Criminal Laws In India And Australia: A Comparative Study

The Legal System and Primary and Secondary Rules

The constitution that the tribe had developed previously contains various rules and regulations that are required to be followed by the members of the tribe while dealing with their own members and while dealing with the members of other tribe. According to the concept of law which has been written by H.L.A.HART, there needs to be the existence of a legal system in every society (d’Angeville et al., 2017). For the existence of a valid legal system in the society two basic requirements needs to be followed that is a valid rule of behaviour which is in conformity with the system and proper rules of recognition which are reasonable enough to get accepted effectively. Every society has its own primary and secondary rules which confer duties and powers on its members respectively. For the purpose of survival, there needs to be the existence of natural law in the ordinary rules and regulations of the society. Living in a tribe or a community will require the minimal level of association with other people also hence forth to tackle those situations natural law is very essential. Since humans are vulnerable to bodily harms as they possess the same level of bodily strength and intellectual setting of sanctions is necessary to punish the miscreants. Through these rules and regulations a minimum level of security can be granted in respect of persons, property and the rights guaranteed (Hart, 2016).  

The research question states that commission of crime in any society is an act which is prejudicial to the society as a whole. In any community existence of a definite legal system provides a clear view regarding the offences and the prescribed penalties that are incorporated in the legislations so that the guilty can be booked under those laws (Jain, 2017). 

Criminal Legal System in India

In any country, the foremost priority and object of the criminal laws is to protect the society and its members from the hands of wrongdoers and law breakers. In India there are a vast range of laws that deals with the criminal offences and its punishments. India is having both kinds of criminal laws that are the substantive law and the procedural laws. Under the substantive criminal laws offences are defined with their penalties and under the procedural law the process of administration of the substantive law is given.

In India the two main statutes which hold provisions and laws regarding the criminal offences is the Indian Penal Code 1860 and the Code of Criminal Procedure 1973. IPC contains all the various kinds of offences that can be committed against a human being or property with the schedules annexed to the Act regarding the penalties and punishments for the same (Sharma, 2016). The code contains stringent punishments with a jail term of at least 7 to 10 years for the maximum number of offences and for heinous crimes lifelong imprisonment along with capital punishments are also rendered in case of hardened criminals. Administration of criminal justice in the Indian courts are done under three categories namely the investigation, inquiry and trial regarding which procedures are provided in the criminal procedure code for every offence under the Indian penal code 1860 (Subramanian, Ramanathan, Kumar, Chellappan, & Ramasamy, 2016).

The Indian Penal Code 1860 and the Code of Criminal Procedure 1973 in India

Section 53 of IPC, 1860 states about the kinds of punishments that are given for the various offences:

• Death penalty
• Life imprisonment
• Forfeiture of property
• Fine

Criminal Legal System in Australia

The purpose of criminal laws in Australia is to enforce criminal sanctions against the offenders. Australian criminal laws originated mainly from the common laws and the laws created by the legislatures (Hayes, & Luther 2018). In Australia very less statutory legislations are enacted to deal with the criminal offences as compared to the criminal laws existing in India. Here exists a division of law that is the indictable offences (felonies) and summary offences (misdemeanours). Felonies are treated with death punishments and misdemeanours are treated with life imprisonment (Hardy, 2016). 

The criminal code Act 1995 consolidates the laws and general principles which are in accordance of the commonwealth laws. It states about criminal responsibility that applies to any offence committed under the act (Van der Veen, 2017). Under the criminal laws in order to prove the guilt of any person prior existence of physical and fault elements are necessary which is the conduct of the person concerned with negligence as well (Lynch, McGarrity & Williams 2015).

Other criminal legislations promulgated in Australia are The Crimes Act 1900 (NSW), Anti-terrorism Act (no.2) 2005 and The Summary Offences Act 1988(NSW). The provisions under these laws contribute in controlling the societal balance in Australia (Hogg & Quilter2017). Moreover the circumstances of the societies in India and Australia are very different with a different mindset of population existing in both the countries. So what is applicable in Australia might not be fruitful for India. The only disadvantage that Australia might be having as compared to India is the absence of any defined criminal legislation as compared to any other country.

Gumland Property Holdings Pty ltd. V Duffy Bros Fruit Market (Campbell town) Pty Ltd

Issue: in this case landlord transit management Pty ltd owned a grocery shop in a shopping centre. In the year 1993 Duffy Bros Fruit market ( campbelltown) private ltd entered in to a contract of lease with transit regarding the store for a period of 15 yrs. In 1999 Duffy experienced downfall in his trading entered into a sub tenancy deed which stated the payment of subtenant rent a responsibility of Duffy. The deed mentioned the expiration year of the sub tenancy to be July 2002. But in the year 2001, transit sold the free hold of the premises to Gumland property holdings private Limited. After the expiry of the term of sub tenancy in July 2002 the sub tenant decided not to enter into any further term and henceforth entered into a period of over holding. The sub tenant then started paying half of the rent that is usually payable under the sub lease.  As a result of which Duffy was unable to pay the complete rent to gumland, which directly resulted in the breach of the lease and the deed. Gumland then bought an action against the Duffy for the damages and all rent due under the lease (Collins, 2016).

Criminal Laws in Australia

Rule: under the Australian principles of contract law in order to form a valid contract there has to be the existence of an agreement which provides obligations for the parties to be fulfilled. These obligations are created from the contractual intentions of both parties concerned and with consideration for the same. Then only the contract becomes enforceable by law (Wright, 2016).

In the present case, both the parties to the contract that is the transit and Duffy wilfully entered into an agreement of lease the terms of which were expressly written down. In this case the rule of breach of contract will be applicable on the part of Duffy as he has violated the express terms of the deed regarding the payment of the complete rent as it was his responsibility.

Application: in this case the rule of breach of contract has been applied. High court of Australia while dealing with the case allowed gumland’s appeal and granted him with the required amount of damages.

Conclusion:  in this case at last the commercial lease was terminated due to failure on the part of lessee to pay the required rent under the deed and the lessor got entitled to damages. Under the Australian principles of contract law breach of a contract is committed when either party to the contract fails or refuses to perform the contractual obligation. 

Remedies: in order to compensate the injured party it is necessary that a substantial damage has been caused as a result of the breach of the contract. Payment of compensation is sometime an inadequate remedy hence under the principles of contract law the other remedies available are the specific performance of the contract or asking for an order of injunction.

Case law on damages for breach of contract or agreement

Hadley vs.  Baxendale (1854)

In this case it was held that when a breach of contract has occurred then the damages which have been suffered by the injured party should be fair and reasonable in nature. Basically the test of remoteness of damages in contract law was evolved under this case law. The damage which has been caused must be result of gradual breach of the contract but not something completely remote from the terms of agreement or contract (Teng, 2018).

Case law on fraudulent misrepresentation

Museprime properties vs Adhill properties (1990)

ISSUE: in this case three properties were being sold through auction but the particulars were being represented wrongly. The fact that was being represented wrongly was the rents from the properties are open to negotiation. The auction particulars were not properly stated and the auctioneer as well misrepresented the rent reviews. After successfully bidding of all the three properties by the plaintiff companies they came to know about the actual situation. The plaintiff then established a case of fraudulent misrepresentation and prayed for rescission of the contract.

Breach of Contract Case in Australia and Application of Contract Law

Rule: under the Australian principles of contract misrepresentation is one of the grounds for termination of the contract. In this case a fraudulent representation was made recklessly to the plaintiff company by concealing the fact regarding rent review (Andrews, 2016).

Application: in this case breach of contract would apply by simply following the procedure of rescission which invalidates the complete contract.

Conclusion: in the present case it was held by the judge that the plaintiffs had succeeded in the claim put forwarded by them of misrepresentation and ordered the defendant to return their deposit.

Remedies: the remedies available against the case of misrepresentation are:

Rescission – through this method the contract gets fully repudiated and allows the parties to the contract to regain their actual position. This remedy can be pleaded before the court for all sort of misrepresentations committed.

Indemnity and damages- here the court asks the defendant to pay back any expenses that might have been incurred by the plaintiff in order to comply with the terms of the contract.   

Issue: in the given scenario Pedro and Lisa were retailers of imported French jewellery which they use to carry out in Melbourne, Victoria. In the mean time lisa sold her part of the business to pedro an entered into a contract as well which stated that she would not engage in this business for a period of two years. One year after entering into the agreement lisa engaged herself once again in selling imported French jewellery resulting in breach of the agreed contractual terms.

Rule: under the Australian principles of contract law the agreement or the contract gets vitiated on breach of any of the express terms of contract (Poole, 2016). Here in this case Lisa has expressly repudiated the contract by violating the terms of the agreement.

Remedies: under the provided circumstances Pedro can enforce the contractual promise made by Lisa. The remedies that are available to him include:

(1) Damages or compensation- Pedro can ask for an amount of compensations for the loss that has been sustained by him directly due to breach of the contract. Based on the degree of loss occurred he will be granted compensation.

(2) Injunction- Pedro can also ask for an action of injunction against the court of law. Following the process of injunction the court will restrain Lisa from continuing the business further. Disobeying the same would lead to facing of consequences by Lisa

References

Andrews, N. (2016). Misrepresentation and Coercion. In Arbitration and Contract Law (pp. 189-203). Springer, Cham.

Collins, T. L. (2016). The doctrine of frustration, commercial leases and the Canterbury earthquakes.

d’Angeville, C., Darwin, C., Deflem, M., DeLone, M. A., Denzin, N. K., Dernberg, H., … & Dollfuss, E. (2017). 348 Classic Writings in Law and Society. Classic Writings in Law and Society: Contemporary Comments and Criticisms, 347.

d’Entreves, A. P. (2017). Natural law: an introduction to legal philosophy. Routledge.

Hardy, K. (2016). Violent extremism online and the criminal trial. In Violent Extremism Online (pp. 103-121). Routledge.

Hart, H. (2016). The New Challenge to Legal Positivism.

Hayes, R. M., & Luther, K. (2018). # CSI Effect: How Media Impacts the Criminal Legal System. In # Crime (pp. 43-78). Palgrave Macmillan, Cham.

Hogg, R. G., & Quilter, J. (2017). Submission to ALRC, incarceration rates of Aboriginal and Torres Strait Islander peoples.

Jain, M. P. (2017). Outlines of Indian legal history. NM Tripathi Private Ltd.

Lynch, A., McGarrity, N., & Williams, G. (2015). Inside Australia’s anti-terrorism laws and trials. NewSouth.

Poole, J. (2016). Textbook on contract law. Oxford University Press.

Sharma, A. (2016). Fines as a punishment in Indian Penal Code, 1860: A jurisprudential failure or commodification of an offense?. Journal of Contemporary Criminal Justice, 32(3), 243-263.

Subramanian, N., Ramanathan, R., Kumar, V. M., Chellappan, D. K. P., & Ramasamy, J. (2016). Legal terms used in reception order and their relevance to judicial process. Indian journal of psychological medicine, 38(5), 431.

Teng, J. (2018). Transaction Costs and Optimal Liability Rule in the Context of Hadley v Baxendale (1854). International Journal of Trade and Policy, 1.

Van der Veen, A. (2017). Criminal law: Examining liability for felony murder through joint criminal enterprise. LSJ: Law Society of NSW Journal, (38), 88.

Wright, B. (2016). Codification, macaulay and the indian penal code: The legacies and modern challenges of criminal law reform. Routledge.