practice and appropriate remedial compensation.
These apart, a writ petition could seek other writs, orders and directions which the Court may fashion in response to the facts placed before it.