LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM

Semester – I
B.A.LL.B. (Hons.)

NAME OF THE COURSE TEACHER: Mr. Azim B. Pathan,

B.A., LL.B. (Gold Medalist),
LL.M. (Gold Medalist).
STUDY MATERIAL:
Module – I Nature and Function of Law
Unit-I
a) Meaning and Definition of Law
b) Function and Purpose of Law
c) Classification of Law
i) Public and Private Law
ii) Substantive and Procedural Law
iii) Municipal and International Law
d) Hart’s Concept of Law and the Indian Constitution
(2002) 2 SCC (J) 1

Introduction:
Law, in its widest sense, means and involves a uniformity of behavior, a
constancy of happenings or a cause of events, rules of action, whether in the
phenomena of nature or in the ways of rational human beings. In its general sense law
means an order of the universe, of events, of things or actions. In its judicial sense,
law means a body of rules of conduct, action or behavior of person, made and
enforced by the State. It expresses a rule of human action.
The different meanings of the word ‘law’ may be classified as follows:
1. Law means justice, morality, reason, order, righteousness etc., from the point
of view of society;
2. Law means Statutes, Acts, rules, regulations, orders, ordinances, etc. from the
point of view of society;
3. Law means titles, written laws, judicial precedents and customs as evidence of
law.
Generally the term law is used to mean three things:
First, it is used to mean ‘legal order’. It represents the regime of adjusting
relations, and ordering conduct by the systematic application of the force of organized
political society.
Definition of Law

1
1. Idealistic Definitions:
According to Salmond “the law may be defined as the body of the principles
recognized and applied by the State in the administration of justice”.
According to Gray, “The law of the State or of any organized body of men is
composed of the rules which the Courts, that is, the judicial organ of the body lays
down for the determination of legal rights and duties.”
2. Positive Definition:
According to Austin, “A law, in the strict sense, is a general command of the
sovereign individual or the sovereign body, issued to those in subjectivity and
enforced by the physical power of the State. According to Austin, “law is the
aggregate of rules set by men as politically superior or sovereign to men as politically
subject”. He says, “A law is a command which obliges a person or persons to a course
of conduct”.
3. Historical Definition:
Savigny says that law is not a body of rules set by a determined authority but
is rules which consist partly of social habit and partly of experience. It is not the
product of direct legislation but is due to the silent growth of custom or the outcome
of unformulated public or a professional opinion.
4. Sociological Definition:
According to Duguit, law is essentially and exclusively a social fact. It is in no
sense a body of rules laying down rights. Foundation of law is in the essential
requirements of the community life.
Ihering defines law as “the form of the guarantee of the conditions of life of
society, assured by State’s power of constrain”.
According to Pound, “Law is the body of principles recognized or enforced by
public and regular tribunals in the administration of justice.”

5. Realistic Definition:
Holmes J. says that “the prophecy of what Courts will do, in fact, and nothing
more pretentious, are what I mean by law”. According to realists, the formal law is
simply a guess as to what the Courts would decide and the law is that what the Courts
actually decide.
The modern definition given by Dias is “Law consists largely of ‘ought’
(normative) propositions prescribing how people ought to behave. The ‘oughts’ of
laws are variously dictated by social, moral, economic, political and other purposes”.

2
Subject-matter of Law
Dias lists out the subject material of laws as follows:
1. duties prescribed how people ought, or ought not, to behave with regard to
others who are said to have corrective claims or rights,
2. liberties or freedom to act and not to act;
3. powers to alter existing legal situations,
4.
5.
6. immunities from having existing legal situations altered;
7. means of achieving legal ends;
8. definitions;
9. location of legal relationships;
10. principles, doctrines and standards.
Function and Purpose of Law
Law is an instrument of society and its objects are achievement of justice,
stability and peaceful change.
1. Justice and Law
The ultimate purpose of law is justice. Salmond says that law is “the body of
principles recognized and applied by the State in administration of justice.”
According to Salmond, justice consists in giving to every man his own. The
rule of justice determines the sphere of individual liberty in the pursuit of individual
welfare, so as to confine that liberty within the limits which are consistent with the
general welfare of mankind, within the sphere of liberty so delimited for every man
by the rule of justice, he is left free to seek his own interest in accordance with the
rule of wisdom.
2. Stability
Law must aim at stability in society. To achieve stability a balance has to be
struck not between persons, but between interests. The law has to maximize the
fulfillment of the interests of the community and its members and to promote the
smooth running on the machinery of society. Indeed, the motion of law represents the
need of uniformity and certainty to achieve stability. The stability and security for
maintaining the social order is derived from uniform unchanging and certain rules of
law.
3. Peaceful Change
The existing rules may not provide solution to the cases of changed times and
no rule can provide for every possible case. There is need for flexibility. Flexibility is
necessary to enable the law to adapt itself to social change. As society alters, new

3
social, political and economic requirements creep in and the needs of the people
change from time to time.

Classification of Law
There are four main divisions of law:
1. Municipal law and International law
2. Private and Public law
3. Criminal law and Civil law
4. Substantive law and Procedural law.
Municipal Law:
Municipal law is the law applied within a State. It is also called as ‘lex
proprium civitatis’. The Roman called it the jus civile, the corpus juris civilis. It is the
law of civitas that is the State. It is the part of imperative law.
The characteristic of civil law are:
1. The Municipal law is a positive law. It deals with law as it is.
2. The Municipal law has a uniformity established through the system of judicial
precedents.
3. The Municipal law is in the nature of enjoyments by the State.
4. The Municipal law is territorial i.e. it applies only in the territories of the
State.
Now we can state the Municipal law is all that body of principles, decisions
and enactments made, passed or approved by the legally constituted authorities or
agencies in a State, for regulating rights, duties and liabilities (between the State and
the citizens, as also the citizens inter se, and the citizens of the State in relation to
members of foreign States) and enforced through the machinery of the judicial
process securing obedience to the governing authority in the State.
The Municipal Law or National Law is divided into two classes: Public Law
and Private Law.
International Law:
The term ‘International Law’ was coined by Jeremy Bentham in 1780.
Oppenheim defines International Law as “a body of rules for human conduct within a
community which by common consent of this community shall be enforced by
external power”. This definition postulates three conditions as essential for existence
of International Law. There must be, first, a community; secondly, a body of rules for
human conducts therein; and thirdly, the common consent of that community for the

4
enforcement of those rules by external power. International Law may be classified
into Public Law and Private Law.
Public International Law:
Public International Law is the body of legal rules which applies between
Sovereign States and such other entities as have been granted international
personality.
It is the aggregate of rules to which nations have agreed to conform in their
conducts towards one another. It includes international status, and deals with
questions relating to peace, war and neutrality.
Private International Law:
Private International Law (conflict of laws) is the system of law, in a country,
governing the relations of the citizens of that country, in international matters, matters
affecting foreign contracts and foreign transactions. It applies to individuals and not to
States. Private International Law deals primarily with private rights, duties, and
liabilities of citizens, inter se in cases of foreign or international transactions.
Private Law
Private Law is concerned with the matters concerning the individual more than
the public. It regulates and governs the relations of citizens with each other. The
parties in such cases are private individuals and the State adjudicates the matters in
dispute between individuals through its judicial organs.
Private civil law deals with matters such as contracts, insurance, carriage,
damage, for personal injury, civil wrongs, agency, bailment, sale of goods,
partnership, regulation of companies, insolvency, arbitration, negotiable instruments,
transfer of property, trusts and the like. In democratic countries, the Private Law
regulates the major part of the social life.
In the classification of private life there is great difficulty. Different jurists
have given different classifications. A very general classification is as follows: 1) the
law of persons; 2) the law of property; 3) the law of obligations; 4) the conflict of
laws.
Public Law
Public law is such part of the law as deals with the Constitution and working
of the State, the functioning of its various departments, the relation between the State
and its citizens (including the rights and duties of the State and its citizens inter se),
the working of the administrative departments of the Government, Acts, rules and
regulations relating to public welfare and so on.

5
 The State activities are largely regulated by public law. The public law
determines and regulates the organization and functioning of the State and determines
the relation of the State with its subjects. In public law, provisions are made with a
view to promote social objectives and to protect the collective rather than individual
interests. Public Law may be divided into three parts: (i) Constitutional Law; (ii)
Administrative Law and (iii) Criminal Law.
Constitutional Law:
Hibbert defines Constitutional Law as “body of rules governing the relation
between the sovereign and his subjects and the different parts of the sovereign body”.
According to Dicey, “Constitutional Law includes all rules which directly or
indirectly affect the distinction or exercise of the sovereign power of the State. Hence
it includes all rules which define the members of the sovereign power; all rules which
regulate the relation of such members to each other, or which determine the mode in
which the sovereign power or the members thereof, exercise their authority”.

Administrative Law:
The term ‘Administrative Law’ is technically known as ‘Droit Administratif’
meaning Administrative Law and rules concerning the administration of the executive
departments of a State. Administrative Law deals with the structure, powers and
functions of the organs of administration; the limits of their powers; the methods and
procedures followed by them in exercising their powers and functions; the methods by
which their powers are controlled including the legal remedies available to a person
against them when his rights are infringed by their operation. It covers legislative and
judicial powers of the executive. It deals with day-to-day activities of officials in
relation to the members of the public. It prescribes the minute details of their duties.
In general it deals with matters of procedure and not of substance.
Dicey defines it as that portion of the French Law which determines:
1. the position and liability of State officials;
2. the rights and liabilities of private individuals in their dealings with officials,
and
3. the procedure by which these rights and liabilities are enforced.
The main consequences that follow from the enforcement of Droit
Administratif are:
1. It protects a servant of the State from the control of the ordinary Courts
for any illegal act if done in bona fide obedience to the orders of his
superior and in the discharge of his official duties.

6
 2. Dispute between private person and the State are determined by
administrative Courts and not by ordinary Courts.
3. In case of conflicts of jurisdiction the administrative Courts have a
decisive voice.
4. The relation of the Government and its officials towards private
citizens are regulated by a body of rules which are different from those
which govern the relation of one private person to another.
Criminal Law
Criminal Law is defined as a body of specific and definite rules regarding
human conduct and behaviour which have been promulgated by political authority
which apply uniformly to all members of all classes of people which the rules refer
and are enforced by punishment administered by the State.
The criminal law deals with the laws relating to crimes, the procedure in
Criminal Courts and the dealing with offenders. It also deals with the rules and
regulations concerning prisons and the treatment of prisoners. Crime is a public
wrong. Blackstone defines crime as “an act committed or omitted in violation of a
public law forbidding or commanding it”. In Indian Penal Code ‘offence’ is used in
the place of ‘crime’. According to Section 40 of the Indian Penal Code, the word
‘offence’ is an act punishable by the Code.
Criminal Law defines offences and prescribes punishments for them. Its aim is
the prevention of and punishment for offences. Criminal Law is necessary for the
maintenance of order and peace within the State.
The Criminal Law originated as an agency of social control. It originated in
torts or wrongs to individuals. The origin of Criminal Law is due to the conflicts of
interests in different groups. When wrongs were committed, the society took action
against the person committing it and made certain regulations to prevent the repetition
of the same.
The object of Criminal Law is punishment and compensation. It is not the
purpose of Criminal Law to restore the aggrieved to the former position. Criminal
Law allows compensation in the nature of penalty. The basic element is mens rea or
criminal intent which must be present in an act without which it cannot be punished as
a crime.
Civil Law:

7
 Civil Law is that division of Municipal Law which is occupied with the
exposition and enforcement of civil right. Civil Law is concerned with the rights and
duties of individuals towards one another.
The following are some of the laws which fall within the domain of civil law:
1. Law of Property deals with the rights and interests which may be enjoyed in
respect of property;
2. Law of Torts is concerned with civil wrongs such as negligence, nuisance,
defamation etc.
3. Law of Contracts which determines whether an agreement made by parties is
valid or not;
4. Family Law is that branch of the law which defines the rights, duties and
status of the husband and wife, parent and child and other members of
household;
5. Law of Succession is concerned with the devolution of property on the death
of the original owner and other related events.
In civil cases the parties to the suit mostly are individuals. In Civil Law the
legal action is begun by the private person to establish rights, against another person
or group of persons. The petitioner or plaintiff claims for damages for civil wrongs
against the defendant through a suit in a Civil Court. In civil cases, judgment and
decrees are passed. The main function of civil law is to provide individuals with
remedies which are enforceable in the Courts where they have suffered a wrong which
is recognized by statute or decided cases.
Substantive and Procedural Law
Civil Law may be classified into: (i) Substantive Law; (ii) Procedural Law
Substantive Law
Substantive Law is the law that is concerned with the determination of rights,
duties, liberties and legal powers. It refers to the rules and principles defining the
rights, powers and privileges possessed by person whose status is recognized by law,
and the corresponding duties, liabilities and disabilities to which others are subject
under the law. It includes rules of law, civil or criminal, defining a civil wrong or a
criminal offence. It is also concerned with the ends which the administration of justice
seeks. Definition of civil wrongs and crimes, prescription of remedies and
punishments are examples of Substantive Law. The Substantive Law includes Indian
Contract Act, 1872, Transfer of Property Act, 1882, Hindu, Mohammedan Laws, Law
of Torts, Indian Penal Code, 1860 etc.
Procedural Law

8
 According to Sir John Salmond, the Law of Procedure may be defined as that
branch of the law which governs the process of litigation. It is the law of actions and
includes all legal proceedings whether civil or criminal. Procedural Law deals with
the means and instrument as by which those ends can be achieved. It regulates the
conduct and relations of Courts and litigants in respect of litigation itself. It regulates
the conduct of affairs in the course of judicial proceedings. Jeremy Bentham used the
term ‘Adjective Law’ for the Procedural Law.
The Procedural Law is the law which deals with the mode in which a process
of law may be set in motion; it deals with the procedure and evidence by which
substantive remedies given under the law can be enforced. It deals with the form in
which actions may be brought in Courts of Law, the kinds of such actions and legal
processes, the mode in which each of the processes of law may be set in motion, e.g.
by summons, plaints, complaints, petitions and writs. It deals with matters such as the
jurisdiction of the Courts, the way in which the hearing or the trial is to be conducted,
judgments of the Courts, and the execution of decrees, orders and sentences passed by
the Court. There is a Procedural Law for criminal cases and trials; and we have a
procedure for civil cases. Generally, the Code of Civil Procedure, 1908, the Code of
Criminal Procedure, 1973, the Evidence Act, etc. are procedural laws.
According to Pollock, “The most important branches of law of procedure are
the rules of pleading and the rules of evidence. It is obvious that, if litigation is to be
concluded at all, a Court of Justice must have some kind of rule or usage for bringing
the dispute to one point or some certain points, and for keeping the discussion of
contested matters of fact within reasonable bounds. Rules of pleading are those which
the parties must follow in informing the Court of the question before it for decision,
and in any case of difficulty enabling the Court to define the question or questions.
Rules of evidence are those by which the proof of disputed facts is favoured and
limited. In English practice the sharp distinction between the office of the Court as
Judge of the Law and Jury as Judge of the fact has had a profound effect in shaping
and elaborating both classes of rules”.
Some laws are predominantly procedural and some laws are mainly
substantive. But a Substantive Law also may have Procedural Law in it. Though
Company Law is regarded rather as a Substantive Law, it has much of the procedural
character in it. Thus Company Law contains provisions regarding the mode of

9
formation of companies, the mode of doing business through internal regulations of
companies. The Company Law further provides special procedures for increase,
reduction, reorganization of share capital, alteration of the objects of the company,
rules relating to transfer of shares, issue of share-warrants to bearer, holding of
meetings, passage of resolutions, the issue of notices, rules and modes of surrender,
forfeiture of and lien over shares, and liquidation procedures. So also insolvency law
largely lays down procedural provisions.
The Law of Evidence has a unique place. It is considered as both Substantive
and Procedural Law.
(For details refer the reference Books given in Module I)

Hart’s Concept of Law and the Indian Constitution

It can be a matter of dispute whether legal positivism owes its birth to
Hobbes, Bentham or Austin but most of the legal experts agree that the version of
legal positivism given by H.L.A. Hart is the most appropriate one for the modern
constitutional system. Hart replaced the images of power and violence in
jurisprudential imagination by conceiving law as a system of rules upon rules of
social practices informed by their own criterion of validity and normative obligation.
For Hart, legality is not something which is politically imposed but is evolved through
a growing complex system of different kinds of rules.
Based on the general acceptance of the people, Hart’s legal system comprises
of “primary rules of obligation” and “secondary rules of recognition”, “rules of
adjudication” and “rules of change”. Existing within the framework of certain
minimal rules, this legal system has enough flexibility to adapt itself to the changing
needs. Except for the five truisms, Hart’s legal system like Aristotle’s Politics is
amoral. Principles of morality are no touchstone to test the validity of the rules of
legal system. They can, however, become legal rules after passing through the process
prescribed by the legal system.
The Indian legal system is a fairly developed legal system comprising of both
primary rules of obligation and secondary rules of recognition, adjudication and
change. While the primary rules consist of various statutory laws and recognised
customs, secondary rules are contained in the Constitution of India. The Constitution
of India is based on the philosophy and principles debated and accepted by the people

10
of India during the national movement. Hence, it is “We the People of India” who
have framed the general legal framework of our country and therefore feel under an
obligation to comply by it. The general legal framework is the source of validity or
the “rule of recognition” for other rules and governmental action. While the
Constitution has enough inbuilt flexibility to change itself to the changing needs, there
are certain minimal rules termed as “basic structure” whose sanctity has to be
respected as they comprise the basic framework or identity of our legal system.
As for the “rules of adjudication”, the Indian legal system contains a very
integrated judicial structure with the Supreme Court of India at the top. The Supreme
Court of India and High Courts of the States have the authority to interpret the
Constitution also. In the exercise of this power, while basing their judgments on
general principles, structure and aims of the Constitution, they have moved beyond
the “open texture of law”. A clear example of this is the replacement of “procedure
established by law” under Article 21 by the “due process of law”.
However, it is on the question of morality that the Indian legal system seems
to clearly disagree with Hart’s thinking. Thus, not only morality is explicitly used in
Articles 25 and 26, and implicitly in Article 19(1) (g), even while judging the validity
of particular laws against the Constitution of India the Court takes into account moral
principles. What is important here is not the actual decisions which can be either way,
given the fact that morality is largely subjective, but the consideration of moral
principles as part of constitutional values by the courts. This is clear from the views of
the judiciary on the two issues of restitution of conjugal rights and the right to die.
(Refer for details article by Sheela Rai, Hart’s Concept of Law and Indian
Constitution, (2002) 2 SCC (J) 1).
References:
Books:
1. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapter 10 (Unit I)).
2. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapters 2 & 5).
3. S.K. Mishra, Legal Language, Legal Writing & General English, (1st ed.),
Allahabad Law Agency, (2008), ( Chapter 1 at p. 15-31).
4. S.N. Dhyani, Jurisprudence and Indian Legal Theory,Central Law Agency.
Article:
1. Hart’s Concept of Law and Indian Constitution, (2002) 2 SCC (J) 1.
Webliography:

11
 1. [http://www.articlesbase.com/law-articles/harts-concept-of-law-and-the-india
n constitution-905116.html] [Hart and Indian Constitution]

Module – II Sources of Law

Unit-I
a) Sources of Law
i) Custom
ii) Precedent
iii) Legislation
b) Custom as a Source of Law in India- M.P. Jain
Introduction
The term “sources of law” has been used in different senses by different
writers and different views have been expressed from time to time. Sometimes, the
term is used in the sense of the sovereign or the State from which law derives its force
or validity. Sometimes it is used to denote the causes of law or the matter of which
law is composed. It is also used to point out the origin or the beginning which gave
rise to the stream of law. C.K. Allen uses it in the sense of agencies through which the
rules of conduct acquired the character of law by becoming definite, uniform and
compulsory. Vinogradoff uses it as the process by which the rule of law may be
evolved. According to Prof. Fuller, the problem of “sources” in the literature of
jurisprudence relates to the question: “Where does the judge obtain the rules by which
to decide cases? In this sense, among the sources of law will commonly be listed
statutes, judicial precedents, custom, opinion of experts, morality and equity.”
Moreover, the three main sources of law are recognized in jurisprudence such
as Legislation, Precedent and Custom.
Legislation
Legislation is the making of law by formal and express declaration of rules by
some authority in the body politics, which is recognized by the courts of law as
competent for that purpose. Law which has its origin in legislation is called enacted
law. It is also called statute law, enacted law, written law, enactment, etc. Statute is an
edict of the legislature, an Act of Parliament. Generally, statutes are made to
materialize certain purposes. According to the purposes it is classified. A statute that
declares a new rule is called declaratory statute. Statute which seeks to alter common
law rule is known as remedial statute. Statute which seeks to alter earlier law is
known as amending statute. Statute which is made with a view to consolidate already

12
declared legal rules is known as the consolidating statute. Lastly, a statute imposing
penalty is known as the Penal statute.

There is no uniformity in the structure and arrangements of the various parts

of a statute followed by various countries. However, every statute comprises formal
and material portions. The formal portion includes: (i) The long title, (ii) The
Preamble, (iii) The short title, and (iv) The commencement and extent clause. But the
material portion includes: (i) Definitions (ii) Operative sections, (iii) Procedural
provisions, (iv) Exceptions, (v) Provisions regarding delegated Legislation, and (vi)
Repeal and Amendment clause.
Precedent
Judicial decisions form an important source of law. It was on the raw materials
of customs that the judges fashioned up rules of law. Like sculptors working on
marble, the judges worked on the raw materials of custom and thus made a valuable
contribution to the law of the land.
Precedents establish the law by the recognition and application of new rules by
the courts themselves in the administration of justice. Precedents produce case-laws.
Precedents denote the law made by a declaration and application thereof by the court
in a decision in the course of its administration of justice.
Generally, a judge is bound to decide all the cases taken to him for
adjudication. He cannot leave a case undecided on the ground that there is no law
covering the point. If the question before him is not covered by any existing law, he
will have to decide it “on principle”, that is to say, he has to formulate the legal
principle relevant to the case in accordance therewith. The principle that he
formulated for deciding the case will be law for subsequent like cases. Again,
everything said in a judgment is not reckoned as law. Only the ratio decidendi therein
forms law.
Custom
Law based on custom is known as customary law. Custom is one of the most
fruitful sources of law. Custom is to society what law is to the State. Each is the
expression and realization to the measure of man’s insight and ability of the principles
of right and justice.
Custom is the rule of action voluntarily and uniformly observed by the people.
It embodies a rule of conduct approved and accepted by the community for
generations. There are norms of conduct evolved from actual social life. For getting

13
recognition as law, custom must satisfy the following conditions: (i) Certainty, (ii)
Conformity with statute law, (iii) Consistency with other customs, (iv) Continuity, (v)
Immemorial antiquity, (vi) Observance as of right, (vii) Peaceableness, and (viii)
Reasonableness.
(Students are advised to refer for details the text books and articles given in Module
II).
References:
Books:
1. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapters 8, 9, 10, 11).
2. S. N. Dhyani, Jurisprudence & Indian Legal Theory, Central Law Agency
(Chapters 13, 14).
3. S.K. Mishra, Legal Language, Legal Writing & General English, (1st ed.),
Allahabad Law Agency, (2008), ( Chapter 1 at p. 18-21)
4. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapter 10 p.176-182).
Article:
1. M.P. Jain, Custom as a Source of Law in India, Jaipur Law Journal 1963, p.
96.

“Law as a discipline that keeps growing simultaneously with the developments in

the society has to be learnt continuously and consistently with the times.”

Module – III Fundamentals of Statutory Interpretation

Unit-I

14
 a) What is Statute Law?
b) Structure of Legislation (Education Act 1975 – UK)
c) Rules of Interpretation
Introduction
Statutory interpretation is the process of interpreting and applying legislation.
Some amount of interpretation is always necessary when case involves a statute.
Sometimes the words of a statute have a plain and straightforward meaning. But in
most cases, there is some ambiguity or vagueness in the words of the statute that must
be resolved by the judge. To find the meanings of statutes, judges use various tools
and methods of statutory interpretation, including traditional canons of statutory
interpretation, legislative history, and purpose. In common law jurisdictions, the
judiciary may apply rules of statutory interpretation to legislation enacted by the
legislature or to delegated legislation such as administrative agency regulations.
What is Statute Law?
Statute is defined as law which is passed by the Parliament and the various
state legislatures. This statute is the basis for statutory law. The legislature passes
statutes which are later put into the central code of laws or pertinent state code of
laws. Statute law also includes local ordinances, which is a statute passed by a
government to guard areas not covered by central or state laws.
Statutory law or statute law is a written law (as opposed to oral or customary
law) set down by a legislature (as opposed to regulatory law promulgated by the
executive branch or common law of the judiciary). Statutes are enacted in response to
a perceived need to clarify the functioning of government, improve civil order, to
codify existing law, or for an individual or company to obtain special treatment.
Examples of statutory law comprehend traditional civil law and modern civil code
systems in contrast to common law.
Rules of Interpretation
There are three different rules of interpretation such as: (1) the literal or plain
meaning rule, (2) The Golden Rule, and (3) The Mischief Rule.

Literal Rule or Plain Meaning Rule

15
 If the precise words are plain and unambiguous, in our judgment, we are
bound to construe them in their ordinary sense, even though it does lead, in our view
of the case, to an absurdity or manifest injustice. According to R.W.M. Dias, there is
in the first place, an unfortunate tendency to imagine that the courts are giving effects
to the intention of Parliament on the hypothesis that “the words themselves do, in
such a case, best declare the intention of the law giver.” But it would seem that
whenever the “literal rule” is applied, any reference to the intention of Parliament is
better avoided. Secondly, the “Plain meaning rule” suffers from the inherent
weakness, that is, it is not always easy to say whether a word is “Plain” or not. Thus,
the literal rule in his opinion needs to be understood subject to the following five
explanatory riders: (i) The Statute may itself provide a special meaning for a term,
which is usually to be found in the interpretation section, (ii) Technical words are
given their ordinary technical meaning if the statute has not specified any other, (iii)
Words will not be inserted by implication, (iv) Words undergo shifts in meaning in the
course of time, (v) Finally, and by no means the least, it should always be
remembered that words acquire significance from their context.
Golden Rule
The Golden rule departs from the strictly literal rule inasmuch as according to
the literal rule, the plain meaning has to be adhered to even to the extent of absurdity.
The Golden rule of interpretation adopted in English law is that “In constructing
statutes and all written instruments, the grammatical and ordinary sense of the words
is to be adhered to, unless they would lead to some absurdity or some repugnance or
inconsistency, but no further.” Thus it is, no doubt true that it is not the function of the
Courts to fill in gaps and omissions, but in exceptional cases, the Courts have to
perform this function in accordance with the golden rule of interpretation. Again, to
apply the words literally is to defeat the obvious intention of the legislature and to
produce a wholly unreasonable result. To achieve the obvious intention and to
produce a reasonable result we must do some violence to the words.
Mischief Rule
It is obvious that an enactment without a purpose or social objective will be
nonsense. Thus, the enactment must be read in the light of such assumed purpose, for
then only will it make sense and the Court will also be doing its duty of merging the

16
enactment into the general system of law taking into account its policy. As such it is
the duty of the judge to make such a construction of a statute as shall suppress the
mischief and advance the remedy. In other words, it is a sound rule of interpretation
that a statute should be so constructed as to prevent the mischief and advance the
remedy according to the real intention of the makers.
All the above three rules have resulted from two main approaches. In literal or
plain meaning rule and golden rule it is referential approach and in mischief rule it is
purposive approach. However, ordinarily, the courts must follow literal unless there
are adequate reasons to follow the logical interpretation.
(For details refer the text books given in Module III).
References:
Books:
1. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapter 9 p.195 - 214).
2. P.St.J. Langan, The Interpretation of Statute, (12th ed.), Lexis Nexis, (2004).
3. William N. Eskridge, Jr., Dynamic Statutory Interpretation, Universal Law
Publishing Co. Pvt. Ltd., (2000).
Webliography:
1. [http://www.google.co.in/] [Statute Law]
2. [http://en.wikipedia.org/wiki/Statutory_law] [Statutory Law]
3. [http://books.google.co.in/rulesofinterpretation] [Rules of Interpretation]

17
Module – IV Judgment Analysis and Precedent
Unit-I
a) Case Law in the study of Legal Method
b) Studying Law under the Case Method
c) What is Precedent?
d) Determining the Ratio-decidendi of a Case
e) Understanding Law Reports

Introduction
Cases are the basic tools of the lawyers. In counseling, a lawyer reads cases in
order to determine what the legal position of his client is. He wants to know whether
anybody in a similar position has ever been involved in litigation and if so how did
the court evaluate his conduct? In litigation, a lawyer uses cases to convince the court
that the position favourable to his client has already been accepted by previous
decisions. Thus lawyers sometimes use cases to find out what are the legal rules
which courts will apply and sometimes to influence the making of the rules.
When a case is decided the judge generally writes an opinion announcing the
legal rules on the basis of which he has decided the claim. These legal rules are often
not very clear. They were applied with reference to a particular context and in a
different context they mean the very same thing. These rules are classified and
perfected in subsequent cases. The reasoning of the decision-maker acts as a
precedent to decide subsequent similar claims. Though in theory it is possible to
imagine an identical case, in practice such occurrences are rare. When a case arises
with similar fact situations the counsel again tries to discover a fact or tries to point
out the change of circumstances under which the rule was evolved so as to suggest
that the cases are really quite different. This differentiating process helps to evolve
certain norms which when crystallize take shape of legal rules.
It might appear that a person who wants to know the law, need only to read
cases and accept their reasoning, but the law is always changing. A person who not
only wants to know the law as it is, but also wants to know how it is likely to change
has to critically study the cases, and while going through the reasoning must try to
know to what extent the reasoning was correct in the context in which the claims had
arisen and were decided. Thus, a critical analysis of cases, comparison of the

18
conflicting reasoning of the courts in different fact situation, the reasoning behind the
decisions matters which the students must try to learn from the beginning of his study
of the law.
Examples of Study of Law through Cases
This can be clarified by taking a few hypothetical examples: A and B are
neighbours using adjacent land. A constructs an iron tank on the top of his house for
storing water for the supply in his house. The water from the tank falls on B’s house
and damages the terrace of B’s house. B brings an action against A. Assume for a
moment that there is neither a statutory law nor any necessarily applicable precedent
for deciding this claim, what will the judge do? Will he decide in favour of the
defendant A or in favour of the plaintiff B? In deciding the case the judge will
announce a legal rule. The rule will not be a specific one but will be stated in general
terms. Assuming that the decision has been given in favour of the plaintiff B, the
judge might state that in order to protect the interest of the property owners it is
necessary that any person who keeps anything likely to do mischief on his land is
responsible for the damage caused to anyone who is either injured or whose property
is damaged by that mischievous thing. The decision could have been given in favour
of the defendant too on the ground that a decision in favour of the plaintiff would
retard the construction of the necessary accommodations. This will create hardship to
the community and hence the decision-maker might accept the rule that unless there
was negligence on the part of the defendant, he will not be liable. Assuming that the
defendant was not negligent in the construction of the tank, the decision would have
been in favour of the defendant and the rule would have been that any person who
keeps anything likely to do mischief on his land negligently is responsible for the
damage caused to any other who is either injured or whose property is damaged by
that mischievous thing.
Preparing the Outline of the Case
To prepare the outline of the case note the following points are important. The
whole outline should be as brief as possible.
(i) the name of the case;
(ii) the name of the court which decided the case;
(iii) the date of decision;

19
 (iv) citation of the case;
(v) name of judge or judges;
(vi) judgment
(vii) procedure by which case came before court or tribunal (if original
jurisdiction, so state)
This may also include-
(a) the relief the plaintiff asked in the lower court
(b) what defendant asked the lower court to do
(c) what the lower court was complained of by the party appealing
(viii) the facts before the court for decision. In setting out complicated facts
adopt chronological order;
(ix) the legal question or questions or issues involved;
(x) important arguments of counsel;
(xi) decision;
(xii) reasons for decision and
(xiii) reasons for dissenting opinions, if any.
The Case Method from the Students point of View
The “case method” sometimes called the ‘discussion method’ is a term that has
been used to describe a wide variety of teaching methods, but the one common
element of these methods usually is the use of actual court opinions as the basis of
analysis and discussion in the law classes. One basic purpose of the method is to
engage the student himself in the process of thinking through the meaning and
implication of legal principles as set down in court cases. Instead of the passive role
which the student may often take when his teacher lectures. In the case method the
student must himself actively engage in considering the basis of legal rules, and the
teacher assumes more of the role of protagonist and discussion leader, asking
questions to students, debating points with them, sometimes playing the “devil’s
advocate” to force students to think for themselves.
Use of case method prepares the students in a well mannered way. Further
more, the students’ activity in reviewing his subject matter and preparing and writing
examinations will often be different when the case method is used, from that which it
would be under a lecture method. For one thing, the examinations themselves are

20
usually different. When the case method is used as a teaching technique, examinations
usually take the form of hypothetical fact situations i.e. a hypothetical case, calling
upon the student to decide the case and give his reasons or calling upon the student to
play the advocate’s role and write the best possible arguments for one side or another
of the case.
Each student has his own unique way of studying, which suits him and is most
productive for him. He will adapt his study habits for the case method. This study
method can be divided into five parts: (i) study before class; (ii) classroom note
taking; (iii) review and study after class; (iv) preparing for the examination; and (v)
taking the examination.
What is the Ratio decidendi?
The term ratio decidendi is a Latin phrase which means the “the reason for
deciding”. What exactly does this mean? In simple terms, a ratio is a ruling on a point
of law. However, exactly what point of law has been decided depends on the facts of
the case.
The Importance of Material Facts
As Goodhart (1891–1978) pointed out long ago in the 1930s, the ratio is in
practical terms inseparable from the material facts. Goodhart observed that it “is by
his choice of material facts that the judge creates law”. By this, Goodhart meant that
the court’s decision as to which facts are material or non-material is highly subjective,
yet it is this initial decision which determines a higher or lower level of generality for
the ratio. Goodhart’s reformulation of the concept of the ratio was the subject of
heated debates, particularly in the 1950s.
What are Obiter dicta?
An Obiter dicta is a Latin phrase meaning “things said by the way”. Obiter
dicta are not binding (unlike the ratio), but they may be regarded as persuasive in a
future decision. The weight given to dicta usually depends on the seniority of the
court and the eminence of the judge in question.
Obiter dicta are judicial opinions on points of law which are not directly
relevant to the case in question. They are made when a judge chooses to give some
indication of how he or she would decide a case similar, but not identical, to the case
under consideration. These statements are often meant to clarify the legal principle

21
which the judge proposes to apply in his or her judgement. For this reason, obiter
dicta often take the form of analogies, illustrations, points of contrast or conclusions
based on hypothetical situations. Obiter dicta in one case might be adopted as ratio
decidendi in subsequent cases. This occurs when a situation regarded as hypothetical
by one judge arises in a subsequent case.
Distinguishing between ratio decidendi and obiter dicta is not always simple.
When questioned regarding the difference between ratio decidendi and obiter dicta,
Lord Asquith once remarked that: “The rule is quite simple: If you agree with the
other bloke you say it is part of the ratio; if you don't you say it is obiter dictum, with
the implication that he is a congenial idiot”. Although intended humorously, this
remark has a good measure of truth.
Ratio decidendi and Obiter dicta
1. A ratio decidendi is not an abstract principle, to be applied in a deductive fashion
to a later case. Instead the ratio is a ruling on a point of law in relation to a
specific case.
2. Only the ratio binds an inferior court. Cases themselves do not bind.
3. If the court is not required to make a ruling on a point of law, its decision will not
give rise to a ratio.
4. There is no requirement for each judgement to contain a single ratio and no
more. Multiple ratios are quite normal.
5. Not every statement of law contained in a decision is necessarily ratio or obiter.
A judge may refer to a principle only to express his or her disagreement or for
the sake of completeness. For a statement of law to be a ratio or obiter, the judge
must express his or her explicit agreement with the principle.
6. These are not mere niceties of legal doctrine. Bearing these points in mind will
help you when you come to identifying the ratio in a judgement.
Finding the Ratio decidendi
Identifying the ratio in a judgement is frequently difficult. Judges are under no
obligation to label the different parts of their judgement as ratio or obiter. In most
cases, you need to read the entire judgement to determine the ratio.
Some of the reasons for this include:

22
 1) Length of Judgements: Many judgements are extremely lengthy and are written
in dense, legal language. The ratio may not be expressed in a single sentence or
even a single passage.
2) The Lack of an Explicit Ratio: The extreme example of this is the judgement in
Raffles v Wichelhaus ([1864] 2 H&C 906). This famously consisted of a single
sentence: “There must be judgement for the defendants”.
3) The Existence of Multiple Lines of Argument: Some arguments will be ratio,
others will be obiter and others might be neither.
4) Uncertainties regarding which facts were Material to the Judgement: Judges
sometimes fail to indicate which facts are significant and which are not, making
it difficult to determine the appropriate level of generality at which a ratio should
be stated.
In some instances, a case will establish a legal principle which is refined over
time, being broadened or narrowed as the result of successive judgements.
Ratio in Appellate Decisions
The problems associated with identifying the ratio in the case decided by an
individual judge are multiplied in the case of appellate decisions. Most appellate
courts sit with an uneven number of judges. To discover the ratio of an appellate
decision, you need to determine the ratio in the case of each individual judgement.
The rule is that only the ratios contained in the majority judgements need to be
considered. If a majority of judges agree on the same reasoning, you have identified a
single ratio. Otherwise, there might be multiple ratios, or even none.
Finding the Ratio
There are a number of rules of thumb that you can use to determine the ratio
decidendi. These include:
1. Distinguishing the facts which the court regarded as material from those which
appeared unimportant.
2. Discovering the precedents applied. These will provide an indication of the
court’s approach.
3. In deciding the ratio, restrict your analysis to the opinions of the majority judges.

23
 4. Read subsequent decisions to find how the decision has been interpreted. The
ratio that becomes recognised as a rule of law may not be the ratio that was
apparent in the original judgement.
The last point is one that is sometimes overlooked. In many instances, the ratio
in an individual judgement is less important than the legal principle for which a line
of cases can be cited as authority.
When reading a judgement, consider it at several levels. Apart from reading
the decision for what it actually says, read it also in terms of its subsequent reception.
Assess the arguments of the judges and the advocates in the context both of the case
and the future development of the law. If you are building an argument on the basis of
a particular case, it is often dangerous to look at the case in isolation.
In finding the ratio, it is often useful to consider the way in which judgements
are written. Although there is no standard model, they often follow a broad pattern. In
most cases, the judgement is divided into three sections:
1. the facts agreed or proven
2. the range of applicable legal principles
3. the application of the appropriate principle to the facts.
There are a number of formal tests that have been devised to assist in
discovering the ratio. Two of the best known were developed by United States jurists:
these are the Goodhart’s Test and the Wambaugh’s Test.
Goodhart’s Test
Goodhart proposed these rules for finding the ratio decidendi:
1. The principle of a case is not found in the reasons given in the opinion.
2. The principle is not found in the rule of law set forth in the opinion.
3. The principle is not necessarily found by a consideration of all the
ascertainable facts of the case, and the judge’s decision.
4. The principle of the case is found by taking account (a) of the facts treated by
the judge as material, and (b) his decision as based on them.
5. In finding the principle it is also necessary to establish what facts were held to
be immaterial by the judge, for the principle may depend as much on
exclusion as it does on inclusion.

24
 Goodhart’s Test has gained considerable popularity. However, as stated above,
it is not without its critics.
Wambough’s Test
Eugene Wambaugh (1856–1940) developed an older, but still useful, test.
Wambough’s Test first appeared in a book published in the United States in 1894.
Like Goodhart’s Test, Wambaugh’s rules focus on the question of what facts are
material and which are not. Wambaugh begins with the observations that
 no matter how accurate a legal proposition may be it does not necessarily
form part of the ratio decidendi.
 the proposition is not governed by all the facts, but by the material facts.
Wambaugh recommends that you take the following steps if you think you
have identified a potential ratio in a judgement:
o frame the legal principle that you have identified from a judgement.
o invert a word or phrase which reverses the meaning of the principle.
o ask yourself, if the court had the inverse principle in mind when reaching
its decision, would it have reached the same conclusion?
o if the answer to this question is yes, then your original proposition cannot
be the ratio.
Understanding Law Reports
Introduction
The few legal disputes that cannot be resolved by negotiation between lawyers
or last minute settlement outside the court are determined by the judges in the trial
courts, and in even fewer cases, decided in the appellate courts by the senior judiciary.
The word, ‘few’, must be stressed because a law student surrounded by law reports
may think that the entire Indian or English legal system is composed of nothing but
law reports. This is not the case, only about 4% of all formally commenced disputes
reach a hearing in court.
The decisions of judges are delivered orally in court and at the time of delivery
they are also recorded verbatim by the court stenographer. In addition, official law
reporters, as well as unofficial, are in court taking shorthand notes. Usually, judges in
the civil courts and appellate courts (both criminal and civil) will reflect upon the case

25
before reaching final decision; they therefore hold back (reserve) judgment until a
later date. In criminal cases after the jury has reached a verdict in the trial court, the
judge may sentence immediately or call for reports and sentence at a later date. What
judges say in their judgments is of immense importance, not only for the litigants, but
for the development of the law.
The English legal system is unique in its public insistence that cases must be
decided in keeping with the reasoning process used by judges reaching decisions in
similar previous cases of the same court or higher. This process of deciding in
accordance with past judicial reasoning in similar cases is reasoning in accordance
with the doctrine of precedent.
The concept of keeping to past decisions is also tied to rules concerning the
hierarchy of English and Indian courts. Trial courts are the bottom of the hierarchy
and appeal courts are at the top.
The House of Lords, as the highest court of appeal, is often referred to as the
‘apex’ of the court hierarchy. The further up the hierarchy one goes, the fewer cases
the court deals with and the longer cases will last. Many legal systems throughout the
world have a rule of thumb adherence to the doctrine of precedent. However, few
keep to the concept of binding precedent as rigidly as the English legal system.
Indeed, it has been said that it is more difficult to get rid of an awkward decision in
England than it is anywhere else in the world.
The Relationship between Law Reporting and the Doctrine of Precedent
The only way of being able to keep successfully to the doctrine of binding
precedent is to have a reliable system of law reporting. The competent production of
volumes of reports of past cases is indispensable to the operation of the doctrine.
Reliable law reports have only been available in England since 1865 although there is
a range of law reports going back to 12 th century. However, the accuracy of reports
pre-dating the setting up of the Incorporated Council of Law Reporting in 1865
cannot be guaranteed.
Surprisingly, there are no official, authoritative series of law reports in
England to equate with the Queen’s Printers copy of an Act of Parliament. Her
Majesty’s Stationery Office is responsible for publishing revenue, immigration and

26
social security law cases. However, traditionally, law reports remain in the hands of
private publishers. Today, there are numerous, often competitive, private publishers.
Although there are no official series of law reports, the courts do respect some
reports more than others. A Long established, conventional rule is that a law report, if
it is to be accepted by the relevant court as an authority, must be prepared by and
published under the name of a fully qualified barrister.
Reports existing in the yearbooks cover the period from the late 12th century to
the early 16th century. However, it is not always possible to discover if the report is of
an actual case or a moot (an argument contest between lawyers). This makes them an
unreliable source. Also, the detail that was given and the quality of the reports vary
considerably. Some reports record outcome, but not facts, others record facts and
outcome, but give no reasoning process. Reports also exist in the Nominate (named)
reports dating from the late 15th century to 1865. By the 19th century, a court
authorized reporter was attached to all higher courts and their reports were published
in collected volumes again by name of reporter.
By 1865, there were 16 reporters compiling and publishing authorized reports.
They were amalgamated into Incorporated Council of Law Reporting and the reports
were published in volumes known as the Law Reports. These reports are checked by
the judges of the relevant case prior to publication and a rule of citation has developed
that if a case is reported in a range of publications, only that version printed in the
Law Reports is cited in court. The greater accuracy of modern reporting, and the
vetting by judges, necessitates longer delays before the cases are published. Also, the
Law Reports only cover 7% of the cases in the higher courts in any given year.
Interesting issues are:
1. Who selects which cases to report?
2. How are they selected?
Editors select the cases for inclusion for the publishers. These are highly
trained lawyers, well acquainted with precedent and the likely importance of cases.
During the past 100 years publishers of law reports have been generalists or
specialists. Some law reports are annotated, particularly for the use of practitioners,
others left without annotations, introductions, etc. In addition to reported cases, the
Supreme Court Library contains thousands of files of unreported cases. In 1940, the

27
Lord Chancellor’s Department prepared a report: The Report of the Law Reporting
Committee. The Committee considered that, after editors had made their choices,
‘What remains is less likely to be a treasure house than a rubbish heap in which a
jewel will rarely, if ever, be discovered.
Of course, today, there is a vast range of electronic retrieval systems, which
contain thousands of details of unreported cases. This has caused its own problems
and there was a legitimate concern that courts would be inundated with cases that did
not really contain any new law, but which had been retrieved from electronic sources.
In the case of Roberts Petroleum Ltd. V. Bernard Kenny Ltd. (1983), the House of
Lords took the step of forbidding the citation of unreported cases of the civil division
of the Court of Appeal without special leave. The rule remains, however, that to be an
accepted version that can be quoted in court the report must have been prepared and
published by a barrister.
When law students read law reports they must ask:
(a) Is this report the most authoritative version available?;
(b) Are there fuller versions?;
(c) If unreported, does this case add to the law?
Theoretical Dimensions of the Doctrine of Precedent
Many theorists and practitioners have attempted, over the years, to give
precise definitions of the English doctrine of precedent, unfortunately for law
students, there are no simple shortcuts to understanding the practical everyday
working of the doctrine of precedent.
However, a few theoretical ground rules can be established, which at least
place its operation within a context:
(a) Judges in the higher courts must follow previous decisions of their own court
or that of a higher court if the case was similar;
(b) Since a Practice Statement by the Lord Chancellor in 1966, judges in the
House of Lords have the freedom to decline to follow their own previous
decisions.
Much depends on the definition of similar. How similar must a previous case
be before it becomes a precedent to be followed in a current case? Notice, again, how
everything turns on language and the meaning of words.

28
 The facts of cases usually vary in some way. Law is about life and life rarely
replicates itself.
(a) Must the law be similar now as then?
(b) What happens if there are small differences?
(c) What if there are a range of small differences is the case sufficiently similar?
There are no definitions of similar for the purposes of the doctrine and this is
where the judge can bring subjective influences into the decision making processes. In
addition, how can the reasons for the case can be extracted? Similar cases must be
decided in accordance with the same reasoning process.
The actual doctrine as it has developed refers to keeping to the reasons for
deciding past cases.
Wambaugh, a theorist working in America in the late 19th century, suggests
that one way of ascertaining the reason for the decision (ratio decidendi) is to look for
a general rule of law in the judgments and test whether it is foundational for deciding
the case by translating it into the negative form and seeing if the case would then have
been decided differently.
(For details refer text books given in Module IV)
References:
Books:
1. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapter 10 p.115 - 253).
2. Sharon Hanson, Legal Method, Cavendish Publishing Ltd. (Chapter 4 at p. 59
- 98).
3. A. Lakshminath, Precedent in the Indian Legal System, Eastern Book
Company, 1990 (Chapter 1).
4. Andrew Goodman, How Judges decide Cases, Universal Law Publishing Co.,
(2009).
5. Edgar Bodenheimer, Jurisprudence, Universal Law Publishing Co. Pvt. Ltd.,
2006 (Chapter 18).
Webliography:
1. [http://www.google.co.in/] [Meaning of Precedent]
2. [http://www.rnd.in/gs/?q=Wikipedia] [Precedent]
3. [http://en.wikipedia.org/wiki/Law_report] [Law Report]

29
Module – V Legal and Judicial Process
Unit-I
b) Parliamentary Procedure
c) Concept of Rule of Law
d) Doctrine of Separation of Power
e) Classification of Administrative Action
f) Rule Making Power of Administration (Delegated Legislation)
Unit-II
a) Judicial Activism- Justice M.N. Rao
b) Judicial Review of Administrative Action
c) Social Action Litigation (P.I.L.)
i) Locus Standi
d) Legitimacy of Judicial Activism
e) Competence of Two Judge Benches of Supreme Court to refer Cases to
Larger Benches- Dr. R. Prakash
f) Disciplining Division Benches of Two Judges of the Supreme Court-
T.R. Andhyarjuna
g) Prospective Overruling and Judicial Restrain

Introduction
The first Parliament of India called the Provisional Parliament came into being
with the commencement of the Constitution and the ‘Sovereign, Democratic and
Republic of India’ on 26th January, 1950. Thus the Parliament along with the
Constitution and the Republic have completed more than half-a-century of their life.
When India achieved its independence and the founding fathers sat down to
frame a Constitution, they adopted representative parliamentary democracy as the
model of polity most suited to India’s needs, ethos and experience. Ideally, in any
democratic polity, sovereignty derives its legitimacy. And, the will of the people must
manifest itself through Parliament. Parliament is expected to mirror the hopes and
aspirations of the people. It is in this forum that the ideas, the ideals, the fears and
even the frustrations of the people can find expression. It is for this reason that the
institution of Parliament has been accorded a place of primacy in our democratic
polity.
Parliamentary procedure is intended to facilitate debate and discussion on
problems and perceptions of the people. Parliamentary institutions are ever evolving,

30
ever in the making. Though the basic principles may remain the same, parliamentary
techniques, practices and procedures undergo changes, gradually adapting themselves
to the changing needs of the times. Parliamentary system is said to be based heavily
on past precedents. But, in actual practice, it is extremely difficult to find exact
precedents. Every difficult problem that develops in Parliament seems to be entirely
different and without parallel and therefore one requiring fresh handling. Precedents
can guide and help but not dictate the precise decision or course of action. Every new
situation, the way it develops and the way it is handled, creates a new precedent and
in the long run may give birth to new rules and regulations. Thus, subtle changes in
Parliamentary procedure take place and new practices keep developing almost
constantly.
Concept of Rule of Law
The word rule comes from “regle” and law from “lagu” roughly translating
to “supremacy of law”.1
The basic function of rule of law is to ensure justice, peace and order in
society. It has the two following aspects:
i) Substantive Content: This implies that the content of law should reflect the
basic standards of society, exhibit regularity and consistency and place the
human personality above all else. It should include freedom from
government intervention and right to minimum material means. Thus the
obligation of citizens to obey the law should arise out of its morally
justifiable nature.
ii) Procedural Machinery: This includes legal institutions, procedures and
traditions all of which must pay attention to the judgment of individuals
and the values of society. The legislature, executive, judiciary and the legal
profession have a part to play.2
One definition of the rule of law is:

1
Prof. P. Surianarayanan, Development of Rule of Law (1st ed., Madurai: Madurai Kamraj University,
1983) at 3.
2
N. S. Marsh, International Commission of Jurists - The Rule of Law in a Free Society (Switzerland,
1959) at 191.

31
 “The idea of law based on respect for the supreme value of human
personality and all power in the state being derived and exercised in accordance with
the law”.
Alternatively, it may be understood as:
“The safeguards offered by principles, institutions and procedures, different weight
being attached to them in different parts of the world”.3
The rule of law, comprising the principles of equality and due process, exists
in different forms in each country. It may be contained in the power of judicial review,
the separation of powers, the doctrine of ultra vires (prevents state organs from
proceeding beyond their scope), principles of equity and statutory interpretation.4
Origin
The concept of rule of law was first written by the Greek thinkers. Plato, in his
work “The Laws” writes “In any great state, the law must be the ultimate sovereign,
and not any person whatsoever” exhibiting a clear understanding of rule of law.
Aristotle too, in “Politics” says that “the legislator’s task is to frame a society that
shall make the good life possible”.5
The Magna Carta (1215) contains several clauses that reflect the principles of
rule of law among them clause XXXIX – “No freeman shall be arrested or imprisoned
or deprived of his land or banished or in any way molested save by the lawful
judgment of his peers or by the law of the land”.
In the modern period, John Locke the propounder of one of the Social
Contract Theories laid down several principles of the rule of law in the course of his
work. Firstly, the same laws must exist for “for the favourite at Court, and the
countryman at plough”. Secondly, laws should be designed for the good of the people.
Thirdly, the state cannot raise property taxes without the consent of the people.
Fourthly, the legislative may not transfer law making power to any other body.6

3
Ibid at 196-197.
4
T. R. S. Allan, Constitutional Justice – A Liberal Theory of the Rule of Law (Oxford: Oxford
University Press, 2001) at 1-29.
5
Supra note 1, at 6-8.
6
Ibid at 8-9.

32
Later, in England, restitutionary measures were afforded to anyone affected by the
excessive and unlawful use of authority. It was also laid down that the state had to be
guided by reasonable standards and remain within legally prescribed limits.7

Albert Venn Dicey on the Rule of Law

In discussing the rule of law, the views of Albert Venn Dicey put forth in his
“Introduction to the Law of the Constitution”, are indispensable. His notions have
been debated and criticized by other authors and thinkers. To him the main
components of rule of law are:
i) No one may be punished (either in body or goods) unless he has committed
a breach of law, this law having been established by the ordinary courts in
the ordinary legal manner.
ii) There exists one law for all citizens and no one is above the law of the land.
iii) The General principles laid out in the Constitution. He advocates that such
rights be guaranteed by an unwritten Constitution as in England where
fundamental rights have been set down over time through case law. This
way, these rights cannot be taken away even during an emergency because to
do so would require the destruction of the entire legal system.8
However the supremacy of the Parliament in England which takes away the
power of judicial review from the courts undermines the rule of law.9
The International Commission of Jurists
The International Commission of Jurists have held numerous conferences on
the rule of law attempting to provide a clear and comprehensive definition of rule of
law and better measures of implementation in the context of protecting human rights.
The first congress met in 1955 at Athens and gave effect to the Act of Athens.
This was followed by conferences at Delhi (January 1959), Lagos and Nigeria in
Africa (1961), Rio de Janeiro (1962), Bangkok (1965) and Colombo (1966).10

7
Ibid at 9-13.
8
A. Appadorai, The Substance of Politics (11th ed., Madras: Oxford University Press, 1975) at 279-280.
9
Supra note 4, at 13-15.
10
International Commission of Jurists, The Rule of Law and Human Rights: Principles and Definitions
(Geneva, 1966) at 1-4.

33
 The Commission has played an important role by specifying the basic
requirements of a society under the rule of law and providing insights into the subject
in the context of the legislature, executive, judiciary, the legal profession and even the
layman. Lawyers form different countries have been exhorted to achieve consensus on
the issue and promote the rule of law.

The Rule of Law Concept Map

34
Doctrine of Separation of Power
There are three distinct activities in every government through which the will
of the people are expressed. These are the legislative, executive and judicial functions
of the government. Corresponding to these three activities there are three organs of
the government, namely the legislature, the executive and the judiciary. The
legislative organ of the state makes laws, the executive enforces them and the
judiciary applies them to the specific cases arising out of the breach of law. Each
organ while performing its activities tends to interfere in the sphere of working of
another functionary because a strict demarcation of functions is not possible in their
dealings with the general public. Thus, even when acting in ambit of their own power,
overlapping functions tend to appear amongst these organs. The question which
assumes significance over here is that what should be the relation among these three
organs of the state. Whether there should be complete separation of powers or there
should be co-ordination among them.
Background
It is widely accepted that for a political system to be stable, the holders of
power need to be balanced off against each other. The principle of separation of
powers deals with the mutual relations among the three organs of the government,
namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness
in the functioning of the three organs and hence a strict demarcation of power is the
aim sought to be achieved by this principle. This doctrine signifies the fact that one
person or body of persons should not exercise all the three powers of the government.
Montesquieu, a French scholar, found that concentration of power in one person or a
group of persons results in tyranny. And therefore for decentralization of power to
check arbitrariness, he felt the need for vesting the governmental power in three
different organs, the legislature, the executive, and the judiciary. The principle implies

35
that each organ should be independent of the other and that no organ should perform
functions that belong to the other.
Montesquieu in the following words stated the Doctrine of Separation of
Powers-
There would be an end of everything, were the same man or same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of individuals.
Through his doctrine Montesquieu tried to explain that the union of the
executive and the legislative power would lead to the despotism of the executive, for
it could get whatever laws it wanted to have, whenever it wanted them. Similarly the
union of the legislative power and the judiciary would provide no defence for the
individual against the state. The importance of the doctrine lies in the fact that it seeks
to preserve the human liberty by avoiding concentration of powers in one person or
body of persons.
The same was expounded by the Madison as- “The accumulation of all powers,
legislative, executive and judicial, in the same hands whether of one, a few, or many
and whether hereditary, self-appointed or elective, may justly be pronounced the very
definition of tyranny”.
Therefore, separation of powers doctrine acts as a check against Tyrannical rule.
The purpose underlying the separation doctrine is to diffuse governmental authority
so as to prevent absolutism and guard against arbitrary and tyrannical powers of the
state, and to allocate each function to the institution best suited to discharge it.
Classification of Administrative Action
Administrative action is a comprehensive term and defies exact definition. In
modern times the administrative process as a by-product of intensive form of
government cuts across the traditional classification of governmental powers and
combines into one all the powers which were traditionally exercised by three different
organs of the State. Therefore, there is a general agreement among the writers on
administrative law that any attempt of classifying administrative functions on any
conceptual basis is not only impossible but also futile. Even then a student of
administrative law is compelled to delve into the field of classification because the
present-day law especially relating to judicial review freely employs conceptual

36
classification of administrative action. Thus, speaking generally, an administrative
action can be classified into four categories:
(a) Rule-making action or quasi-legislative action.
(b) Rule-decision action or quasi-judicial action.
(c) Rule-application action or administrative action.
(d) Ministerial action or pure administrative action.
(Refer for details the text book of I.P. Massey, Administrative Law, Eastern Book
Company, (7th ed.), 2008, p. 48-60).
Rule Making Power of Administration (Delegated Legislation)
With the growth of the administrative process in the Twentieth Century,
administrative rule-making or delegated legislation has assumed tremendous
proportions and importance. Today the bulk of the law which governs people comes
not from the legislature but from the chambers of administrators. The fact is that the
direct legislation of Parliament is not complete, unless it is read with the help of rules
and regulations framed thereunder; otherwise by itself it becomes misleading.
In the present day context of free market economy there has been a
tremendous growth of administrative and regulatory forces which has made
outsourcing of law-making power to the administrative authorities a compulsive
necessity. Therefore, legislature limits its functions to merely laying down policy and
guidelines of the law, outsourcing all ancillary law making power to the
administrative authorities to make law relevant to the needs of the people.
The term delegated legislation is difficult to define. However, if defined, in a
simple way, delegated legislation refers to all law-making which takes place outside
the legislature and is generally expressed as rules, regulations, bye-laws, orders,
schemes, directions or notifications, etc. In other words when an instrument of a
legislative nature is made by an authority in exercise of power delegated or conferred
by the legislature it is called subordinate legislation as “that which proceeds from any
authority other than the sovereign power and is, therefore, dependent for its continued
existence and validity on some superior or supreme authority. The term delegated
legislation may be used in two senses: it may mean (i) exercise of law-making power
by the administrative authority delegated to it by the legislature, or (ii) the actual
exercise of law-making power itself in the forms of rules and regulations, etc.

37
Need for Administrative Rule-Making
Delegated legislation is not a new phenomenon. Ever since the statutes came to
be made by Parliament, delegated legislation also came to be made by an authority to
which the power was delegated by Parliament. Going back into history one can find
the Statute of Proclamation, 1539 under which Henry VIII was given extensive
powers to legislate by proclamations. This proves the fact that there was and will
always be the need for delegated legislation. The exigencies of the modern State,
especially social and economic reforms, have given rise to delegated legislation on a
large scale, so much so that a reasonable fear arises among the people that they are
being ruled by the bureaucracy.
The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws;
as against this the total number of statutory orders and rules passed in the same period
was approximately 25,414. Corresponding figures for States and Union Territories are
not available, but the number of rules issued under the delegated powers may well be
astronomical.
The modern trend is that Parliament passes only a skeletal legislation. A
classical example may be the Imports and Exports (Control) Act, 1947 which contains
only eight sections to provide through the rule-making power delegated to them under
legislation and leaves everything to the administrative agencies and delegates the
whole power to the administrative agency to regulate the whole complex mechanism
of imports and exports. The examples may be multiplied. This trend brings us to the
need matrix of the phenomenon of delegated legislation or administrative rule-
making.
The basis of need matrix of administrative rule-making lies in the fact that the
complexities of modern administration are so baffling and intricate, and bristle with
details, urgencies, difficulties and need for flexibility that our massive legislatures
may not get off to a start if they must directly and comprehensively handle legislative
business in all their plenitude, proliferation and particularization. Therefore, the
delegation of some part of legislative power becomes a compulsive necessity for
viability. If the 525-odd parliamentarians are to focus on every minuscule of
legislative detail leaving nothing to subordinate agencies the annual output may be
both unsatisfactory and negligible. Law-making is not a turn key project, readymade

38
in all detail and once this situation is grasped the dynamics of delegation easily
follows:
1. Legislation on ever-widening fronts of a modern Welfare and Service State is
not possible without the technique of delegation. It is trite but correct to say
that even if today Parliament sits all the 365 days in a year and all the 24
hours, it may not give that quantity and quality of law which is required for the
proper functioning of a modern government. Therefore, delegation of rule-
making power is a compulsive necessity. It also gives an advantage to the
executive, in the sense that a Parliament with an onerous legislative time
schedule may feel tempted to pass skeleton legislation with the details to be
provided by the making of rules and regulations.
1. Today, legislation has become highly technical because of the complexities of
a modern government. Therefore, it is convenient for the legislature to confine
itself to policy statements only, as the legislators are sometimes innocent of
legal and technical skills, and leave the law-making sequence to the
administrative agencies.
2. Ordinary legislative process suffers from the limitation of lack of viability and
experimentation. A law passed by Parliament has to be in force till the next
session of Parliament when it can be repealed. Therefore, in situations which
require adjustments frequently and experimentation, administrative rule-
making is the only answer.
3. In situations where crisis legislation is needed to meet emergent situations,
administrative rule-making is a necessity because the ordinary law-making
process is overburdened with constitutional and administrative technicalities
and involves delay.
4. In some situations it is necessary that the law must not be known to anybody
till it comes into operation. For example, in case of imposition of restrictions
on private ownership, it is necessary that the law must be kept secret till it
comes into immediate operation, otherwise people could arrange their property
rights in such manner as to defeat the purpose of the law. This secrecy can be
achieved only through administrative action because the ordinary legislative
process is always very open.

39
 5. Where government action involves discretion, i.e. expansion of public utility
services, administrative rule-making is the only valid proposition.
6. Today, there is a growing emergence of the idea of direct participation in the
structurisation of law by those who are supposed to be governed by it because
indirect participation through their elected representatives more often proves a
myth. Therefore, administrative rule-making is a more convenient and
effective way and provides for this participation.
One may go on multiplying the factors responsible for the growth of
administrative rule-making, yet the list may not be exhaustive. It will suffice to say
that the technique of administrative rule-making is now regarded as useful, inevitable
and indispensable.
However, one must not lose sight of the fact that though the technique of
administrative rule-making is useful and inevitable yet constitutional legitimation of
unlimited power of delegation to the executive by the legislature may, on occasion, be
subversive of responsible government and erosive of democratic order. At times the
legislature passes only skeletal laws without laying down even a policy in clear terms,
and leaves everything else to the discretion of the administrative agency. Therefore,
the administration armed with the law-making power threatens to overwhelm the little
man by trampling upon his liberty and property. The technocracy and the bureaucracy
which draft subordinate legislation are perhaps well-meaning and well-informed but
insulated from parliamentary audit and isolated from popular pressure and may,
therefore, make law which is socially less communicable, acceptable and effective.
Furthermore, if law-making is taken over by the government it may make its
administration by barrel of secretariat pen. Therefore, if the technique of
administrative rule-making is to serve its laudable task, the norms of the jurisprudence
of delegation of legislative power must be dutifully observed. These norms include a
clear statement of policy, procedural safeguards and control mechanisms.
(Refer for detail text book of I.P. Massey, Administrative Law, Eastern Book
Company, (7th ed.), 2008, p. 84-97).
Judicial Activism
The term ‘Judicial’ is an adjective from French word ‘Judex’ meaning a Judge, it
means or pertaining or appropriate to the administration of justice or courts of justice

40
or a Judge thereof or in the proceedings therein”. The right to pronounce a definitive
judgment is considered the sine quo non of a Court. The word “Court of Justice”
denotes a Judge who is judge empowered by law to act judicially as a body, when
such judge or body of judges is acting judicially. The word “Judiciary” again is
explained to mean the Judges of a State Collectively.
The term judicial activism is explained in Black’s law Dictionary as,
“Judicial philosophy which motives judges to depart from strict adherence to
judicial precedent in favour of progressive and new social policies which are not
always consistent with the restraint expected of appellate Judges. It is commonly
marked by decisions calling for social engineering and occasionally these decisions
represent intrusions in the legislative and executive matters.”
Though it is the legislature, which makes the Law, the Judgments rendered
by the Supreme Court and High Courts give the Law a concrete shape, which the
people understand better as the Law. Hence, there is importance of the decision
making process. Justice V. R. Krishana Iyer, the greatest activist Judge, India has so
far seen, feels, judicial activism is a device to accomplish the cherished goal of
social justice. He said,
“After all, social justice is achieved not by lawlessness
process, but legally tuned affirmative action, activist
justicing and benign interpretation within the parameters of
Corpus Juris”.
Judicial Review of Administrative Action
Basic purpose of judicial review is to enforce constitutionalism and to guard
against majoritarianism. Thus an important aspect of public law review is not only the
enforcement of private rights but to keep the administrative and quasi-administrative
machinery within proper control. This aspect of public law review was rightly stressed
by the Supreme Court in S.L. Kapoor v. Jagmohan.11 In this case two non-official
members of the New Delhi Municipal Committee had filed a petition before the
Supreme Court under Article 136 against the governmental action of superseding the
Municipal Committee without complying with the principles of natural justice. During
the pendency of the case, the term of office of the petitioner expired. It was argued that
11
(1980) 4 SCC 382.

41
since the petition has become infructuous, the Court has no power to continue with the
appeal. Rejecting the contention the Apex Court held that since the petition involves
an issue of public importance, the Court can still decide the issue even in the face of
loss of standing of the petitioners.
It is no denying the fact that today due to the intensive form of government,
there is a tremendous increase in the functions of the administration as a facilitator,
regulator and provider. Therefore, if these new-found powers are properly exercised
these may lead to a real socio-economic growth and if abused these may lead to a
totalitarian State. Against this backdrop the prime function of judicial review is to
check the abuse of administrative powers and to enforce accountability on the
operators of these powers.
The power of public law review is exercised by the Supreme Court and High
Courts through writs of certiorari, prohibition, mandamus, quo-warranto and habeas
corpus and also through the exercise of power under Articles 136 and 227 of the
Constitution.
(For more details refer the text book of I.P. Massey, Administrative Law, Eastern Book
Company, (7th ed.), 2008, p. 403- 422)
Social Action Litigation (PIL)
Public Interest Litigation (PIL) has been an invaluable innovative judicial
remedy. It has translated the rhetoric of fundamental rights into living reality for at
least some segments of our exploited and downtrodden humanity. Under trial
prisoners languishing in jails for inordinately long periods, inmates of asylums and
care-homes living in sub-human conditions, children working in hazardous
occupations and similar disadvantaged sections.
Public Interest Litigation is the name given to the right of any member of the
public, having sufficient interest to maintain an action for judicial redress of public
injury arising from breach of public duty or violation of some provision of the
constitution or the law and seek enforcement of such public duty and observance of
such constitutional or legal provisions. It is the essence of this rule of law, which
constitutes the core of our constitution, that exercise of the power by the State,
whether it be the legislature or the executive or any other authority, should be within
the constitutional limitations and if any practice is adopted by any one of them which

42
is in flagrant and systematic violation of its constitutional limitations, the petitioner as
a member of public would have sufficient interest to challenge such practice by filing
a writ petition and it would be constitutional duty of the court to entertain the writ
petition and it would be constitutional duty of the court to entertain the writ petition
and adjudicate upon the validity of such practice. Public Interest Litigation is,
therefore, the new device by which public participation in judicial review of
administrative action is being assured. It is also the new strategy through which access
to justice is being assured even to those who for any reason whatsoever not able to
approach the court to ventilate their grievances. Justice P.N. Bhagwati thought that it
was “essentially a co-operative or collaborative effort on the part of the petitioner, the
State or the public authority and the court to secure observance of constitutional or
legal rights, benefits and privileges conferred upon the vulnerable sections of the
community and to reach social justice to them”.
Legitimacy of Judicial Activism
It is significant to note that Supreme Court of India is most powerful apex
court in the world. Unlike the Supreme Court or the House of Lords in England or the
highest courts in Canada or Autralia, the Supreme Court of India can review even a
constitutional amendment and strike it down if it undermines the basic structure of the
Constitution. It can decide the legality of the action of the President of India under
article 356 of the Constitution whereby a state government dismissed. Through public
interest litigation, the Court has granted access to persons inspired by public interest
to invite judicial intervention against abuse of power or misuse or inaction of the
government. Not only was the requirements of locus standi liberalized to facilitate
access but the concept of justiciability was widened to include within judicial purview
actions or inactions that were not considered to be capable of resolution through
judicial process according to traditional notions of justiciability.
Judicial activism is not an aberration. It is an essential aspect of the dynamics
of a constitutional court. It is a counter-majoritarian check on democracy. Judicial
activism, however, does not mean governance by the judiciary. It also must function
within the limits of the judicial process. Within those limits, it performs the function
of legitimizing or, more rarely, stigmatizing the actions of the other organs of
government.

43
 The judiciary is the weakest organ of the State. It becomes strong only when
people repose faith in it. Such faith of the people constitutes the legitimacy of the
Court and of judicial activism. Courts have to continuously strive to sustain their
legitimacy. They do not have to bow to public pressure, rather they have to stand firm
against any pressure. What sustains legitimacy of judicial activism is not its
submission to populism but its capacity to withstand such pressure without sacrificing
impartiality and objectivity. Courts must not only be fair, they must appear to be fair.
Such inarticulate and diffused consensus about the impartiality and integrity of the
judiciary is the source of the Court’s legitimacy.
How is such legitimacy sustained? The myth created by the black letter law
tradition that judges do not make law but merely finds it or interprets it sought to
immunize judges from responsibility for their decisions. Mythologization of the
judges also contributed to the sustenance of legitimacy. Those devices for sustaining
legitimacy, however, presupposed the negative and technocratic role of the judges.
They are of no help in sustaining the legitimacy of judicial activism. We have to
explore the myth that judges do not make law. Similarly, we have to recognize that a
constitutional court is political institution. It is political because it determines the
limits of the powers of other organs of government. Being political need not mean
being partisan or unprincipled.
We also have to understand that judges are human beings as fallible as other
human beings are. Judges are bound to have their predilections and those
predilections are bound to influence their judgments. The courts themselves have
imposed restrains on their powers in order to minimize the chances of vagaries arising
out of subjective lapses or prejudices of the judges. The courts are bound to follow
precedents, they are bound to follow the decisions of the higher courts, and they are
bound to follow certain rules of interpretation. Further, decisions of courts are
reasoned and are often subject to appeal or review. These restrictions ensure that the
lapses would be minimal. Criticism of the judgments of the courts would further act
as a corrective to objectionable judgments. Through such processes the courts sustain
their legitimacy.
Competence of Two Judge Benches of Supreme Court to refer Cases to
Larger Benches

44
 The Supreme Court of United States of America consists of nine judges and
every Judge of that court is a party to each of its judgment. But the same is not the
case in our Supreme Court. The Supreme Court of India consists of twenty-six Judges
including the Chief Justice and sits in Division Courts comprising of two Judges,
three Judges, five Judges, or more, and therefore all the Judges do not become party to
each of the judgment pronounced by the Supreme Court of India. In view of the fact
that our Supreme Court sits in divisions, a practice developed to refer a case to a
larger Bench whenever a smaller Bench doubted the correctness of the law declared in
the earlier judgement. Further references may go to still larger Benches until the law
is settled by a larger Bench. For example, it can be seen as to how Keshavananda
Bharati case12 reached a Bench of thirteen Hon’ble Judges. In Shakari Prasad Singh
Deo v. Union of India13 a five Judge Constitution Bench held that an amendment of
the Constitution made under Article 368 is “not law” within the meaning of Article
13(2) of the Constitution. In Sajjan Singh v. State of Rajasthan14 another five-Judge
Bench also took the same view. These two decisions were doubted and the correctness
of these decisions was considered by an eleven-Judge Bench in Golak Nath v. State of
Punjab15 wherein by a majority of 6:5, the eleven-Judge Bench prospectively
overruled Shankari Prasad and Sajjan singh decisions and it was held that an
amendment of the Constitution is “law” within the meaning of Article 13(2) of the
Constitution. After this decision, Articles 13 and 368 were amended so as to exclude
the amendments of the Constitution from the purview of Article 13(2). The
correctness of Golak Nath case and the validity of the Constitution (Twenty-fourth
Amendment) Act, 1971 were considered by a larger Bench of thirteen Judges in
Keshavanand Bharati v. State of Kearala wherein Golak Nath case was overruled and
the doctrine of basic structure was propounded.
(For further details refer articles given in Module V).
Disciplining Division Benches of Two Judges of the Supreme Court
In two rulings, two Constitution Benches of five judges presided over by
Bharucha, C.J. in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangh16 and
12
Keshavanada Bharati v. State of Kerala, (1973) 4 SCC 225.
13
AIR 1951 SC 458.
14
AIR 1965 SC 845.
15
AIR 1967 SC 1643.
16
(2001) 4 SCC 448.

45
Pradip Chandra Parija v. Pramod Chandra Patnaik 17 have ruled that it was improper
for a Division Bench of two judges to refer the correctness of a judgement of a five-
Judge Bench for reconsideration by another Bench of five Judges as in Bharat
Petroleum case or for a Bench of two Judges to refer the correctness of a decision of
three Judges to a large Bench of five Judges as in Parija case.
According to these rulings, “judicial discipline and propriety” obliged a Bench
of two Judges to follow the judgement of larger Benches. However, it was ruled, that
if the two Judges concluded that the judgement of a larger Bench
“is so very incorrect that in on circumstances can it be followed, the
proper course for it to adopt is to refer the matter before it to a Bench
of three learned Judges setting out, as has been done here, the reasons
why it could not agree with the earlier judgement. If, then, the Bench
of three learned Judges is incorrect, reference to a Bench of five
learned Judges is justified.”18
(For more details refer to article given in Module V).
Prospective Overruling and Judicial Restrain
The doctrine of prospective overruling originated from the American judicial
system. It was for the first time laid down by Cardozo J. and learned Hand J. The
doctrine aims at overruling a precedent without causing a retrospective effect. The
concept of prospective overruling is now an integral part of legal systems world over.
The basic meaning of prospective overruling is to construe an earlier decision in a
way so as to suit the present day needs, but in such a way that it does not create a
binding effect upon the parties to the original case or other parties bound by the
precedent. The use of this doctrine overrules an earlier laid down precedent with
effect limited to future cases and all the events that occurred before it are bound by
the old precedent itself. In simpler terms it means that the court is laying down a new
law for the future.
There are two aspects to the doctrine of prospective overruling. The first aspect
was laid down by Lord Blackstone, according to this theory Judges don’t make the
law; their job is to define the law. They should however follow the doctrine of Stare

17
(20020 1 SCC 1.
18
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1.

46
Decisis. The doctrine of Stare Decisis means “to stand by precedent and not to disturb
the settled point of law”; the logic behind this doctrine is that people should not get
confused as to what is legal and what is illegal. The advocates should be able to
clarify to their clients the exact law and not get confused themselves. So accordingly
it connotes that it should be up to the judges to decide which decision should be
affected retrospectively and which one should be adapted prospectively. This theory is
in total conflict with the Doctrine of Prospective Overruling.
The second aspect was propounded by Cardozo J. and learned Hand J. who
were strongly in support of the Doctrine of Prospective Overruling. According to
them if this doctrine is not given effect it will wash away the whole dynamic nature of
law, it will be against the concept of judicial activism. Cardozo J. was of the view that
the law should keep up with the changes occurring in the society, the law has to be
dynamic and not static. If in a new and changed society, the citizens are bound by an
old law it will lead to grave injustice. The Citizens lives are bound by the law of land
should be given laws according to changed needs. Therefore the doctrine of
Prospective Overruling is an important tool in the hand of judiciary to give fair and
timely justice to its citizens.
The concept of the Doctrine of Prospective Overruling has now been accepted
in its full form in India. This doctrine was for the first time applied in India Golak
Nath v. State of Punjab19. The court overruled the decisions laid down in Sajjan Singh
v. State of Rajasthan20 and Shakari Prasad v. Union of India. The honorable Judges of
Supreme Court of India laid down its view on this doctrine in a very substantive way,
by saying “The doctrine of prospective overruling is a modern suitable for a fast
moving society. It does not do away with the doctrine of stare decisis but confines it
to past transactions. While in strict theory it may be said that doctrine involves the
making of law, what the court really does is to declare the law but refuse to give
retroactivity to it. It is really a pragmatic solution reconciling the two conflicting
doctrines, namely, that a court finds the law and that it does make the law but restricts
its operation to the future. It enables the court to bring about a smooth transaction by

19
AIR 1967 SC 1643.
20
AIR 1965 SC 845.

47
correcting its errors without disturbing the impact of those errors on past transactions.
By the application of this doctrine the past may be preserved and the future protected.
However the Supreme Court gave certain restrictions to the usage of the
Doctrine of Prospective Overruling. The court said that this doctrine can only be used
by the apex court and it would be applicable only to the laws and cases relating to the
Constitution of India. It was further added that this doctrine is no where against the
Constitution and Articles 32, 141 and 142 of the Constitution of India. By not giving
retrospective effect to the above mentioned case the court certainly saved the parties
bound by it from a lot of chaos and injustice. It was also stated that giving or not
giving a retrospective effect to the overruled precedent is to be left on the learned
Judges depending on the facts of the case.
However now this situation has changed and this doctrine are applicable to
other statutes also, which again is a very dynamic step taken by the judiciary in order
to meet the ends of justice.
(For details refer the case Golak Nath v. State of Punjab, AIR 1967 SC 1643).
References:
Books:
1. S.P. Sathe, Administrative Law, (7th ed.), Lexis Nexis, 2007 (Chapter 2, 4)
2. Subhash C. Kashyap, Parliamentary Procedure, Universal Law Publishing Co.
Pvt. Ltd. Vol. 1, 2000, ( at Chapter 15, p. 817).
3. Noor Mohammad Bilal, Dyanamism of Judicial Control and Administrative
Adjudication, Deep & Deep Publication, (2004).
4. S.P. Sathe, Judicial Activism in India, Oxford University Press, 2008 (Chapter
VII).
5. I.P. Massey, Administrative Law, Eastern Book Company, (7 th ed.), 2008,
(Chapters 2, 3 at p. 48-60, 4 at p.84 – 97, 8 at p. 403, 9).
6. M.P. Jain, Indian Constitutional Law, (5th ed.), Wadhawa, Nagpur, (2004).
Articles:
1. M.N. Rao, Judicial Activism, 1997 SCC Vol. 8 at p. 1.
2. R. Prakash, Competence of Two Judges Benches to refer Cases to Larger
Benches, 2004 (6) SCC (J), 75.
3. T.R. Andhyarjuna, Disciplining Division Benches of Two Judges of the
Supreme Court, 2004 (6) SCC (J) 85.
Cases:
1. S.L. Kapoor v. Jagmohan, (1980) 4 SCC 382.
2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
3. Sheela Barse v. Union of India, AIR 1988 SC 2211.
4. State of Punjab v. G.S. Gill, (1997) 6 SCC 129.
5. State of Punjab v. Tehal Sighn, (2002) 2 SCC 7.
6. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

48
Webliography:
1. [http://www.goforthelaw.com/articles/fromlawstu/article3.htm]
[The Rule of Law ]
2. [http://nigerianlawguru.com/articles/jurisprudence/JUDICIAL
%20ACTIVISM.pdf]
[Judicial Activism]
3. [http://www.naavi.org/praveen_dalal/judicial_review_aug06_04.htm]
[Judicial Review]
4. [http://www.itatonline.org/articles_new/?p=50] [Judicial Activism]
Module – VI Legal Systems in the World
Unit-I
a) The Court Structure of England and Wales
b) History of Common Law
c) Legal System in USA
d) Legal System in France
e) Canadian Legal System
f) Australian Legal/Judicial System
g) Russian Legal System

Introduction
The diversity of laws in the modern world is a fact. Each political society in
the world has its own legal system, and it often happens that several laws co-exist
within a legal system. In a federal state, in addition to a federal law, there may be laws
of states, provinces or districts. There are moreover laws of communities that have no
political organization at all, such as Canon Law, Muslim Law, Hindu Law and Jewish
Law. There is as well international law which relates to international commerce.
The diversity of law poses a problem since the laws of the world are expressed
in many different languages and forms and since they have evolved in societies where
the social organization, beliefs and social manners vary. As there are classifications in
different sciences, the laws can also be reduced to a limited number of families.
We can divide the legal system and laws into four categories namely, Romano-
Germanic Legal System (Civil Law System), the Common Law Legal System,
Muslim Legal System and the Socialist Legal System.
The Court Structure of England and Wales
First to understand the court structure of England and Wales we must
understand the English Law and England’s and Wales Legal System. The expression
English Law means the Law governing England and Wales. The sources of English

49
Law are Common Law, Equity, Legislation and since 1973, European Economic
Committee (EEC) Legislation.
Common Law
The Common Law comes from customs and habits applied by English courts.
Local customs which varied from one locality to another were the sources of decision
by local courts.
After the Norman Conquest in 1066, these customs were brought into a
uniform system. It took the name of Common Law because it was common to all men
within the King’s jurisdiction.
To start a legal process, the claimants had to be granted a writ by the King.
These writs defined rights and obligations which were enforceable only in the King’s
courts. This system contributes to the limitation of the development of the Common
Law. This led to the development of Equity.
Besides, the doctrine of precedent is developed. The decision of the court is
binding on the parties to the action. Further, the principle of the decision may become
binding on other parties in future cases. However, not all of a judgment is binding,
only the “ratio decidendi” is.
Equity
In many cases, claimants had no remedy at Common Law because they were
unable to find a registered writ drawn to suit their claims. So, the unsatisfied people
seized the King, “the fountain of justice”, by a petition. By the end of the fifteenth
century, the Chancellor would deal with petitions in his name. That is why the court of
Chancery was created.
The cases were solved according to the conscience of the King or the
Chancellor. Where decision given to the Common Law remedy was not appropriate,
the Court of Chancery might give relief to its petitioners according to equity and good
conscience.
Conflicts and competition existed between the Common Law Courts and the
Court of Chancery. Equity is consequently subjected of Chancellor’s appreciation.
Equity predominates over the Common Law. As a result, Equity was submitted to the
doctrine of precedent. So, it is necessary to differentiate Common Law from Equity.

50
 For example, at Common Law, the normal remedy was damages. However in
Equity, remedies are discretionary, according to the conduct of the parties. So,
maxims of equity give general guidelines to determine what should be regarded as
equitable or inequitable.
Statute Law
Legislation may be expressed in an act of Parliament or in a delegated
legislation.
Parliament is composed of the Queen, the House of Lords and the House of
Commons. Parliament is sovereign. A bill must pass through both houses, but by the
Parliamentary Act 1911, the Royal assent may be given to a bill which has not been
passed by the House of Lords.
Parliament may delegate the legislative power to any subordinate body. The
rules of Law can be established without time consuming procedures attending the
passage of a bill through Parliament. Delegated legislation must be “intra vires”, so
within the powers conferred by Parliament, or else it would be void.
European Economic Community
There are conflicts between Community Legislation and National Legislation:
Community Legislation prevails on National Legislation.
The Court Structure in England and Wales
English judicial order is composed of the Supreme Court and lower courts.
The Supreme Court of Judicature is made up of three different courts:
1) The High Court,
2) The Crown Court,
3) The Court of Appeal.
1) The High Court of Justice is composed of three divisions:
a) The Queen’s Bench Division:
The Queen’s Bench Division deals predominantly with civil action in contracts
and torts.
b) The Chancery division:
The Chancery Division is concerned with, inter alia: trusts, mortgages, issues
concerning Company law and intellectual property.
c) The Family division:

51
 The Family division principally hears cases of divorce, adoption, as well as
matters affecting children.
2) Crown Court:
It has jurisdiction over serious criminal offences.
3) Court of Appeal
The Court of appeal is an appellate jurisdiction within the Supreme Court of
Judicature.
The House of Lords
The appeal against decisions of the Court of Appeal is brought before the
appellate committee of the House of Lords. The appeal is not a right but it must be
granted. The House of Lords is the Supreme Court, also in civil matters, for England
and the rest of the United Kingdom.
Privy Council
It gives a ruling about appeals made against the decisions of the Supreme
Courts of the United Kingdom overseas territories or countries which are members of
the commonwealth and have accepted the jurisdiction of the Privy Council (Jamaica,
Gibraltar etc.).
Lower Courts
In civil matters, the Lower Courts are the County Courts which have an
important role in the administration of civil justice in England.
The High Court of Justice hears claims of less than 15000 pounds. Claims for
less than 500 pounds are normally subject to a procedure known as the small claims
track which is a swifter and cheaper means of resolving small disputes.
In criminal matters, summary offences are judged by magistrates, who are
laymen or women known as justice of the peace. They are not remunerated. However,
in London and other cities, justices of the peace have now been replaced by
professional full-time judges. The Judges are appointed by the Queen, on the
suggestion of the Lord Chancellor; they must have seven years practice as a Barrister
or Solicitor.
Legal System in USA
The US legal system is based on federal law, augmented by laws enacted by
state legislatures and local laws passed by counties and cities. Most rights and

52
freedoms enjoyed by Americans are enshrined in the first ten amendments of the US
Constitution and popularly known as the ‘Bill of Rights’.
American law and the US Constitution apply to everyone in the US,
irrespective of citizenship or immigration status, and even illegal immigrants have
most of the same basic legal rights as US citizens. Under the US Constitution, each
state has the power to establish its own system of criminal and civil laws, resulting in
50 different state legal systems, each supported by its own laws, prisons, police
forces, and county and city courts. There is a wide variation in state and local laws,
making life difficult for people moving between states.
The US Judiciary
The US judiciary is independent of the government and consists of the
Supreme Court, the US Court of Appeals and the US District Courts. The Supreme
Court, the highest court in the land, consists of nine judges who are appointed for life
by the President. Its decisions are final and legally binding on all parties. In deciding
cases, the Supreme Court reviews the activities of state and federal governments and
decides whether laws are constitutional. The Supreme Court has nullified laws passed
by Congress and even declared the actions of US Presidents unconstitutional.
Momentous judgements in recent years have involved the Watergate scandal, racial
segregation, abortion and capital punishment.
However, when appointing a Supreme Court judge, the President’s selection is
based on a candidate’s political and other views, which must usually correspond with
his own. The Supreme Court was for many years made up of members with a liberal
or reformist outlook, although this trend has been reversed in recent years with the
appointment of conservative judges by successive Republican Presidents.
The Federal Courts
A separate system of federal courts operates alongside state courts and deals
with cases arising under the US Constitution or any law or treaty. Federal courts also
hear disputes involving state governments or between citizens resident in different
states. Cases falling within federal jurisdiction are heard before a federal district
judge. Appeals can be made to the Circuit Court of Appeals and in certain cases to the
US Supreme Court.
The Civil and Criminal Courts

53
 There is a clear separation and distinction between civil courts, which settle
disputes between people (such as property division after a divorce), and criminal
courts that prosecute those who break the law. Crimes are categorized as minor
offences (‘misdemeanours’) or serious violations of the law (‘felonies’).
Misdemeanours include offences such as dropping litter, illegal parking or jay-
walking, and are usually dealt with by a fine without a court appearance. Felonies,
which include robbery and drug dealing, are tried in a court of law and those found
guilty are generally sentenced to prison. In many counties and cities, there are often
eccentric local laws (usually relating to misdemeanours rather than felonies).
People who commit misdemeanours may be issued a summons (unsuspecting
foreigners who violate local by-laws may be let off with a warning), while anyone
committing a felony is arrested. An arrest almost always involves being ‘frisked’ for
concealed weapons, handcuffed and read your rights. You must be advised of your
constitutional rights when arrested. These include the right to remain silent, the right
to have a lawyer present during questioning, and the right to have a free court-
appointed lawyer if you cannot afford one. You will be asked if you wish to waive
your rights. This is not recommended, as any statement you make can then be used
against you in a court of law.
Legal System in France
The French Legal and Judicial system bears the imprint of Roman law and is
very much different from the British and American Systems. The three important
features of Roman judicial system i.e. symmetry, unity and authority are found in the
whole edifice of French law and justice.
The main features of the legal and judicial system in France are:
1. Codified Law: The first Penal Code and Criminal Procedure Code were
prepared before the eighteenth century ended whereas the Civil Code and
Civil Procedure Code were formulated during the reign of Napoleon in the
early nineteenth century. Both kinds of Codes and Procedures are responsibly
complete and clear. French Codes are well balanced, absolutely systematic and
easily accessible. A Judge need not seek help from precedents. He is free to
give his Judgement.

54
2. No Elected Judges: The Judges in France are not purely elected. Under the
1958 Constitution of France a Conseil Superieur dela Majistrature (High
Council of Judges) has been appointed to make proposals for appointment of
Judges of the Court of Cassation and Presiding Judges of the Courts of Appeal
and to give its opinion of the proposals of the Minister of Justice relative to
appointments of other Judges. The High Council of Judges acts as the
disciplinary council of judges.
3. Dual Hierarchy: There are two separate sets of Courts in France. They are
ordinary courts dealing with common law for the trial of civil and criminal
offences. Besides the ordinary courts, there are administrative courts which are
concerned with the acts of the administrative authorities and the grievances
that the citizens may have against these authorities.
4. Court of Conflict: With two sets of Courts, ordinary and administrative, it
becomes necessary to have some agency for settling disputes arising out of the
final jurisdiction of the Court of Cassation and the Council of State. For this
purpose, a Court of conflict was setup in 1872. This Court is composed of the
Minister of Justice as ex-officio President, three judges of the Court of
Cassation, three members of the Council of State, and two other persons,
selected by the foregoing. This institution is special to France only and there is
no such institution elsewhere in the world.
5. Absence of Judicial Review: Courts in France have no power to declare laws
passed by the Parliament as unconstitutional. In France, Courts derive their
powers from the Parliament. The French citizen has no right to approach a
court to declare a law as unconstitutional. However, the constitutionality of a
law can be got determined, before its promulgation from the Constitutional
Council by the President of the Republic, the Prime Minister or the President
of either chamber of the Parliament. Once a law has been promulgated, its
constitutionality cannot be questioned.
6. The Institution of Parquet: To each Court in France there is attached a
parquet by a Procureur or State Attorney and a member of assistants to help
him. The parquet does the same job as is done by public prosecutors in India.
It conducts prosecutions. The members of the parquet are all irremovable and

55
 they move upwards in their cadre. Though their main function is on the
criminal side, yet they also act in civil cases which are of interest to the State,
by submitting the point of view of the State on the law, and of the public
authorities and of people who are not capable of prosecuting their own case.
The institution of parquet is a very unique feature of the French legal and
judicial system.
7. Independence of Judiciary: The President has been made the guarantor of
the independence of judiciary. Judges may not be removed from office. The
Judges of the superior courts i.e. Court of Cassation and the Courts of Appeals
are appointed on the proposals made by the High Council of Judges which
consists of the President of the Republic, the Minister of Justice and nine other
members. Thus the appointment of the superior judges is outside the purview
of the executive. The judges at the lower level are appointed through a
competitive examination. The fresh appointees spend four years in the
National Centre of Judicial Studies to get further training in the legal and
judicial system. The Judges are free to deliver their judgements uninfluenced
by any kind of pressure. The independence of judiciary is well recognized in
France.
8. Habeas Corpus: Under Article 66 of the 1958 Constitution of France, no one
may be arbitrarily arrested and that the judiciary acting as guardian of
individual liberty, shall ensure that the individual’s freedom is protected in
accordance with law. This provision of Article 66 has been made for the first
time and it marks a unique and important departure from the earlier.
Canadian Legal System
It is important to note that two legal regimes operate in Canada that are
common law and civil law. Civil law applies in the province of Quebec, and common
law applies in the other provinces and territories.
Quebec's civil law is codified. A Civil Code was first enacted in 1866, based
on the French Code Napoleon or Civil Code. It contained a comprehensive statement
of rules and general principles. A new Civil Code was enacted in 1991 and has been in
force since 1994. Courts in Quebec first look to the Code and then refer to previous
decisions for consistency and guidance.

56
 In provinces and territories under the common law regime, courts look first to
any legislation that may have been enacted, and then to previous decisions. In the
absence of legislation, judges interpret the common law for guiding future decisions.
Despite these differences, both common law and the Civil Code of Quebec are
adapting to meet new challenges and issues facing the Canadian legal system.
Common law continually changes with new precedents being set by judgments
rendered by the courts, and the Civil Code has already been amended number of times
since 1998.
Salient Features of the Constitution of Canada, 1982
The Constitution of Canada contains the British North America Act (BNA) of
1867 as a main document and it has been amended 23 times in 150 years and the last
amendment being the Constitution Act of 1982.
1. Written Constitution: The Canadian Constitution is mostly written as British
North America Act and the amendments effected in it from time to time. It also
contains the statutes passed by British Parliament expressly referred to Canada
viz. colonial laws, validity Act, the statute of Westminster 1931 and the Balfour
Declaration; Abdication Act 1937. Further, it contains British Orders-in-
Council such as orders admitting the Northwest Territories, British Columbia
and others to the dominion of Canada. It also contains the Constitutional Laws
enacted by the Canadian Parliament viz. the House of commons Act, Alberta
and Saskatchewan Acts, namely, those creating provinces and changing their
boundaries, the Act of 1875 establishing Canadian Supreme Court, Acts
relating to the executive council, the legislation and elections. All the above
documents form the written part of the Constitution. It is not a single
document. It is a collection of 20 documents, 13 Acts of the British Parliament,
7 Acts of the Canadian and 4 British orders-in-council.
2. A Federal Constitution: The powers have been divided between the
Dominion and the Provincial Governments. The provinces have been vested
with exclusive legislative control over a list of specified subjects. The
Dominion (centre) possesses exclusive legislative control over the rest.
Amendments to the major parts of the Constitution cannot be made without the
consent of the provinces. Though it is a federation, strong centralizing

57
 tendencies are discernible in it. The Central Government exercises numerous
powers over the provinces and their Governments.
3. Rigidity-cum-Flexibility: The Constitution Act, 1982 has laid down the
mending procedure in detail. It has established four legal formulae on
processes for amending the Constitution. Though the Constitution is
amendable it is very hard due to the procedures followed require four legal
formulae on processes which is not an easy task.
4. A Charter of Rights and Freedoms: The liberties provided by the Charter
include:
a) Fundamental Freedoms of Religion, Speech, Association (freedom of
conscience, thought, appeal, peaceful assembly, association).
b) Democratic Rights (the right to vote, the right to be elected);
c) Legal Right (right to be secured against unreasonable seizure or search, to
be informed promptly of the reasons for arrest or detention, and to be
represented by a lawyer, and the right to a public trial by an impartial
Court);
d) Mobility Rights (to enter, remain in, or leave Canada or any province);
e) Equality Right (no discrimination on grounds of race, religion, ethnic or
national origin, sex, age, or mental or physical disabilities);
f) Official Language Right; and
g) Minority Language Education Rights.
All the above rights, however, subject to such reasonable limits as can
be demonstrably justified in a free and democratic society. The Charter gives
the individuals the power to appeal to the Courts if they feel their rights have
been infringed upon or denied.
5. A Sovereign State: Though Canada enjoys a Dominion status, it is a fully
sovereign state for all intents and purposes. The Statute of Westminster of 1931
recognizes the sovereign status of Canada. The Constitution Act 1982
terminated the power of the British Parliament over Canada. It is a full-fledged
member of the U.N.
6. Equalization: According to Art. 36 of the Constitution Act 1982, the
Parliament or the Provincial Legislatures “are committed to promoting equal

58
 opportunities for the well-being of the Canadians, furthering economic
development to reduce disparities in opportunities, and providing essential
public services of reasonable quality to all Canadians; and also committed to
the principle of making equalization payments to ensure the Provincial
Governments have sufficient revenues to provide reasonably comparable levels
of public services at reasonably comparable levels of taxation.
7. Parliamentary Form of Government: The Canadian Constitution is based on
British Parliamentary model. The Governor-General is the nominal executive
head. The Prime Minister, the leader of the majority party in the House of
Commons, is the real head of the Government. The provinces also follow the
Parliamentary System of Government.
8. A Bicameral Legislature: The Canadian Parliament is bicameral, where
House of Commons is its Lower House and Senate is its upper House. The
Lower House is a directly elected chamber whereas the Senate is a nominated
chamber. The Lower House comprises 282 members whereas the Senate
comprises 104 members. The Canadian Senate is a powerless body.
Australian Legal/Judicial System
The Australian legal system is based on a fundamental belief in the rule of law,
justice and the independence of the judiciary. All people, Australians and non-
Australians alike are treated equally before the law and safeguards exist to ensure that
people are not treated arbitrarily or unfairly by governments or officials.
Principles such as procedural fairness, judicial precedent and the separation of
powers are fundamental to Australia’s legal system.
The common law system, as developed in the United Kingdom, forms the
basis of Australian jurisprudence. It is distinct from the civil law systems that operate
in Europe, South America and Japan, which are derived from Roman law. Other
countries that employ variations of the common law system are the United States,
Canada, New Zealand, Malaysia and India. The chief feature of the common law
system is that judges’ decisions in pending cases are informed by the decisions of
previously settled cases.
The Australian Constitution of 1901 established a federal system of
government, under which powers are distributed between the federal government and

59
the states. It defined exclusive powers (investing the federal government with the
exclusive power to make laws on matters such as trade and commerce, taxation,
defence, external affairs, and immigration and citizenship) and concurrent powers
(where both tiers of government are able to enact laws). The states and territories have
independent legislative power in all matters not specifically assigned to the federal
government. Where there is any inconsistency between federal and state or territory
laws, federal laws prevail. Federal laws apply to the whole of Australia.
In effect, Australia has nine legal systems that are the eight states and territory
systems and one federal system. However, it is the state and territory criminal laws
that mainly affect the day-to-day lives of most Australians.
Each of the federal and state systems incorporates three separate branches of
government—legislative, executive and judicial. Parliaments make the laws, the
executive government administers the laws, and the judiciary independently interprets
and applies them.
Australian Courts
The High Court of Australia interprets and applies the law of Australia,
decides cases of special federal significance, including challenges to the constitutional
validity of laws, and hears appeals (by special leave) from the federal, state and
territory courts. The High Court has a Chief Justice and six other judges who can
preside either individually or together. It is the highest court of appeal on all matters,
whether decided in the federal or state jurisdictions.
The other federal courts are the Federal Court of Australia, the Family Court
of Australia and the Federal Magistrates Court of Australia. Under the Constitution,
state and territory courts may be invested with federal jurisdiction.
The Federal Court’s jurisdiction is broad, covering almost all civil matters
arising under Australian federal law and some summary criminal matters. The court
also has substantial and diverse appellate jurisdiction, including over the decisions of
single judges of the Federal Court and the Federal Magistrates Court (in non-family-
law matters) and some decisions of the state and territory courts.
The Family Court is Australia’s superior court in family law. Through its
specialist judges and staff, the court helps to resolve complex family disputes. It also
covers specialized areas such as cases relating to the Hague Convention on

60
International Child Abductions (which came into force in Australia in December
1998) and the international relocation of children by parents or guardians.
The Federal Magistrates Court was established by the Federal Parliament in
1999 and conducted its first sittings in July 2000. Its jurisdiction includes family law,
bankruptcy, unlawful discrimination, consumer protection and trade practices,
privacy, migration, copyright and industrial law. Nearly all of its jurisdiction is shared
with the Family Court or the Federal Court.
Australian state and territory courts have jurisdiction in all matters brought
under state or territory laws. They also handle some matters arising under federal
laws, where jurisdiction has been conferred by the Federal Parliament. State and
territory courts deal with most criminal matters, whether arising under federal, state or
territory law.
Each state and territory court system operates independently. All states have
Supreme Courts and some also have Courts of Criminal Appeal, which are the highest
appellate courts at the state level. Courts known as ‘District’ or ‘County’ courts hear
the more serious cases, with a judge presiding over the court to interpret and
determine the law. For more serious charges it is usual for a jury (usually of 12
people) to determine the guilt or innocence of defendants. Serious offences such as
murder, rape and armed robbery are usually tried in a higher court.
Lesser offences are dealt with in lower courts, known as local or magistrates
courts (or courts of petty sessions), where magistrates determine the guilt or
innocence of defendants.
In all cases, defendants are considered to be innocent until proven guilty
beyond all reasonable doubt. There is no death penalty in Australia.
Russian Legal System
Constitution of the Russian Federation was adopted by national referendum on
December 12, 1993. Russia’s Constitution came into force on December 25, 1993, at
the moment of its official publication. It replaced the previous Soviet-era Constitution
of April 12, 1978 of Russian Soviet Federated Socialist Republic, following the
Russian Constitutional crisis of 1993.
Declaration of adoption

61
 “We, the multinational people of the Russian Federation, united by a
common fate on our land, establishing human rights and freedoms,
civic peace and accord, preserving the historically established state
unity, proceeding from the universally recognized principles of
equality and self-determination of peoples, revering the memory of
ancestors who have conveyed to us the love for the Motherland, belief
in the good and justice, reviving the sovereign statehood of Russia and
asserting the firmness of its democratic base, striving to ensure the
well-being and prosperity of Russia, proceeding from the responsibility
for our Motherland before the present and future generations,
recognizing ourselves as part of the world community, adopt the
Constitution of the Russian Federation."
The constitution of Russian Federation is divided into two sections:
Section One
1. Fundamentals of the Constitutional System
2. Rights and Liberties of Man and Citizen
3. Russian Federation
4. President of the Russian Federation
5. Federal Assembly
6. Government
7. Judiciary
8. Local Self-Government
9. Constitutional Amendments and Revisions
Section Two
1. Concluding and Transitional Provisions
References:
Books:
1. S.R. Myneni, Legal System in the World, (1st ed.), Asia Law House,
Hyderabad, 2007 (Chapters 1 (Unit II), Chapter 2 (Unit II), Chapter 3 (Unit I),
Chapter 4, 5 (Unit II), Chapter 3 (Unit IV)).
2. Donald Gifford, Understanding the Australian Legal System, Cavendish Pub.
Ltd., Australia, (1997).
3. Gary Slapper & David Kelly, English Legal System, Cavendish Pub. Ltd.,
(1999).
4. Herbert Kritzer (edt.), Legal Systems of the World, Encyclopedia, Vol. IV,
Pentagon Press, (2005).

62
Module – VII Indian Legal System
Unit-I
a) Judicial System: Hierarchy of Courts
b) Indian Court Structure
c) Supreme Court of India (Jurisdiction)

Introduction
The Indian Legal System is one of the oldest legal systems in the entire history
of the world. It has altered as well as developed over the past few centuries to absorb
inferences from the legal systems across the world. The Constitution of India is the
fountainhead of the Indian Legal System. It demonstrates the Anglo-Saxon character
of judiciary which is basically drawn from the British Legal System.
The Primary Origins of Law:
 The Indian Constitution
 Customary law
 Case law, and
 Statutes (legislation).
Among these, the statutes are operated by the Parliament, union territory
legislatures and state legislatures. There are mainly two categories under which the
Indian legal system operates, these include-
 Indian Civil Law and
 Criminal Law
India is a land of diversified culture, local customs and various conventions
which are not in opposition to ethics. People of different religions as well as traditions
are regulated by all the different sets of personal laws in order to relate to family
affairs.
Classifications of Indian legal system:

63
 The judicial system or Indian legal system is a unique feature of the Indian
Constitution. It is an integrated system of courts that administer both state and union
laws. The Supreme Court of India is the uppermost part in the Indian legal system.
Under this, each state or a group of states possesses High Courts. There are several
subordinate courts under these High Courts.

Basics of Indian Legal System:

The President of India appoints the Chief Justice and the other judges of the
Supreme Court. The Supreme Court of India has its own advisory and appellate
jurisdiction that extends to the enforcement of primary rights mentioned by the Indian
Constitution and to any argument in between the Government of India and all the
states of India.
While the Indian legal system is measured fair, a large backlog of different
types of cases can be found and regular dissolutions can effect in the delay before the
closing of a particular case. Though, matters of precedence and public interest are
dealt with efficiently. Besides these, interim relief is also allowed in other cases where
it is necessary.
Judicial System: Hierarchy of Courts
In India, the Supreme Court is at the apex of the judicial system and has a very
broad jurisdiction. It is also the general court of appeal from High Courts and also
enjoys an advisory jurisdiction. Its decisions are final and binding in all matters.
Below the Supreme Court are the High courts, one in each State or one for two
or more States (a case in point being Chandigarh High court which functions as the
High Court for both Punjab and Haryana). They also have a wide jurisdiction and are
important instruments of justice. The most important aspect of their jurisdiction is
their power to issue writs for enforcing fundamental rights. Below the High Courts
lies a hierarchy of subordinate courts with separate civil and criminal jurisdiction.
This hierarchy varies slightly from State to State as each State can provide for its own
hierarchy. However most of them share the following common feature:
Each State is divided into Judicial districts presided over by the District and
Sessions Judge. The court of the District and Sessions Judge is the Principle Civil

64
Court of original jurisdiction. It also has the power to try all cases including those
punishable with death. Below this we have courts on civil side known in different
states as Munsifs, Sub-Judges, Civil Judges and the like and lower courts on criminal
side consists of courts of Chief Judicial Magistrate and Judicial Magistrates of First
and Second class. Apart from all these, villages in some parts of India have Panchayat
Courts under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri
etc. These courts deal with petty civil and criminal issues, which are local in scope.
One of the unique features of Indian Judicial System is that it consists of a
unified and integrated system of courts and not a dual system. This exists despite the
adoption of a federal system and existence of Central Acts and State Acts in their
respective spheres. This means that the Supreme Court, High Courts and the Lower
Courts constitute a single, unified judiciary having jurisdiction over all cases arising
under any law whether enacted by the Parliament or a State legislature. This is unlike
a federal country like USA where a dual system of courts exists with the Supreme
Court at the top along with a separate parallel judicial system in each State.
Hierarchy of Courts:

65
Supreme Court of India (Jurisdiction)
The Supreme Court has original, appellate and advisory jurisdiction. Its
exclusive original jurisdiction extends to any dispute between the Government of
India and one or more States or between the Government of India and any State or
States on one side and one or more States on the other or between two or more States,
if and insofar as the dispute involves any question (whether of law or of fact) on
which the existence or extent of a legal right depends. In addition, Article 32 of the
Constitution gives an extensive original jurisdiction to the Supreme Court in regard to
enforcement of Fundamental Rights. It is empowered to issue directions, orders or

66
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari to enforce them. The Supreme Court has been conferred with
power to direct transfer of any civil or criminal case from one State High Court to
another State High Court or from a Court subordinate to another State High Court.
The Supreme Court, if satisfied that cases involving the same or substantially the
same questions of law are pending before it and one or more High Courts or before
two or more High Courts and that such questions are substantial questions of general
importance, may withdraw a case or cases pending before the High Court or High
Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act,
1996, International Commercial Arbitration can also be initiated in the Supreme
Court.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate
granted by the High Court concerned under Article 132(1), 133(1) or 134 of the
Constitution in respect of any judgement, decree or final order of a High Court in both
civil and criminal cases, involving substantial questions of law as to the interpretation
of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High
Court concerned certifies: (a) that the case involves a substantial question of law of
general importance, and (b) that, in the opinion of the High Court, the said question
needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the
Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an
accused person and sentenced him to death or to imprisonment for life or for a period
of not less than 10 years, or (b) has withdrawn for trial before itself any case from any
Court subordinate to its authority and has in such trial convicted the accused and
sentenced him to death or to imprisonment for life or for a period of not less than 10
years, or (c) certified that the case is a fit one for appeal to the Supreme Court.
Parliament is authorized to confer on the Supreme Court any further powers to
entertain and hear appeals from any judgement, final order or sentence in a criminal
proceeding of a High Court.
The Supreme Court has also a very wide appellate jurisdiction over all Courts
and Tribunals in India in as much as it may, in its discretion, grant special leave to
appeal under Article 136 of the Constitution from any judgment, decree,

67
determination, sentence or order in any cause or matter passed or made by any Court
or Tribunal in the territory of India.
The Supreme Court has special advisory jurisdiction in matters which may
specifically be referred to it by the President of India under Article 143 of the
Constitution. There are provisions for reference or appeal to this Court under Article
317(1) of the Constitution, Section 257 of the Income Tax Act, 1961, Section 7(2) of
the Monopolies and Restrictive Trade Practices Act, 1969, Section 130-A of the
Customs Act, 1962, Section 35-H of the Central Excises and Salt Act, 1944 and
Section 82C of the Gold (Control) Act, 1968. Appeals also lie to the Supreme Court
under the Representation of the People Act, 1951, Monopolies and Restrictive Trade
Practices Act, 1969, Advocates Act, 1961, Contempt of Courts Act, 1971, Customs
Act, 1962, Central Excises and Salt Act, 1944, Enlargement of Criminal Appellate
Jurisdiction Act, 1970, Trial of Offences Relating to Transactions in Securities Act,
1992, Terrorist and Disruptive Activities (Prevention) Act, 1987 and Consumer
Protection Act, 1986. Election Petitions under Part III of the Presidential and Vice
Presidential Elections Act, 1952 are also filed directly in the Supreme Court.
Under Articles 129 and 142 of the Constitution the Supreme Court has been
vested with power to punish for contempt of Court including the power to punish for
contempt of itself. In case of contempt other than the contempt referred to in Rule 2,
Part-I of the Rules to regulate Proceedings for Contempt of the Supreme Court, 1975,
the Court may take action (a) Suo motu, or (b) on a petition made by Attorney
General, or Solicitor General, or (c) on a petition made by any person, and in the case
of a criminal contempt with the consent in writing of the Attorney General or the
Solicitor General.
Under Order XL of the Supreme Court Rules the Supreme Court may review
its judgment or order but no application for review is to be entertained in a civil
proceeding except on the grounds mentioned in Order XLVII, Rule 1 of the Code of
Civil Procedure and in a criminal proceeding except on the ground of an error
apparent on the face of the record.
References:
Books:
1. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapters 4 (Unit II).

68
 2. Arvind Datar, Commentary on the Constitution of India, (2nd edn.), Wadhawa,
Nagpur, (2007).
3. P.M. Bakshi, The Constitution of India, (7th edn.), Universal Law Pub., New
Delhi, (2006).
4. M.P. Jain, Indian Constitutional Law, (5th ed.), Wadhawa, Nagpur, (2004).

Module – VIII Legal Research

Unit-I
a) Importance of Legal Research
b) Legal Research: Techniques and Ideas
c) Citations

Introduction
Legal research is the process of identifying and retrieving information
necessary to support legal decision-making. In its broadest sense, legal research
includes each step of a course of action that begins with an analysis of the facts of a
problem and concludes with the application and communication of the results of the
investigation.

69
 The processes of legal research vary according to the country and the legal
system involved. However, legal research generally involves tasks such as: 1) finding
primary sources of law, or primary authority, in a given jurisdiction (cases, statutes,
regulations, etc.); 2) searching secondary authority (for example, law reviews, legal
dictionaries, legal treatises, and legal encyclopedias such as American Jurisprudence
and Corpus Juris Secundum), for background information about a legal topic; and 3)
searching non-legal sources for investigative or supporting information.
Legal research is performed by anyone with a need for legal information,
including lawyers, law librarians, and paralegals. Sources of legal information range
from printed books, to free legal research websites and information portals to fee
database vendors such as LexisNexis and Westlaw. Law libraries around the world
provide research services to help their patrons find the legal information they need in
law schools, law firms and other research environments. Many law libraries and
institutions provide free access to legal information on the web, either individually or
via collective action, such as with the Free Access to Law Movement.
Citations
A citation is a reference to legal authorities and precedents such as statutes,
cases, regulations and law review articles. Citations are used in arguments to courts,
legal textbooks, law review articles and the like to establish or fortify the propositions
argued.
Citations to legal materials follow a standard format which makes it possible
for anyone using a law library to find cited cases, statutes, regulations, and law review
articles.
Most legal citations consist of three basic parts:
1) the name of the case, statute, or article
2) a statement of where the item can be found in a multi-volume set of legal materials
written as: volume number, name of publication (or set) page number
3) a date
If we will see the citation of a case, a complete case citation looks like as
follows:
Brown v. Board of Education, 347 U. S. 483 (1954).

70
 The starting point for legal research is to know how that law, contained in the
report of a case, section of an Act or in a clause of a Regulation, is referred to by the
legal profession. This is known as the citation of cases, Acts and regulations. Thus we
say that a case is cited in court by counsel to provide the legal authority for the
proposition that is being put forward.
References:
Books:
1. Robert Watt, Concise Legal Research, (5th ed.), Universal Law Pub. Pvt. Co.,
New Delhi, 2004 (Chapter 1).
2. S.K. Verma and M. Afzal Wani, Legal Research and Methodology, (2nd ed.),
The Indian Law Institute, 2001 ( Chapter Part- B p.219-240).
3. Sharon Hanson, Legal Method, Cavendish Pub. Ltd., London, (1999).

Module – IX Using Law Library

Unit-I
a) Importance of Law Library
b) Using a Law Library
c) Finding the Law

Introduction
Like any other library a law library is a trinity of men, material and
building. It has been aptly remarked about a law library that “the law library is truly a
vital factor in the administration of justice, an institution of extraordinary social
significance in a free society. Inspiring is the example of men and women of vision
who devote their talents to the creation and perpetuation of law libraries whose
benefits reach out far and beyond the personal interests of the original creators.” In

71
addition, the law library is a “community trust”, which Gilbert Stephenson defined as
“an ocean liner receiving its cargo in part from living trusts, which are private ships
and carrying it over into successive generations as to a distant port, there to be
distributed for the common good.”
A law library contains highly specialized materials, and this requires special
skill to handle. Basically legal material consists of statutory law and reports of
decided cases. Both these types of legal materials relate to the “authority” and
“precedent” respectively. Hence any type of research will not be complete unless
these materials have been scanned through. “The term statutory law is more inclusive
than is generally considered by the term in popular parlance for it includes not only
legislative enactments but constitutions, treaties, court rules, interstate compacts,
municipal ordinances, and administrative rules and regulations.”
Any law library has to be well equipped with regard to these two basic
materials. These materials may equip the reader not only with what the law is but also
help him understand that in a complicated society with complex laws, he may have to
take recourse to such secondary materials as text books, reference books and articles.
For a research library these materials may have to be in abundance, but in addition
such a library has to contain materials in allied fields such as history, political science,
anthropology, sociology and economics and also in comparative law. The task of a
researcher is not only to find the existing law but also to examine alternative solutions
to a problem and to suggest reform in law.
Using a Law Library
Legal research inevitably involves the use of the books, pamphlets, periodicals
and documentary materials in libraries. General source materials have to be consulted
for the necessary background knowledge of the problem to be investigated.
Knowledge of previous findings in similar cases is also required by the legal
researchers. All these source materials are numerously available in library. Use of the
library is a must to any researcher. Hence, a researcher should know how to use the
resources of libraries. He should understand the ways in which libraries organize
collections and with knowledge of basic bibliographic and reference materials. The
general procedure of maintaining libraries is the same in any library because all
libraries organize their collections on the same general principles and provide similar

72
resources for users. All the libraries have a system of subject classification, a card
catalogue, and certain bibliographic and reference materials.
A researcher who wishes to use a law library must know how to trace the
required material from the books kept in a library. Hence he should have thorough
knowledge regarding the availability of books and reading material, how to use the
library catalogue and also the knowledge of classification system used in the library.
He must acquainted with the catalogue which gives him the information of the
available books with title, author and place of publication and publisher along with
call number of the books.
References:
Books:
1. S.K. Verma and M. Afzal Wani, Legal Research and Methodology, (2nd ed.),
The Indian Law Institute, 2001 ( Chapter Part B p. 241-263).
2. Robert Watt, Concise Legal Research, (5th ed.), Universal Law Pub. Pvt. Co.,
New Delhi, 2004 (Chapter 6)
3. S.R. Myneni, Legal Research Methodology, (3rd ed.), Allahabad Law Agency,
2004 (Chapter 12)
4. S.K. Mishra, Legal Language, Legal Writing and General English, (1st ed.),
Allahabad Law Agency, 2008 (Chapter12)

Module – X Use of E-Sources and Legal Research

Unit-I
a) Use of Internet Explorer and Search Engine for Legal Information
b) International Legal Service Providers
c) National Legal Service Providers
d) Quotable Quotes

Introduction
Nowadays we find computers on the desks of the lawyers. The influence of
computers and electronic sources on law has already effected significant changes and
there is likelihood of many more changes with the increasing sophistication of
equipment and technique. Now the advocates are familiar with new jargon of
computers ‘input’, ‘output’, ‘processing’, ‘programming’, ‘storage’, ‘retrieval’,
‘software’, ‘browse’, ‘search’, ‘engines’, ‘databases’, etc. Computers and electronic
sources are almost playing the part of libraries. Certain practical advantages are that

73
computers can assist practitioners by timing, and costing interviews with clients,
besides storage of information.
Internet facility brought the whole knowledge of the world into a lap-top
computer. Information Technology has developed a lot and e-mail facility helps the
researcher in communication.
The researcher can get information through websites and he can get the
national and international statutes, agreements, and details of case laws relating to a
particular issue with the use of .(dot) com online stores through different websites.
Computer, at present, takes the place of a calculator in the hands of learners. With the
help of the printer, the researcher can get the printed copy of the documents needed
within no time. Nowadays use of computer and electronic sources is a must to any
legal practitioner or legal researcher. The web universe, with thousands of sites that
get added everyday, is expanding rapidly.
When we look for sites that contain the required information, we access a
search engine and invoke a search process; the search engine scans its database,
collects all the appropriate links that match our query, cooks a web page with this
search result and pushes it to over browser.
One of the methods through which a search engine expands its web database is
by grabbing the link information using automatic programs called Crawlers. These
programs move continuously from one site to the other and fetch information and
push them into the engine’s database. This, technique works fine as long as the
scanned site has a well-laid out site structure with static web pages.
The software does not finish its job by just downloading the links, it analyses
the links, removes irrelevant links, then downloads the pages and stores it in your hard
disk. The service also provides the facility to save the search results in your machine
so that you can retrieve it later.
Search Engine and Legal Information
If one wants to get relevant information on any subject matter, he can switch
on his computer and open the internet browser to get that information through a
search engine. A search engine is an internet site which stores the information about
all the branches of knowledge and after receiving the search request compares it to the
entries in its store and presents the required matter to the searcher. A search engine is

74
a service providing website consisting of organized and indexed information provided
by different web publishers. There are a number of search engines such as Excite,
Infoseck, Yahoo, Metacrawler, Netfind, Google.Com etc.
Use of Internet Explorer and Search Engine for Legal Information
A research scholar who wants to know about the Acts, case laws both national
and international importance can enter the Internet Explorer to get information. He
has to follow the following steps to search the relevant information:
1. Switch on the desktop button.
2. Double click on the internet connector icon to open the internet browser.
3. Type the user name and password in the relevant box and click on
‘connect/Sign on’ and you find the Microsoft Internet Explorer.
4. Click on the ‘search’ button of the tool bar.
5. Click on the ‘choose a search engine’ in the search pane that appears on the left
side of the internet explorer window.
6. On the right side pane of the internet explorer window you find a list of search
engines.
7. Select and click the search engine in the right pane of the window browser.
8. Different categories of the search engines are displayed on the search pane of
the browser.
9. Type the word or phrase you are looking for in the next base and click on
‘search/submit/find, depending on the search engine or click on the topics you
are searching.
10. Click on any link in the search pane of the internet explorer window to open
the associated web page.
11.Click on the link any time you want to pursue another link from the search
results. The new web page will be open in the right pane.
12. Click a link display the web page in the list of search result.
13. Following this procedure you can get information on any legal issue you want
to know about by using one or more search engines.
There are a number of internet sites to provide legal information. They are
given below:
Selected List of Internet Sites for Legal Research:

75
 1. abanet.org
2. aesham.com
3. allindia.com
4. allindiareporter.com
5. Amity.edu
6. animal-law.org
7. appeccp.org
8. caselaw.delhi.nic.in/incodis
9. copyright.com
10. lawsinida.com
11.lawsininida.com
There are many more sites which one may come across in day to day study.
Those sites may be added to this list to enrich the source.

International Legal Service Providers

Westlaw and Lexis Nexis serve as a comprehensive and complex sources of
legal information, providing primary source materials, including cases, statutes and
regulations, and secondary sources such as legal periodicals and treatises.
Westlaw: International Legal Service Providers:
Westlaw is a service owned by Thomson Corporation. Westlaw organizes its
materials into general categories such as US Federal Materials, US State Material,
International /World Wide Material etc. Each category includes a variety of databases.
Detailed description of each database can be obtained by SCOPE feature, which
displays information about what is available in a database along with coverage dates,
search tips and other valuable information. Details of various categories are as
follows:

76
 1. US Federal Material and US State Material: They contain primary federal and
state legal information, including case laws, statutes and administrative
materials.
2. Topical Material by Area of Practice: This includes a variety of topical
databases, such as taxation, security etc.
3. West News: It includes a comprehensive coverage of news, business and
financial information.
4. Law Reviews, Bar Journals and Legal Periodicals: This includes documents
from law reviews, legal encyclopedias, bar journals etc.
How to Use Westlaw:
In Westlaw at the right hand side there is a tool bar. This document opens in the
find link. To retrieve a document when you know its citation, type the citation in the
Enter citation text box and click Go. You do not need to include brackets or use exact
spacing, capitalization or punctuation. For example, you can type [2000] 2 HKLRD
312, 2000 2 hklrd 312 or 2000 2hklrd312 to retrieve the same document.
Find Citation Templates
If you are uncertain about correct citation format for your Find request, you
can use a fill-in-the-blank template. To display a template, type the publication
abbreviation in the Enter citation text box and click Go. For example, type cmlr in the
Enter citation text box and click Go to retrieve the citation format for documents in
Common Markets Law Reports. You can retrieve the following types of documents by
typing their citations:
 Case Law
 Statutes
 Regulations
 Topical Material
 Legal Practice Materials
 Law Reviews and Bar Journals
 Treatises
 Newspapers and Magazines
Publication List
Click Publication List in the left frame to view a complete list of publications
and abbreviations that can be used with Find. To move through the list, click the

77
arrows at the top of the right frame. To quickly find an abbreviation, type an
appropriate word in the text at the top of the Publications List and click Scan.
Publication Country
Because publications from different countries can have the same publication
abbreviation, you must specify the country from which you want to retrieve
documents. To choose a country for your current Find request, select the country from
the Publication Country drop-down list in the left frame. To change the default
country, choose Options from the drop-down list on the toolbar. The Options- General
Westlaw page is displayed. Choose a country from the list.
Lexis Nexis
The Lexis Nexis group provides information to legal, corporate, government
and academic markets, and publishes legal, tax and regulatory information, via online,
hardcopy print and CD-ROM formats. The global legal and information division of
Reed Elsevier plc, Lexis Nexis Group combines dozens of brands that are leaders
within their respective markets, including Butterworths, Les Editions du Juris
Classeur and Martindale-Hubbell.
Lexis Nexis Group unites strong brands, pioneering technologies and premium
information for customers in the legal corporate, government and academic markets.
More than two-thirds of its revenue is generated in the North American marketplace.
At the same time the Group is the market leader in the United Kingdom and the
British Commonwealth and major publisher in the legal, tax and regulatory markets in
Continental Europe and Latin America.
The Group is divided into four main operating units: North American Legal
markets, US Corporate and Federal markets, Martindale-Hubbell and the International
Division. The division which comprises the Group’s publishing assets is regionally
organized, in Europe, Asia-Pacific and Latin America. These include the market-
leading Butterworths companies in the UK and British Commonwealth, Les Editions
du Juris Classeur in France, and many other companies that are household names in
their markets.
The Group’s products are available via the World Wide Web, dial-up online,
CD-ROM and hardcopy print. The thousands of titles available via Lexis Nexis Group
products offer access to some of the most recognized and authoritative sources in the

78
world today. A trusted source, Lexis Nexis Group offers targeted Web information
solutions that can be integrated into customer business processes and systems. Lexis
Nexis Web and dial-up online solutions combine searchable access to more than three
billion documents from thousands of sources with leading edge systems and tools for
managing this content. Lexis Nexis delivers a high quality resource with which to
build legal research and knowledge-management solutions for the entire enterprise.
The Lexis service, the first commercial, full text legal information service,
began in 1973 to help legal practitioners research the law more efficiently. The
companion Nexis, launched in 1979 news and business information service, to richen
research with recent and archival news and financial information. Since that time, the
service has grown to become the largest news and business online information
service, including comprehensive company, country, financial, demographic, market
research and industry reports. Providing access to thousands of worldwide
newspapers, magazines, trade journals, industry newsletters, tax and accounting
information, financial data, public records, legislative records, data on companies and
their executives makes the Lexis Nexis service and indispensable tool for gathering
information and providing accurate answers.
Lexis Nexis organizes its materials into general categories as Combined
Federal and State Case Law-US, Federal Legal-US, State Legal-US. Detailed
description of these contents is as follows:
1. Combined Federal and State Case Law: It contains case laws from federal and
state courts.
2. Federal Legal – US: It contains primary federal case laws.
3. Area of Law by topic: This topic contains specialized sources which cover
such diverse subjects as copyright, insurance, security etc.
4. News: It provides current awareness and information service.
How to Use Lexis Nexis
The main page of Lexis Nexis, after logging in, shows two search boxes. The
first one with the title ‘choose from my last 20 sources accessed’ displays last 20
sources accessed. Whereas the second one has the title ‘Look for a source’. This has
two options; the first one is ‘match terms in long names’ i.e. formal name used to

79
describe a source, e.g. Federal Tax. The second one is search by ‘short name’ i.e. the
traditional library and file name.
The second option includes ‘Explore Sources’. Using this we can select broad
hierarchical topics. At the end of the page there is another search space for ‘command
searching’. This allows researcher to quickly access particular library and file instead
of navigating through sources of hierarchy.
National Legal Service Providers
Manupatra:
Businesses today rely on professional information that either makes them
money or saves money. Information which helps them in making critical decisions,
that defines their performance and success. There is plenty of content available on the
internet, the corporate intranet, extranet and in print. But users are struggling to sort
through this vast amount of data to cull out the information that is critical and relevant
as the available content is unstructured, disjoined and difficult to access.
Increasingly search for information is moving to the Internet. Speed, ease of
use, saving time, space and cost, are few of the factors responsible for this migration
from conventional search modes to the digital media.
Manupatra operating on a versatile yet robust platform utilizes the power and
potential of the digital media, “where content comes to life”. It provides a structured,
comprehensive and intelligent database for legal and corporate professionals to do
their research and access relevant information in a form and manner that is useful to
them.
Manupatra.com is a virtual library on Indian Laws, Judgements, Business
Policy, Procedures, Notifications, Rules, Orders’ News and more.
Manupatra offers dynamic, current and updated information on topics critical
to the legal fraternity, corporate establishments and professionals. Manupatra
comprises of a vast and ever expanding database on the following:
1. Supreme Court
a) Judgements delivered since inception and updated on a daily basis;
b) Rules;
2. High Courts

80
 a) Judgements delivered by Delhi, Mumbai, Tamil Nadu, Karnataka,
Andhra Pradesh, Allahabad, Kolkatta, Rajasthan, Kerala, Punjab and
Haryana High Courts regularly.
b) Courts rules, Courts fees of respective High Courts, etc.
3. Tribunals
CGEAT, ITAT, SAT, CLB, Consumer Forum covering Central and
State Benches.
4. Statutes:
Central Acts with rules incorporating all amendments till date.
5. Forms: Legal and business forms as currently applicable
6. Business and Policy:
Virtual modules covering legal framework, policies, procedures, forms,
case law, notification, rulings and more on: Arbitration, Direct
Taxation, Capital Markets, Cyber & IT Laws, Environment, Anti-
Dumping, WTO, Investment Destinations Abroad, Intellectual Property
Rights and more.
How to Use Manupatra:
Manupatra can be accessed after subscribing as a member or for a free trial of
30 days. On the top right hand side of the home page of Manupatra there is link to
sign in by typing user ID and password. There after the main search page opens up.
On the top of the page there is a tool bar. In this the first two links are:
1. SELECT TOC: Select table of Contents
2. DESELECT TOC: Deselect table of Contents
Moreover, the third option is ‘MANU SEARCH’. Through this option a large
variety of topics can be searched for. For e.g. arbitration, insurance, etc. Moreover
legal maxims can be searched. For this type of search there are three options given.
Fourth option is ‘LEGAL SEARCH’. This link gives many search options. The
fifth option on the tool bar is of ‘SEARCH HISTORY’. Through this one can view the
last 20 searches made by him.
The sixth option is of ‘FEEDBACK FORM’. Through this option one can
bring to the notice of the authorities if there is any error in the document. Through the

81
next option i.e. ‘What’s New’, one can view the latest updates and additions to each
module and section. Last option is about ‘SIGH OFF’.
Indlaw
Indlaw is a business-to-business Internet service provider of research modules,
relating to Indian legal, tax, business and regulatory issues. Indlaw is part of the
Indian law online project which was launched in April 1997 as a collaborative
exercise between professionals and academicians based in U.K. and in India to build
and electronic legal library to enable solicitors, advocates, students and clients to have
access to information on various primary and secondary legal documents like the
Constitutional texts, Parliamentary debates, Case law, Parliamentary and State
enactments and delegated legislation in both India and the U.K.
Indlaw is today a leading provider of easy-to-use comprehensive and cost-
effective legal, tax and regulatory information on the Internet. Rating agencies like
Alexa have confirmed that Indlaw is the most trafficked Indian legal and regulatory
resource base online.
Indlaw caters to the needs of every professional, whether he is a lawyer,
chartered accountant, company secretary, management consultant, director or an
entrepreneur. Indlaw ensures that you are aware of the latest changes in the legal and
policy framework faster than from any other source.
Indlaw’s databases include: Case Laws, Legislations, Rules, Notifications,
Circulars, Trade Notices, Practice Directions, Forms, Reports and Proceedings, FAQs,
Indlaw Articles, News, Press Notes.
All India Reporter
AIR Ltd. is the creation of the genius pioneering zeal of late Mr. V.V. Chetaley
who was also a crusader and fighter against all odds. The institution AIR Ltd. came
into its existence in 1922 with its first Law Reporter – All India Reporter. It was
followed by other Law Reports like Criminal Law Journal, Labour and Industrial
cases, Taxation Law Reports, Allahabad Law Journal and AIR Supreme Court
(weekly) one after another. Moreover, the institution took up the more diversified
work of preparing and publishing commentaries. Digests and Manuals – all confined
to Federal Acts of India. The eye was always on the binding law of the land. The
activities of the Institution can be broadly classified into two categories as follows:

82
 1. Reporting judgements of Supreme Court of India and all High Courts in India.
Whereas All India Reporter has been a comprehensive Journal in as much as
reporting judgements in all branches of Law, the other journals, as intended
and designed, are specialized agencies reporting judgements of these very
superior Courts in their respective branches of Law.
2. Preparing and publishing commentaries on important Central enactments of
common use or impact in life such as IPC, CPC, Cr.P.C, etc. Digests of cases
reported in AIR and other important Law Journals of the country; and Manuals
of unrepeated Central Acts of India. All these publications, including Journals
are edited with meticulous care and caution. They are widely circulated,
copiously referred and cited and critically acclaimed and are rated in the legal
and judicial circles as most dependable.
Keeping pace with the tremendous scientific advancements in the field of
telecommunications and computer sciences the Company now has an ambitious plan
of switching over to the silicon medium.

Quotable Quotes

1. “Law is merely the expression of the will of the strongest for the time
being, and therefore laws have no fixity, but shift from generation to
generation.”
- Henry Brooks Adams
2. “Where there are laws, he who has not broken them need not tremble.”
- Vittorio Alfieri, Virginia
3. “Law is king of all.”
- Henry Alford, School of the Hear

83
 4. “We are under a Constitution, but the Constitution is what the judges say
it is, and the judiciary is the safeguard of our property and our liberty
under the Constitution”
-Charles Evans Hughes
5. “He that would make his own liberty secure must guard even his enemy
from oppression; for if he violates this duty he establishes a precedent
that will reach to himself.”
- Thomas Paine quotes
6. “Precedent keeps the law predictable and so more or less ascertainable.”
- Lord Devlin
7. “Statutes should be constructed not as theorems of Euclid but with some
imagination of the purposes which lie behind them and to be too literal in
the meaning of words is to see and miss the soul.”
-Doraiswamy
Raju
8. “Legislation is that source of law which consists in the declaration of legal
rules by a competent authority. When judges by judicial decisions lay
down a new principle of general application of the nature specifically
reserved for the legislature they may be said to have legislated, and not
merely declared the law”
- R.C. Lahotia
9. “Law is the great organ through which the sovereign power of society
moves.”
- Bacon
References:
Books:
1. S.R. Myneni, Legal Research Methodology, (3rd ed.), Allahabad Law Agency,
2004
Compulsory Readings:
Books:
1. Granville Willains, Learning the Law.
2. Nomita Aggarwal, Jurisprudence (Legal Theory).
3. B.N.M. Tripathi, An Introduction to Jurisprudence and Legal Theory.
General Bibliography:
1. Benjamin N. Cardozo, ‘The Nature of Judicial Process’.

84
 2. Andrew Goodman, ‘How Judges Decide Cases: Reading, Writing and
Analysing Judgements’, Universal Law Pub., 2009.
Essential Case Law:
1. Raj Kishore Jha v. State of Bihar, AIR 2003 SC 4664
2. Commissioner of Income Tax, Hyderabad v. P.J. Chemicals, 1994 Suppl. (3)
SCC 535
3. Air India v. Narges Mirza, AIR 1981 SC 1829
4. Geeta Hariharan v. Reserve Bank of India, AIR 1999 SC 1149
5. Meera Mathur v. LIC 1992 (1) SCC 286
6. D.K.Basu v. State of West Bengal 1997 (1) SCC 417
7. Dwarka Prasad Agrawal v. B.D. Agrawal, AIR 2003 SC 2686
8. Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup & Sons, 1994
(6) SCC 623
9. Shikhar Chand Falodia v. S.K. Sanganeria, AIR 2004 Gau. 19
10. Grandphone Company v. B.B. Pandey, AIR 1984 SC 667
11. Peoples Union for Civil Liberties v. Union of India, 1997 (1) SCC 301
12. Lachman v. Nand Lal, AIR 1914 Oudh 123
13. R.K. Tangkhul v. V.R. Simirei, AIR 1961 Manipur 1
14. Balusami v. Balkrishna, AIR 1957 Mad. 97
15. Tekaha A.O. v. Sakumeeran A.O., AIR 2004 SC 3674
16. Superintendent and Remembrancer of Legal Affairs West Bengal v.
Corporation of Calcutta, AIR 1967 SC 997
17. Nath Bros. Exim International Ltd. v. Best Roadways Ltd. 2000 (4) S.C.C. 553
18. State of Bihar v. Sonawati, AIR 1961 SC 221, 231
19. Samta Vedike v. State of Karnataka, 2003 CR.L.J. 1003 Kar. H.C.
20. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, 556

85