LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEM

Semester I
B.A.LL.B. (Hons.)

STUDY MATERIAL:
Module I Nature and Function of Law
Unit-I
a) Meaning and Definition of Law
b) Function and Purpose of Law
c) Classification of Law
i) Public and Private Law
ii) Substantive and Procedural Law
iii) Municipal and International Law
d) Harts Concept of Law and the Indian Constitution
(2002) 2 SCC (J) 1

Introduction:
Law, in its widest sense, means and involves a uniformity of behavior, a
constancy of happenings or a cause of events, rules of action, whether in the
phenomena of nature or in the ways 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 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.
According to Gray, The law of the State or of any organized body of men is
composed of the rules which the Courts, that is, the judicial organ of the body lays
down for the determination of legal rights and duties.
2. Positive Definition:
According to Austin, A law, in the strict sense, is a general command of the
sovereign individual or the sovereign body, issued to those in subjectivity and
enforced by the physical power of the State. According to Austin, law is the
aggregate of rules set by men as politically superior or sovereign to men as politically
subject. He says, A law is a command which obliges a person or persons to a course
of conduct.
3. Historical Definition:
Savigny says that law is not a body of rules set by a determined authority but
is rules 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 States 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

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
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.
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.
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.
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.
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.
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,
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rules relating to transfer of shares, issue of share-warrants to bearer, holding of

meetings, passage of resolutions, the issue of notices, rules and modes of surrender,
forfeiture of and lien over shares, and liquidation procedures. So also insolvency law
largely lays down procedural provisions.
The Law of Evidence has a unique place. It is considered as both Substantive
and Procedural Law.

Module II Sources of Law

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

materialize certain purposes. According to the purposes it is classified. A statute that
declares a new rule is called declaratory statute. Statute which seeks to alter common
law rule is known as remedial statute. Statute which seeks to alter earlier law is
known as amending statute. Statute which is made with a view to consolidate already
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

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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 mans 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 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.
Law as a discipline that keeps growing simultaneously with the developments in
the society has to be learnt continuously and consistently with the times.

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Module III Fundamentals of Statutory Interpretation

Unit-I
a) What is Statute Law?
b) Structure of Legislation (Education Act 1975 UK)
c) Rules of Interpretation

Introduction
Statutory interpretation is the process of interpreting and applying legislation.
Some amount of interpretation is always necessary when case involves a statute.
Sometimes the words of a statute have a plain and straightforward meaning. But in
most cases, there is some ambiguity or vagueness in the words of the statute that must
be resolved by the judge. To find the meanings of statutes, judges use various tools
and methods of statutory interpretation, including traditional canons of statutory
interpretation, legislative history, and purpose. In common law jurisdictions, the
judiciary may apply rules of statutory interpretation to legislation enacted by the
legislature or to delegated legislation such as administrative agency regulations.

What is Statute Law?

Statute is defined as law which is passed by the Parliament and the various
state legislatures. This statute is the basis for statutory law. The legislature passes
statutes which are later put into the central code of laws or pertinent state code of
laws. Statute law also includes local ordinances, which is a statute passed by a
government to guard areas not covered by central or state laws.
Statutory law or statute law is 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.

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Literal Rule or Plain Meaning Rule

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.

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Module IV Judgment Analysis and Precedent

Unit-I
a)
b)
c)
d)
e)

Case Law in the study of Legal Method

Studying Law under the Case Method
What is Precedent?
Determining the Ratio-decidendi of a Case
Understanding Law Reports

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.
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 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

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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.
.
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.

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Module V Legal and Judicial Process

Unit-I
a)
b)
c)
d)
e)

Parliamentary Procedure
Concept of Rule of Law
Doctrine of Separation of Power
Classification of Administrative Action
Rule Making Power of Administration (Delegated Legislation)

Unit-II
a) Judicial Activism- Justice M.N. Rao
b) Judicial Review of Administrative Action
c) Social Action Litigation (P.I.L.)
i) Locus Standi
d) Legitimacy of Judicial Activism
e) Competence of Two Judge Benches of Supreme Court to refer Cases to
Larger Benches- Dr. R. Prakash
f) Disciplining Division Benches of Two Judges of the Supreme CourtT.R. Andhyarjuna
g) Prospective Overruling and Judicial Restrain

Introduction
The first Parliament of India called the Provisional Parliament came into being
with the commencement of the Constitution and the Sovereign, Democratic and
Republic of India on 26th January, 1950. Thus the Parliament along with the
Constitution and the Republic have completed more than half-a-century of their life.
When India achieved its independence and the founding fathers sat down to
frame a Constitution, they adopted representative parliamentary democracy as the
model of polity most suited to Indias 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.

18

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 parallel and therefore one requiring fresh handling. Precedents
can guide and help but not dictate the precise decision or course of action. Every new
situation, the way it develops and the way it is handled, creates a new precedent and
in the long run may give birth to new rules and regulations. Thus, subtle changes in
Parliamentary procedure take place and new practices keep developing almost
constantly.

Concept of Rule of Law

The word rule comes from regle and law from lagu roughly translating
to supremacy of law.1
The basic function of rule of law is to ensure justice, peace and order in
society. It has the two following aspects:
i)

Substantive Content: This implies that the content of law should reflect the
basic standards of society, exhibit regularity and consistency and place the
human personality above all else. It should include freedom from
government intervention and right to minimum material means. Thus the
obligation of citizens to obey the law should arise out of its morally
justifiable nature.

ii)

Procedural Machinery: This includes legal institutions, procedures and

traditions all of which must pay attention to the judgment of individuals
and the values of society. The legislature, executive, judiciary and the legal
profession have a part to play.2

One definition of the rule of law is:

1

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

19

The idea of law based on respect for the supreme value of human
personality and all power in the state being derived and exercised in accordance with
the law.
Alternatively, it may be understood as:
The safeguards offered by principles, institutions and procedures, different weight
being attached to them in different parts of the world.3
The rule of law, comprising the principles of equality and due process, exists
in different forms in each country. It may be contained in the power of judicial review,
the separation of powers, the doctrine of ultra vires (prevents state organs from
proceeding beyond their scope), principles of equity and statutory interpretation.4
Origin
The concept of rule of law was first written by the Greek thinkers. Plato, in his
work The Laws writes In any great state, the law must be the ultimate sovereign,
and not any person whatsoever exhibiting a clear understanding of rule of law.
Aristotle too, in Politics says that the legislators 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

Ibid at 196-197.
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.
4

20

Later, in England, restitutionary measures were afforded to anyone affected by the

excessive and unlawful use of authority. It was also laid down that the state had to be
guided by reasonable standards and remain within legally prescribed limits.7

Albert Venn Dicey on the Rule of Law

In discussing the rule of law, the views of Albert Venn Dicey put forth in his
Introduction to the Law of the Constitution, are indispensable. His notions have
been debated and criticized by other authors and thinkers. To him the main
components of rule of law are:
i)

No one may be punished (either in body or goods) unless he has committed

a breach of law, this law having been established by the ordinary courts in
the ordinary legal manner.

ii)

There exists one law for all citizens and no one is above the law of the land.

iii)

The General principles laid out in the Constitution. He advocates that such
rights be guaranteed by an unwritten Constitution as in England where
fundamental rights have been set down over time through case law. This
way, these rights cannot be taken away even during an emergency because to
do so would require the destruction of the entire legal system.8
However the supremacy of the Parliament in England which takes away the

power of judicial review from the courts undermines the rule of law.9
.

Ibid at 9-13.
A. Appadorai, The Substance of Politics (11th ed., Madras: Oxford University Press, 1975) at 279-280.
9
Supra note 4, at 13-15.
8

21

The Rule of Law Concept Map

22

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

23

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
PowersThere would be an end of everything, were the same man or same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of individuals.
Through his doctrine Montesquieu tried to explain that the union of the
executive and the legislative power would lead to the despotism of the executive, for
it could get whatever laws it wanted to have, whenever it wanted them. Similarly the
union of the legislative power and the judiciary would provide no defence for the
individual against the state. The importance of the doctrine lies in the fact that it seeks
to preserve the human liberty by avoiding concentration of powers in one person or
body of persons.
The same was expounded by the Madison as- The accumulation of all powers,
legislative, executive and judicial, in the same hands whether of one, a few, or many
and whether hereditary, self-appointed or elective, may justly be pronounced the very
definition of tyranny.
Therefore, separation of powers doctrine acts as a check against Tyrannical rule.
The purpose underlying the separation doctrine is to diffuse governmental authority
so as to prevent absolutism and guard against arbitrary and tyrannical powers of the
state, and to allocate each function to the institution best suited to discharge it.

Classification of Administrative Action

Administrative action is a comprehensive term and defies exact definition. In
modern times the administrative process as a by-product of intensive form of
government cuts across the traditional classification of governmental powers and
combines into one all the powers which were traditionally exercised by three different
organs of the State. Therefore, there is a general agreement among the writers on
administrative law that any attempt of classifying administrative functions on any
conceptual basis is not only impossible but also futile. Even then a student of
administrative law is compelled to delve into the field of classification because the
present-day law especially relating to judicial review freely employs conceptual
24

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.

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
25

Delegated legislation is not a new phenomenon. Ever since the statutes came to
be made by Parliament, delegated legislation also came to be made by an authority to
which the power was delegated by Parliament. Going back into history one can find
the Statute of Proclamation, 1539 under which Henry VIII was given extensive
powers to legislate by proclamations. This proves the fact that there was and will
always be the need for delegated legislation. The exigencies of the modern State,
especially social and economic reforms, have given rise to delegated legislation on a
large scale, so much so that a reasonable fear arises among the people that they are
being ruled by the bureaucracy.
The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws;
as against this the total number of statutory orders and rules passed in the same period
was approximately 25,414. Corresponding figures for States and Union Territories are
not available, but the number of rules issued under the delegated powers may well be
astronomical.
The modern trend is that Parliament passes only a skeletal legislation. A
classical example may be the Imports and Exports (Control) Act, 1947 which contains
only eight sections to provide through the rule-making power delegated to them under
legislation and leaves everything to the administrative agencies and delegates the
whole power to the administrative agency to regulate the whole complex mechanism
of imports and exports. The examples may be multiplied. This trend brings us to the
need matrix of the phenomenon of delegated legislation or administrative rulemaking.
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

26

in all detail and once this situation is grasped the dynamics of delegation easily
follows:
1. Legislation on ever-widening fronts of a modern Welfare and Service State is
not possible without the technique of delegation. It is trite but correct to say
that even if today Parliament sits all the 365 days in a year and all the 24
hours, it may not give that quantity and quality of law which is required for the
proper functioning of a modern government. Therefore, delegation of rulemaking power is a compulsive necessity. It also gives an advantage to the
executive, in the sense that a Parliament with an onerous legislative time
schedule may feel tempted to pass skeleton legislation with the details to be
provided by the making of rules and regulations.
1. Today, legislation has become highly technical because of the complexities of
a modern government. Therefore, it is convenient for the legislature to confine
itself to policy statements only, as the legislators are sometimes innocent of
legal and technical skills, and leave the law-making sequence to the
administrative agencies.
2. Ordinary legislative process suffers from the limitation of lack of viability and
experimentation. A law passed by Parliament has to be in force till the next
session of Parliament when it can be repealed. Therefore, in situations which
require adjustments frequently and experimentation, administrative rulemaking 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.
27

5. Where government action involves discretion, i.e. expansion of public utility

services, administrative rule-making is the only valid proposition.
6. Today, there is a growing emergence of the idea of direct participation in the
structurisation of law by those who are supposed to be governed by it because
indirect participation through their elected representatives more often proves a
myth. Therefore, administrative rule-making is a more convenient and
effective way and provides for this participation.
One may go on multiplying the factors responsible for the growth of
administrative rule-making, yet the list may not be exhaustive. It will suffice to say
that the technique of administrative rule-making is now regarded as useful, inevitable
and indispensable.
However, one must not lose sight of the fact that though the technique of
administrative rule-making is useful and inevitable yet constitutional legitimation of
unlimited power of delegation to the executive by the legislature may, on occasion, be
subversive of responsible government and erosive of democratic order. At times the
legislature passes only skeletal laws without laying down even a policy in clear terms,
and leaves everything else to the discretion of the administrative agency. Therefore,
the administration armed with the law-making power threatens to overwhelm the little
man by trampling upon his liberty and property. The technocracy and the bureaucracy
which draft subordinate legislation are perhaps well-meaning and well-informed but
insulated from parliamentary audit and isolated from popular pressure and may,
therefore, make law which is socially less communicable, acceptable and effective.
Furthermore, if law-making is taken over by the government it may make its
administration by barrel of secretariat pen. Therefore, if the technique of
administrative rule-making is to serve its laudable task, the norms of the jurisprudence
of delegation of legislative power must be dutifully observed. These norms include a
clear statement of policy, procedural safeguards and control mechanisms.

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
28

denotes a Judge who is judge empowered by law to act judicially as a body, when
such judge or body of judges is acting judicially. The word Judiciary again is
explained to mean the Judges of a State Collectively.
The term judicial activism is explained in Blacks 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.10 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
10

(1980) 4 SCC 382.

29

an issue of public importance, the Court can still decide the issue even in the face of
loss of standing of the petitioners.
It is no denying the fact that today due to the intensive form of government,
there is a tremendous increase in the functions of the administration as a facilitator,
regulator and provider. Therefore, if these new-found powers are properly exercised
these may lead to a real socio-economic growth and if abused these may lead to a
totalitarian State. Against this backdrop the prime function of judicial review is to
check the abuse of administrative powers and to enforce accountability on the
operators of these powers.
The power of public law review is exercised by the Supreme Court and High
Courts through writs of certiorari, prohibition, mandamus, quo-warranto and habeas
corpus and also through the exercise of power under Articles 136 and 227 of the
Constitution.

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
30

and adjudicate upon the validity of such practice. Public Interest Litigation is,
therefore, the new device by which public participation in judicial review of
administrative action is being assured. It is also the new strategy through which access
to justice is being assured even to those who for any reason whatsoever not able to
approach the court to ventilate their grievances. Justice P.N. Bhagwati thought that it
was essentially a co-operative or collaborative effort on the part of the petitioner, the
State or the public authority and the court to secure observance of constitutional or
legal rights, benefits and privileges conferred upon the vulnerable sections of the
community and to reach social justice to them.

Legitimacy of Judicial Activism

It is significant to note that Supreme Court of India is most powerful apex
court in the world. Unlike the Supreme Court or the House of Lords in England or the
highest courts in Canada or Autralia, the Supreme Court of India can review even a
constitutional amendment and strike it down if it undermines the basic structure of the
Constitution. It can decide the legality of the action of the President of India under
article 356 of the Constitution whereby a state government dismissed. Through public
interest litigation, the Court has granted access to persons inspired by public interest
to invite judicial intervention against abuse of power or misuse or inaction of the
government. Not only was the requirements of locus standi liberalized to facilitate
access but the concept of justiciability was widened to include within judicial purview
actions or inactions that were not considered to be capable of resolution through
judicial process according to traditional notions of justiciability.
Judicial activism is not an aberration. It is an essential aspect of the dynamics
of a constitutional court. It is a counter-majoritarian check on democracy. Judicial
activism, however, does not mean governance by the judiciary. It also must function
within the limits of the judicial process. Within those limits, it performs the function
of legitimizing or, more rarely, stigmatizing the actions of the other organs of
government.
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
31

against any pressure. What sustains legitimacy of judicial activism is not its
submission to populism but its capacity to withstand such pressure without sacrificing
impartiality and objectivity. Courts must not only be fair, they must appear to be fair.
Such inarticulate and diffused consensus about the impartiality and integrity of the
judiciary is the source of the Courts 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,
32

three Judges, five Judges, or more, and therefore all the Judges do not become party to
each of the judgment pronounced by the Supreme Court of India. In view of the fact
that our Supreme Court sits in divisions, a practice developed to refer a case to a
larger Bench whenever a smaller Bench doubted the correctness of the law declared in
the earlier judgement. Further references may go to still larger Benches until the law
is settled by a larger Bench. For example, it can be seen as to how Keshavananda
Bharati case11 reached a Bench of thirteen Honble Judges. In Shakari Prasad Singh
Deo v. Union of India12 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 Rajasthan13 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
Punjab14 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 Sangh15 and
Pradip Chandra Parija v. Pramod Chandra Patnaik 16 have ruled that it was improper
for a Division Bench of two judges to refer the correctness of a judgement of a fiveJudge Bench for reconsideration by another Bench of five Judges as in Bharat
11

Keshavanada Bharati v. State of Kerala, (1973) 4 SCC 225.

AIR 1951 SC 458.
13
AIR 1965 SC 845.
14
AIR 1967 SC 1643.
15
(2001) 4 SCC 448.
16
(20020 1 SCC 1.
12

33

Petroleum case or for a Bench of two Judges to refer the correctness of a decision of
three Judges to a large Bench of five Judges as in Parija case.
According to these rulings, judicial discipline and propriety obliged a Bench
of two Judges to follow the judgement of larger Benches. However, it was ruled, that
if the two Judges concluded that the judgement of a larger Bench
is so very incorrect that in on circumstances can it be followed, the
proper course for it to adopt is to refer the matter before it to a Bench
of three learned Judges setting out, as has been done here, the reasons
why it could not agree with the earlier judgement. If, then, the Bench
of three learned Judges is incorrect, reference to a Bench of five
learned Judges is justified.17
(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 dont 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
17

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

34

it connotes that it should be up to the judges to decide which decision should be

affected retrospectively and which one should be adapted prospectively. This theory is
in total conflict with the Doctrine of Prospective Overruling.
The second aspect was propounded by Cardozo J. and learned Hand J. who
were strongly in support of the Doctrine of Prospective Overruling. According to
them if this doctrine is not given effect it will wash away the whole dynamic nature of
law, it will be against the concept of judicial activism. Cardozo J. was of the view that
the law should keep up with the changes occurring in the society, the law has to be
dynamic and not static. If in a new and changed society, the citizens are bound by an
old law it will lead to grave injustice. The Citizens lives are bound by the law of land
should be given laws according to changed needs. Therefore the doctrine of
Prospective Overruling is an important tool in the hand of judiciary to give fair and
timely justice to its citizens.
The concept of the Doctrine of Prospective Overruling has now been accepted
in its full form in India. This doctrine was for the first time applied in India Golak
Nath v. State of Punjab18. The court overruled the decisions laid down in Sajjan Singh
v. State of Rajasthan19 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
18
19

AIR 1967 SC 1643.

AIR 1965 SC 845.

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Constitution of India. It was further added that this doctrine is no where against the
Constitution and Articles 32, 141 and 142 of the Constitution of India. By not giving
retrospective effect to the above mentioned case the court certainly saved the parties
bound by it from a lot of chaos and injustice. It was also stated that giving or not
giving a retrospective effect to the overruled precedent is to be left on the learned
Judges depending on the facts of the case.
However now this situation has changed and this doctrine are applicable to
other statutes also, which again is a very dynamic step taken by the judiciary in order
to meet the ends of justice.

Module VI Legal Systems in the World

Unit-I
a)
b)
c)
d)
e)
f)
g)

The Court Structure of England and Wales

History of Common Law
Legal System in USA
Legal System in France
Canadian Legal System
Australian Legal/Judicial System
Russian Legal System

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

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

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maxims of equity give general guidelines to determine what should be regarded as

equitable or inequitable.
Statute Law
Legislation may be expressed in an act of Parliament or in a delegated
legislation.
Parliament is composed of the Queen, the House of Lords and the House of
Commons. Parliament is sovereign. A bill must pass through both houses, but by the
Parliamentary Act 1911, the Royal assent may be given to a bill which has not been
passed by the House of Lords.
Parliament may delegate the legislative power to any subordinate body. The
rules of Law can be established without time consuming procedures attending the
passage of a bill through Parliament. Delegated legislation must be intra vires, so
within the powers conferred by Parliament, or else it would be void.
European Economic Community
There are conflicts between Community Legislation and National Legislation:
Community Legislation prevails on National Legislation.
The Court Structure in England and Wales
English judicial order is composed of the Supreme Court and lower courts.
The Supreme Court of Judicature is made up of three different courts:
1) The High Court,
2) The Crown Court,
3) The Court of Appeal.
1) The High Court of Justice is composed of three divisions:
a) The Queens Bench Division:
The Queens Bench Division deals predominantly with civil action in contracts
and torts.
b) The Chancery division:
The Chancery Division is concerned with, inter alia: trusts, mortgages, issues
concerning Company law and intellectual property.
c) The Family division:
The Family division principally hears cases of divorce, adoption, as well as
matters affecting children.
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2) Crown Court:
It has jurisdiction over serious criminal offences.
3) Court of Appeal
The Court of appeal is an appellate jurisdiction within the Supreme Court of
Judicature.
The House of Lords
The appeal against decisions of the Court of Appeal is brought before the
appellate committee of the House of Lords. The appeal is not a right but it must be
granted. The House of Lords is the Supreme Court, also in civil matters, for England
and the rest of the United Kingdom.
Privy Council
It gives a ruling about appeals made against the decisions of the Supreme
Courts of the United Kingdom overseas territories or countries which are members of
the commonwealth and have accepted the jurisdiction of the Privy Council (Jamaica,
Gibraltar etc.).
Lower Courts
In civil matters, the Lower Courts are the County Courts which have an
important role in the administration of civil justice in England.
The High Court of Justice hears claims of less than 15000 pounds. Claims for
less than 500 pounds are normally subject to a procedure known as the small claims
track which is a swifter and cheaper means of resolving small disputes.
In criminal matters, summary offences are judged by magistrates, who are
laymen or women known as justice of the peace. They are not remunerated. However,
in London and other cities, justices of the peace have now been replaced by
professional full-time judges. The Judges are appointed by the Queen, on the
suggestion of the Lord Chancellor; they must have seven years practice as a Barrister
or Solicitor.
The Civil and Criminal Courts
There is a clear separation and distinction between civil courts, which settle
disputes between people (such as property division after a divorce), and criminal
courts that prosecute those who break the law. Crimes are categorized as minor
offences (misdemeanours) or serious violations of the law (felonies).
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Misdemeanours include offences such as dropping litter, illegal parking or jaywalking, and are usually dealt with by a fine without a court appearance. Felonies,
which include robbery and drug dealing, are tried in a court of law and those found
guilty are generally sentenced to prison. In many counties and cities, there are often
eccentric local laws (usually relating to misdemeanours rather than felonies).
People who commit misdemeanours may be issued a summons (unsuspecting
foreigners who violate local by-laws may be let off with a warning), while anyone
committing a felony is arrested. An arrest almost always involves being frisked for
concealed weapons, handcuffed and read your rights. You must be advised of your
constitutional rights when arrested. These include the right to remain silent, the right
to have a lawyer present during questioning, and the right to have a free courtappointed lawyer if you cannot afford one. You will be asked if you wish to waive
your rights. This is not recommended, as any statement you make can then be used
against you in a court of law.

Module VII Indian Legal System

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

Introduction
The Indian Legal System is one of the oldest legal systems in the entire history
of the world. It has altered as well as developed over the past few centuries to absorb
inferences from the legal systems across the world. The Constitution of India is the
fountainhead of the Indian Legal System. It demonstrates the Anglo-Saxon character
of judiciary which is basically drawn from the British Legal System.
The Primary Origins of Law:
40

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:

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.
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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 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:

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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
43

warranto and certiorari to enforce them. The Supreme Court has been conferred with
power to direct transfer of any civil or criminal case from one State High Court to
another State High Court or from a Court subordinate to another State High Court.
The Supreme Court, if satisfied that cases involving the same or substantially the
same questions of law are pending before it and one or more High Courts or before
two or more High Courts and that such questions are substantial questions of general
importance, may withdraw a case or cases pending before the High Court or High
Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act,
1996, International Commercial Arbitration can also be initiated in the Supreme
Court.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate
granted by the High Court concerned under Article 132(1), 133(1) or 134 of the
Constitution in respect of any judgement, decree or final order of a High Court in both
civil and criminal cases, involving substantial questions of law as to the interpretation
of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High
Court concerned certifies: (a) that the case involves a substantial question of law of
general importance, and (b) that, in the opinion of the High Court, the said question
needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the
Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an
accused person and sentenced him to death or to imprisonment for life or for a period
of not less than 10 years, or (b) has withdrawn for trial before itself any case from any
Court subordinate to its authority and has in such trial convicted the accused and
sentenced him to death or to imprisonment for life or for a period of not less than 10
years, or (c) certified that the case is a fit one for appeal to the Supreme Court.
Parliament is authorized to confer on the Supreme Court any further powers to
entertain and hear appeals from any judgement, final order or sentence in a criminal
proceeding of a High Court.
The Supreme Court has also a very wide appellate jurisdiction over all Courts
and Tribunals in India in as much as it may, in its discretion, grant special leave to
appeal under Article 136 of the Constitution from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any Court
or Tribunal in the territory of India.
44

The Supreme Court has special advisory jurisdiction in matters which may
specifically be referred to it by the President of India under Article 143 of the
Constitution. There are provisions for reference or appeal to this Court under Article
317(1) of the Constitution, Section 257 of the Income Tax Act, 1961, Section 7(2) of
the Monopolies and Restrictive Trade Practices Act, 1969, Section 130-A of the
Customs Act, 1962, Section 35-H of the Central Excises and Salt Act, 1944 and
Section 82C of the Gold (Control) Act, 1968. Appeals also lie to the Supreme Court
under the Representation of the People Act, 1951, Monopolies and Restrictive Trade
Practices Act, 1969, Advocates Act, 1961, Contempt of Courts Act, 1971, Customs
Act, 1962, Central Excises and Salt Act, 1944, Enlargement of Criminal Appellate
Jurisdiction Act, 1970, Trial of Offences Relating to Transactions in Securities Act,
1992, Terrorist and Disruptive Activities (Prevention) Act, 1987 and Consumer
Protection Act, 1986. Election Petitions under Part III of the Presidential and Vice
Presidential Elections Act, 1952 are also filed directly in the Supreme Court.
Under Articles 129 and 142 of the Constitution the Supreme Court has been
vested with power to punish for contempt of Court including the power to punish for
contempt of itself. In case of contempt other than the contempt referred to in Rule 2,
Part-I of the Rules to regulate Proceedings for Contempt of the Supreme Court, 1975,
the Court may take action (a) Suo motu, or (b) on a petition made by Attorney
General, or Solicitor General, or (c) on a petition made by any person, and in the case
of a criminal contempt with the consent in writing of the Attorney General or the
Solicitor General.
Under Order XL of the Supreme Court Rules the Supreme Court may review
its judgment or order but no application for review is to be entertained in a civil
proceeding except on the grounds mentioned in Order XLVII, Rule 1 of the Code of
Civil Procedure and in a criminal proceeding except on the ground of an error
apparent on the face of the record.
References:
Books:
1. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapters 4 (Unit II).
2. Arvind Datar, Commentary on the Constitution of India, (2nd edn.), Wadhawa,
Nagpur, (2007).

45

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).

46

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

47

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.

48