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LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM

Semester – I
B.A.LL.B. (Hons.)

Module – I Nature and Function of Law (11 pgs)………………………..……3

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________________________1

Module – II Sources of Law (3 pgs)………………………………………….…14

a) Sources of Law
i) Custom
ii) Precedent
iii) Legislation___________________________________________1.30

Module – III Fundamentals of Statutory Interpretation (3 pgs)…...…….…..17

a) What is Statute Law?
b) Rules of Interpretation
c) Aid to Interpretation of Statutes______________________________0.45

Module – IV Judgment Analysis and Precedent (12 pgs)..........................…...20

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________________________________1

Module – V Legal and Judicial Process (19 pgs)..…………………………......32

Unit-I
a) Parliamentary Procedure
b) Concept of Rule of Law
c) Doctrine of Separation of Power
d) Classification of Administrative Action
e) Rule Making Power of Administration (Delegated Legislation)
Unit-II
a) Judicial Activism
b) Legitimacy of Judicial Activism
c) Writ Jurisdiction (Supreme Court)
d) Judicial Review of Administrative Action
e) Social Action Litigation or Social Interest Litigation.
i) Locus Standi
g) Prospective Overruling and Judicial Restrain____________________3
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Module – VI Indian Legal System (6 pgs)…………………………………….51

a) Indian Court Structure
b) Supreme Court of India (Jurisdiction) ______________________0.30

Module – VII Legal Research (2 pgs)…………………………………………57

a) Importance of Legal Research
b) Legal Research: Techniques and Ideas
c) Citations______________________________________________0.20
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LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM

Module – I Nature and Function of Law

Unit-I
d) Meaning and Definition of Law
e) Function and Purpose of Law
f) Classification of Law
i) Public and Private Law
ii) Substantive and Procedural Law
iii) Municipal and International Law

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 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. 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”.
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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”.
Imperitive theory of law by Austin: Law is the general command (Rules laid
down which have to be followed) of sovereign (Politically superior authority)
backed/enforced by a sanction (Penalties/punishments for violation).
3. Historical Definition:
Savigny says that law is not a body of rules set by a determined authority but is
rules 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 prophesy 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”.
Subject-matter of Law
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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. immunities form having existing legal situations altered;
5. means of achieving legal ends;
6. definitions;
7. location of legal relationships;
8. 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 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
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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
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.
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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, 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.
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.
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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.
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.
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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:
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.
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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
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.
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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 England 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 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.
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The Law of Evidence has a unique place. It is considered as both Substantive and
Procedural Law.
References:

Books:
2. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapter 10 (Unit I)).
3. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapters 2 & 5).
4. S.K. Mishra, Legal Language, Legal Writing & General English, (1 st ed.),
Allahabad Law Agency, (2008), ( Chapter 1 at p. 15-31).
5. S.N. Dhyani, Jurisprudence and Indian Legal Theory,Central Law Agency.
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Module – II Sources of Law

Unit-I
Sources of Law
i) Custom
ii) Precedent
iii) Legislation
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.
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Statute which is made with a view to consolidate already 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) 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 recognition as
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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, (1 st 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

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Unit-I
a) What is Statute Law?
b) Rules of Interpretation
c) Aid to Interpretation of Statutes

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 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

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If the precise words are plain and unambiguous, in our judgment, we are bound to
construe them in their ordinary sense, even though it do lead, in our view of the case, to
an absurdity or manifest injustice. According to R.W.M. Dias that 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
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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
enactment into the general system of law taking into account its policy. As such it is the
duty of the judge to make such 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:
2. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapter 9 p.195 - 214).
3. P.St.J. Langan, The Interpretation of Statute, (12th ed.), Lexis Nexis, (2004).
4. 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]

Module – IV Judgment Analysis and Precedent

 19

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 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 conflicting reasoning of the courts in
 20

different fact situation, the reasoning behind the decisions are 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 and 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;
(iv) citation of the case;
 21

(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 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 the role of protagonist
and discussion leader, asking questions of 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 well manner. 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 usually different. When
the case method is used as a teaching technique, examinations usually take the form of
 22

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 debate,
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 case under consideration.
These statements are often meant to clarify the legal principle which the judge proposes
to apply in his or her judgement. For this reason, obiter dicta often take the form of
 23

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 and obiter dicta is not always simple. When
questioned regarding the difference between ratio and obiter, 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 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:
 24

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.
 25

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 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
Goodhart’s Test and 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.
 26

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 before
reaching final decision; they therefore hold back (reserve) judgment until a later date. In
 27

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 12th 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 social security law cases.
However, traditionally, law reports remain in the hands of private publishers. Today, there
are numerous, often competitive, private publishers.
 28

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 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
 29

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.
The facts of cases usually vary in some way. Law is about life and life rarely
replicates itself.
 30

(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]
 31

Module – V Legal and Judicial Process

Unit-I
a) Parliamentary Procedure
b) Concept of Rule of Law
c) Doctrine of Separation of Power
d) Classification of Administrative Action
e) Rule Making Power of Administration (Delegated Legislation)
Unit-II
a) Judicial Activism
b) Legitimacy of Judicial Activism
c) Writ Jurisdiction (Supreme Court)
d) Judicial Review of Administrative Action
e) Social Action Litigation or Social Interest Litigation.
i) Locus Standi
f) 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, 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
 32

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:
“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

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.
3
Ibid at 196-197.
 33

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
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:

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.
7
Ibid at 9-13.
 34

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
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.

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.
 35

The Rule of Law Concept Map

 36

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 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.
 37

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 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).
 38

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.
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
 39

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 in all detail and once this situation is
grasped the dynamics of delegation easily follows:
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
 40

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.
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.
 41

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 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.
 42

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 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.

11
(1980) 4 SCC 382.
 43

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 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.
 44

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.
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
 45

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
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
 46

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 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.

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.
17
(20020 1 SCC 1.
 47

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 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

18
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1.
 48

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 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
19
AIR 1967 SC 1643.
20
AIR 1965 SC 845.
 49

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.
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]
 50

Module – VI Indian Legal System

a) Indian Court Structure
b) 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:

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:

 51

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 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
 52

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:
 53

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 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
 54

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, 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.
 55

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).
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).
 56

Module – VII 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.
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
 57

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).
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).
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Quotable Quotes

“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
“Where there are laws, he who has not broken them need not tremble.”
- Vittorio Alfieri, Virginia
“Law is king of all.”
- Henry Alford, School of the Hear
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
 59

References:
Books:
S.R. Myneni, Legal Research Methodology, (3rd ed.), Allahabad Law Agency, 2004
Compulsory Readings:
Books:
Granville Willains, Learning the Law.
Nomita Aggarwal, Jurisprudence (Legal Theory).
B.N.M. Tripathi, An Introduction to Jurisprudence and Legal Theory.
General Bibliography:
Benjamin N. Cardozo, ‘The Nature of Judicial Process’.
Andrew Goodman, ‘How Judges Decide Cases: Reading, Writing and Analysing
Judgements’, Universal Law Pub., 2009.
Essential Case Law:
Raj Kishore Jha v. State of Bihar, AIR 2003 SC 4664
Commissioner of Income Tax, Hyderabad v. P.J. Chemicals, 1994 Suppl. (3) SCC 535
Air India v. Narges Mirza, AIR 1981 SC 1829
Geeta Hariharan v. Reserve Bank of India, AIR 1999 SC 1149
Meera Mathur v. LIC 1992 (1) SCC 286
D.K.Basu v. State of West Bengal 1997 (1) SCC 417
Dwarka Prasad Agrawal v. B.D. Agrawal, AIR 2003 SC 2686
Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup & Sons, 1994 (6)
SCC 623
Shikhar Chand Falodia v. S.K. Sanganeria, AIR 2004 Gau. 19
Grandphone Company v. B.B. Pandey, AIR 1984 SC 667
Peoples Union for Civil Liberties v. Union of India, 1997 (1) SCC 301
Lachman v. Nand Lal, AIR 1914 Oudh 123
R.K. Tangkhul v. V.R. Simirei, AIR 1961 Manipur 1
Balusami v. Balkrishna, AIR 1957 Mad. 97
Tekaha A.O. v. Sakumeeran A.O., AIR 2004 SC 3674
Superintendent and Remembrancer of Legal Affairs West Bengal v. Corporation of
Calcutta, AIR 1967 SC 997
Nath Bros. Exim International Ltd. v. Best Roadways Ltd. 2000 (4) S.C.C. 553
State of Bihar v. Sonawati, AIR 1961 SC 221, 231
Samta Vedike v. State of Karnataka, 2003 CR.L.J. 1003 Kar. H.C.
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, 556