Beruflich Dokumente
Kultur Dokumente
Semester I
B.A.LL.B. (Hons.)
NAME OF THE COURSE TEACHER: Mr. Azim B. Pathan,
B.A., LL.B. (Gold Medalist),
LL.M. (Gold Medalist).
STUDY MATERIAL:
Module I Nature and Function of Law
Unit-I
a) Meaning and Definition of Law
b) Function and Purpose of Law
c) Classification of Law
i) Public and Private Law
ii) Substantive and Procedural Law
iii) Municipal and International Law
d) 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.
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
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.
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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
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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
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of India during the national movement. Hence, it is We the People of India who
have framed the general legal framework of our country and therefore feel under an
obligation to comply by it. The general legal framework is the source of validity or
the rule of recognition for other rules and governmental action. While the
Constitution has enough inbuilt flexibility to change itself to the changing needs, there
are certain minimal rules termed as basic structure whose sanctity has to be
respected as they comprise the basic framework or identity of our legal system.
As for the rules of adjudication, the Indian legal system contains a very
integrated judicial structure with the Supreme Court of India at the top. The Supreme
Court of India and High Courts of the States have the authority to interpret the
Constitution also. In the exercise of this power, while basing their judgments on
general principles, structure and aims of the Constitution, they have moved beyond
the open texture of law. A clear example of this is the replacement of procedure
established by law under Article 21 by the due process of law.
However, it is on the question of morality that the Indian legal system seems
to clearly disagree with Harts thinking. Thus, not only morality is explicitly used in
Articles 25 and 26, and implicitly in Article 19(1) (g), even while judging the validity
of particular laws against the Constitution of India the Court takes into account moral
principles. What is important here is not the actual decisions which can be either way,
given the fact that morality is largely subjective, but the consideration of moral
principles as part of constitutional values by the courts. This is clear from the views of
the judiciary on the two issues of restitution of conjugal rights and the right to die.
(Refer for details article by Sheela Rai, Harts Concept of Law and Indian
Constitution, (2002) 2 SCC (J) 1).
References:
Books:
1. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapter 10 (Unit I)).
2. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapters 2 & 5).
3. S.K. Mishra, Legal Language, Legal Writing & General English, (1 st ed.),
Allahabad Law Agency, (2008), ( Chapter 1 at p. 15-31).
4. S.N. Dhyani, Jurisprudence and Indian Legal Theory,Central Law Agency.
Article:
1. Harts Concept of Law and Indian Constitution, (2002) 2 SCC (J) 1.
Webliography:
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1. [http://www.articlesbase.com/law-articles/harts-concept-of-law-and-the-india
n constitution-905116.html]
[Hart and Indian Constitution]
declared legal rules is known as the consolidating statute. Lastly, a statute imposing
penalty is known as the Penal statute.
There is no uniformity in the structure and arrangements of the various parts
of a statute followed by various countries. However, every statute comprises formal
and material portions. The formal portion includes: (i) The long title, (ii) The
Preamble, (iii) The short title and (iv) commencement and extent clause. But the
material portion includes: (i) Definitions (ii) Operative sections, (iii) Procedural
provisions, (iv) Exceptions, (v) Provisions regarding delegated Legislation and (vi)
Repeal and Amendment clause.
Precedent
Judicial decisions form an important source of law. It was on the raw materials
of customs that the judges fashioned up rules of law. Like sculptors working on
marble, the judges worked on the raw materials of custom and thus made a valuable
contribution to the law of the land.
Precedents establish the law by the recognition and application of new rules by
the courts themselves in the administration of justice. Precedents produce case-laws.
Precedents denote the law made by a declaration and application thereof by the court
in a decision in the course of its administration of justice.
Generally, a judge is bound to decide all the cases taken to him for
adjudication. He cannot leave a case undecided on the ground that there is no law
covering the point. If the question before him is not covered by any existing law, he
will have to decide it on principle, that is to say, he has to formulate the legal
principle relevant to the case in accordance therewith. The principle that he
formulated for deciding the case will be law for subsequent like cases. Again,
everything said in a judgment is not reckoned as law. Only the ratio decidendi therein
forms law.
Custom
Law based on custom is known as customary law. Custom is one of the most
fruitful sources of law. Custom is to society what law is to the State. Each is the
expression and realization to the measure of 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
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recognition as law, custom must satisfy the following conditions: (i) Certainty, (ii)
Conformity with statute law, (iii) Consistency with other customs, (iv) Continuity, (v)
Immemorial antiquity, (vi) Observance as of right, (vii) Peaceableness, and (viii)
Reasonableness.
(Students are advised to refer for details the text books and articles given in Module
II).
References:
Books:
1. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapters 8, 9, 10, 11).
2. S. N. Dhyani, Jurisprudence & Indian Legal Theory, Central Law Agency
(Chapters 13, 14).
3. S.K. Mishra, Legal Language, Legal Writing & General English, (1 st ed.),
Allahabad Law Agency, (2008), ( Chapter 1 at p. 18-21)
4. S.R. Myneni, Legal Language and Legal Writing, (1st ed.), Asia Law House,
Hyderabad, 2008 (Chapter 10 p.176-182).
Article:
1. M.P. Jain, Custom as a Source of Law in India, Jaipur Law Journal 1963, p.
96.
Law as a discipline that keeps growing simultaneously with the developments in
the society has to be learnt continuously and consistently with the times.
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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.
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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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
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
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enactment into the general system of law taking into account its policy. As such it is
the duty of the judge to make such construction of a statute as shall suppress the
mischief and advance the remedy. In other words, it is a sound rule of interpretation
that a statute should be so constructed as to prevent the mischief and advance the
remedy according to the real intention of the makers.
All the above three rules have resulted from two main approaches. In literal or
plain meaning rule and golden rule it is referential approach and in mischief rule it is
purposive approach. However, ordinarily, the courts must follow literal unless there
are adequate reasons to follow the logical interpretation.
(For details refer the text books given in Module III).
References:
Books:
1. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapter 9 p.195 - 214).
2. P.St.J. Langan, The Interpretation of Statute, (12th ed.), Lexis Nexis, (2004).
3. William N. Eskridge, Jr., Dynamic Statutory Interpretation, Universal Law
Publishing Co. Pvt. Ltd., (2000).
Webliography:
1. [http://www.google.co.in/]
[Statute Law]
2. [http://en.wikipedia.org/wiki/Statutory_law]
[Statutory Law]
3. [http://books.google.co.in/rulesofinterpretation]
[Rules of Interpretation]
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Introduction
Cases are the basic tools of the lawyers. In counseling, a lawyer reads cases in
order to determine what the legal position of his client is. He wants to know whether
anybody in a similar position has ever been involved in litigation and if so how did
the court evaluate his conduct? In litigation a lawyer uses cases to convince the court
that the position favourable to his client has already been accepted by previous
decisions. Thus lawyers sometimes use cases to find out what are the legal rules
which courts will apply and sometimes to influence the making of the rules.
When a case is decided the judge generally writes an opinion announcing the
legal rules on the basis of which he has decided the claim. These legal rules are often
not very clear. They were applied with reference to a particular context and in
different context they mean the very same thing. These rules are classified and
perfected in subsequent cases. The reasoning of the decision-maker acts as a
precedent to decide subsequent similar claims. Though in theory it is possible to
imagine an identical case, in practice such occurrences are rare. When a case arises
with similar fact situations the counsel again tries to discover a fact or tries to point
out the change of circumstances under which the rule was evolved so as to suggest
that the cases are really quite different. This differentiating process helps to evolve
certain norms which when crystallize take shape of legal rules.
It might appear that a person who wants to know the law, need only to read
cases and accept their reasoning, but the law is always changing. A person who not
only wants to know the law as it is, but also wants to know how it is likely to change
has to critically study the cases, and while going through the reasoning must try to
know to what extent the reasoning was correct in the context in which the claims had
arisen and were decided. Thus, a critical analysis of cases, comparison of the
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conflicting reasoning of the courts in different fact situation, the reasoning behind the
decisions are matters which the students must try to learn from the beginning of his
study of the law.
(ii)
(vi) judgment
(vii) procedure by which case came before court or tribunal (if original
jurisdiction so state)
This may also include(a)
(b)
(c)
(viii) the facts before court for decision. In setting out complicated facts adopt
chronological order;
(ix) the legal question or questions or issues involved;
(x)
(xi) decision;
(xii) reasons for decision and
(xiii) reasons for dissenting opinions, if any.
usually different. When the case method is used as a teaching technique, examinations
usually take the form of hypothetical fact situations i.e. a hypothetical case, calling
upon the student to decide the case and give his reasons or calling upon the student to
play the advocates role and write the best possible arguments for one side or another
of the case.
Each student has his own unique way of studying, which suits him and is most
productive for him. He will adapt his study habits for the case method. This study
method can be divided into five parts: (i) study before class; (ii) classroom note
taking; (iii) review and study after class; (iv) preparing for the examination; and (v)
taking the examination.
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
is a congenial idiot. Although intended humorously, this remark has a good measure
of truth.
Ratio decidendi and Obiter dicta
1. A ratio decidendi is not an abstract principle, to be applied in a deductive fashion
to a later case. Instead the ratio is a ruling on a point of law in relation to a
specific case.
2. Only the ratio binds an inferior court. Cases themselves do not bind.
3. If the court is not required to make a ruling on a point of law, its decision will not
give rise to a ratio.
4. There is no requirement for each judgement to contain a single ratio and no
more. Multiple ratios are quite normal.
5. Not every statement of law contained in a decision is necessarily ratio or obiter.
A judge may refer to a principle only to express his or her disagreement or for
the sake of completeness. For a statement of law to be ratio or obiter, the judge
must express his or her explicit agreement with the principle.
6. These are not mere niceties of legal doctrine. Bearing these points in mind will
help you when you come to identifying the ratio in a judgement.
Finding the Ratio decidendi
Identifying the ratio in a judgement is frequently difficult. Judges are under no
obligation to label the different parts of their judgement as ratio or obiter. In most
cases, you need to read the entire judgement to determine the ratio.
Some of the reasons for this include:
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1) Length of Judgements: Many judgements are extremely lengthy and are written
in dense, legal language. The ratio may not be expressed in a single sentence or
even a single passage.
2) The Lack of an Explicit Ratio: The extreme example of this is the judgement in
Raffles v Wichelhaus ([1864] 2 H&C 906). This famously consisted of a single
sentence: There must be judgement for the defendants.
3) The Existence of Multiple Lines of Argument: Some arguments will be ratio,
others will be obiter and others might be neither.
4) Uncertainties regarding which facts were Material to the Judgement: Judges
sometimes fail to indicate which facts are significant and which are not, making
it difficult to determine the appropriate level of generality at which a ratio should
be stated.
In some instances, a case will establish a legal principle which is refined over
time, being broadened or narrowed as the result of successive judgements.
Ratio in Appellate Decisions
The problems associated with identifying the ratio in the case decided by an
individual judge are multiplied in the case of appellate decisions. Most appellate
courts sit with an uneven number of judges. To discover the ratio of an appellate
decision, you need to determine the ratio in the case of each individual judgement.
The rule is that only the ratios contained in the majority judgements need to be
considered. If a majority of judges agree on the same reasoning, you have identified a
single ratio. Otherwise, there might be multiple ratios, or even none.
Finding the Ratio
There are a number of rules of thumb that you can use to determine the ratio
decidendi. These include:
1. Distinguishing the facts which the court regarded as material from those which
appeared unimportant.
2. Discovering the precedents applied. These will provide an indication of the
courts approach.
3. In deciding the ratio, restrict your analysis to the opinions of the majority judges.
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4. Read subsequent decisions to find how the decision has been interpreted. The
ratio that becomes recognised as a rule of law may not be the ratio that apparent
in the original judgement.
The last point is one that is sometimes overlooked. In many instances, the ratio
in an individual judgement is less important than the legal principle for which a line
of cases can be cited as authority.
When reading a judgement, consider it at several levels. Apart from reading
the decision for what it actually says, read it also in terms of its subsequent reception.
Assess the arguments of the judges and the advocates in the context both of the case
and the future development of the law. If you are building an argument on the basis of
a particular case, it is often dangerous to look at the case in isolation.
In finding the ratio, it is often useful to consider the way in which judgements
are written. Although there is no standard model, they often follow a broad pattern. In
most cases, the judgement is divided into three sections:
1. the facts agreed or proven
2. the range of applicable legal principles
3. the application of the appropriate principle to the facts.
There are a number of formal tests that have been devised to assist in
discovering the ratio. Two of the best known were developed by United States jurists:
these are Goodharts Test and Wambaughs Test.
Goodharts Test
Goodhart proposed these rules for finding the ratio decidendi:
1. The principle of a case is not found in the reasons given in the opinion.
2. The principle is not found in the rule of law set forth in the opinion.
3. The principle is not necessarily found by a consideration of all the
ascertainable facts of the case, and the judges decision.
4. The principle of the case is found by taking account (a) of the facts treated by
the judge as material, and (b) his decision as based on them.
5. In finding the principle it is also necessary to establish what facts were held to
be immaterial by the judge, for the principle may depend as much on
exclusion as it does on inclusion.
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the proposition is not governed by all the facts, but by the material facts.
Wambaugh recommends that you take the following steps if you think you
25
before reaching final decision; they therefore hold back (reserve) judgment until a
later date. In criminal cases after the jury has reached a verdict in the trial court, the
judge may sentence immediately or call for reports and sentence at a later date. What
judges say in their judgments is of immense importance, not only for the litigants, but
for the development of the law.
The English legal system is unique in its public insistence that cases must be
decided in keeping with the reasoning process used by judges reaching decisions in
similar previous cases of the same court or higher. This process of deciding in
accordance with past judicial reasoning in similar cases is reasoning in accordance
with the doctrine of precedent.
The concept of keeping to past decisions is also tied to rules concerning the
hierarchy of English and Indian courts. Trial courts are the bottom of the hierarchy
and appeal courts are at the top.
The House of Lords, as the highest court of appeal, is often referred to as the
apex of the court hierarchy. The further up the hierarchy one goes, the fewer cases
the court deals with and the longer cases will last. Many legal systems throughout the
world have a rule of thumb adherence to the doctrine of precedent. However, few
keep to the concept of binding precedent as rigidly as the English legal system.
Indeed, it has been said that it is more difficult to get rid of an awkward decision in
England than it is anywhere else in the world.
The Relationship between Law Reporting and the Doctrine of Precedent
The only way of being able to keep successfully to the doctrine of binding
precedent is to have a reliable system of law reporting. The competent production of
volumes of reports of past cases is indispensable to the operation of the doctrine.
Reliable law reports have only been available in England since 1865 although there is
a range of law reports going back to 12 th century. However, the accuracy of reports
pre-dating the setting up of the Incorporated Council of Law Reporting in 1865
cannot be guaranteed.
Surprisingly, there are no official, authoritative series of law reports in
England to equate with the Queens Printers copy of an Act of Parliament. Her
Majestys Stationery Office is responsible for publishing revenue, immigration and
26
social security law cases. However, traditionally, law reports remain in the hands of
private publishers. Today, there are numerous, often competitive, private publishers.
Although there are no official series of law reports, the courts do respect some
reports more than others. A Long established, conventional rule is that a law report, if
it is to be accepted by the relevant court as an authority, must be prepared by and
published under the name of a fully qualified barrister.
Reports existing in the yearbooks cover the period from the late 12th century to
the early 16th century. However, it is not always possible to discover if the report is of
an actual case or a moot (an argument contest between lawyers). This makes them an
unreliable source. Also, the detail that was given and the quality of the reports vary
considerably. Some reports record outcome, but not facts, others record facts and
outcome, but give no reasoning process. Reports also exist in the Nominate (named)
reports dating from the late 15th century to 1865. By the 19th century, a court
authorized reporter was attached to all higher courts and their reports were published
in collected volumes again by name of reporter.
By 1865, there were 16 reporters compiling and publishing authorized reports.
They were amalgamated into Incorporated Council of Law Reporting and the reports
were published in volumes known as the Law Reports. These reports are checked by
the judges of the relevant case prior to publication and a rule of citation has developed
that if a case is reported in a range of publications, only that version printed in the
Law Reports is cited in court. The greater accuracy of modern reporting, and the
vetting by judges, necessitates longer delays before the cases are published. Also, the
Law Reports only cover 7% of the cases in the higher courts in any given year.
Interesting issues are:
1. Who selects which cases to report?
2. How are they selected?
Editors select the cases for inclusion for the publishers. These are highly
trained lawyers, well acquainted with precedent and the likely importance of cases.
During the past 100 years publishers of law reports have been generalists or
specialists. Some law reports are annotated, particularly for the use of practitioners,
others left without annotations, introductions, etc. In addition to reported cases, the
Supreme Court Library contains thousands of files of unreported cases. In 1940, the
27
Lord Chancellors Department prepared a report: The Report of the Law Reporting
Committee. The Committee considered that, after editors had made their choices,
What remains is less likely to be a treasure house than a rubbish heap in which a
jewel will rarely, if ever, be discovered.
Of course, today, there is a vast range of electronic retrieval systems, which
contain thousands of details of unreported cases. This has caused its own problems
and there was a legitimate concern that courts would be inundated with cases that did
not really contain any new law, but which had been retrieved from electronic sources.
In the case of Roberts Petroleum Ltd. V. Bernard Kenny Ltd. (1983), the House of
Lords took the step of forbidding the citation of unreported cases of the civil division
of the Court of Appeal without special leave. The rule remains, however, that to be an
accepted version that can be quoted in court the report must have been prepared and
published by a barrister.
When law students read law reports they must ask:
(a) Is this report the most authoritative version available?;
(b) Are there fuller versions?;
(c) If unreported, does this case add to the law?
Theoretical Dimensions of the Doctrine of Precedent
Many theorists and practitioners have attempted, over the years, to give
precise definitions of the English doctrine of precedent, unfortunately for law
students, there are no simple shortcuts to understanding the practical everyday
working of the doctrine of precedent.
However, a few theoretical ground rules can be established, which at least
place its operation within a context:
(a) Judges in the higher courts must follow previous decisions of their own court
or that of a higher court if the case was similar;
(b) Since a Practice Statement by the Lord Chancellor in 1966, judges in the
House of Lords have the freedom to decline to follow their own previous
decisions.
Much depends on the definition of similar. How similar must a previous case
be before it becomes a precedent to be followed in a current case? Notice, again, how
everything turns on language and the meaning of words.
28
The facts of cases usually vary in some way. Law is about life and life rarely
replicates itself.
(a) Must the law be similar now as then?
(b) What happens if there are small differences?
(c) What if there are a range of small differences is the case sufficiently similar?
There are no definitions of similar for the purposes of the doctrine and this is
where the judge can bring subjective influences into the decision making processes. In
addition, how can the reasons for the case can be extracted? Similar cases must be
decided in accordance with the same reasoning process.
The actual doctrine as it has developed refers to keeping to the reasons for
deciding past cases.
Wambaugh, a theorist working in America in the late 19th century, suggests
that one way of ascertaining the reason for the decision (ratio decidendi) is to look for
a general rule of law in the judgments and test whether it is foundational for deciding
the case by translating it into the negative form and seeing if the case would then have
been decided differently.
(For details refer text books given in Module IV)
References:
Books:
1. V.D. Mahajan, Jurisprudence and Legal Theory, (5th ed.), Eastern Book Co.,
Lucknow, 2005 (Chapter 10 p.115 - 253).
2. Sharon Hanson, Legal Method, Cavendish Publishing Ltd. (Chapter 4 at p. 59
- 98).
3. A. Lakshminath, Precedent in the Indian Legal System, Eastern Book
Company, 1990 (Chapter 1).
4. Andrew Goodman, How Judges decide Cases, Universal Law Publishing Co.,
(2009).
5. Edgar Bodenheimer, Jurisprudence, Universal Law Publishing Co. Pvt. Ltd.,
2006 (Chapter 18).
Webliography:
1. [http://www.google.co.in/]
[Meaning of Precedent]
2. [http://www.rnd.in/gs/?q=Wikipedia]
[Precedent]
3. [http://en.wikipedia.org/wiki/Law_report]
[Law Report]
29
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.
Parliamentary procedure is intended to facilitate debate and discussion on
problems and perceptions of the people. Parliamentary institutions are ever evolving,
30
ever in the making. Though the basic principles may remain the same, parliamentary
techniques, practices and procedures undergo changes, gradually adapting themselves
to the changing needs of the times. Parliamentary system is said to be based heavily
on past precedents. But, in actual practice, it is extremely difficult to find exact
precedents. Every difficult problem that develops in Parliament seems to be entirely
different and without parallel and therefore one requiring fresh handling. Precedents
can guide and help but not dictate the precise decision or course of action. Every new
situation, the way it develops and the way it is handled, creates a new precedent and
in the long run may give birth to new rules and regulations. Thus, subtle changes in
Parliamentary procedure take place and new practices keep developing almost
constantly.
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)
Prof. P. Surianarayanan, Development of Rule of Law (1st ed., Madurai: Madurai Kamraj University,
1983) at 3.
2
N. S. Marsh, International Commission of Jurists - The Rule of Law in a Free Society (Switzerland,
1959) at 191.
31
The idea of law based on respect for the supreme value of human
personality and all power in the state being derived and exercised in accordance with
the law.
Alternatively, it may be understood as:
The safeguards offered by principles, institutions and procedures, different weight
being attached to them in different parts of the world.3
The rule of law, comprising the principles of equality and due process, exists
in different forms in each country. It may be contained in the power of judicial review,
the separation of powers, the doctrine of ultra vires (prevents state organs from
proceeding beyond their scope), principles of equity and statutory interpretation.4
Origin
The concept of rule of law was first written by the Greek thinkers. Plato, in his
work The Laws writes In any great state, the law must be the ultimate sovereign,
and not any person whatsoever exhibiting a clear understanding of rule of law.
Aristotle too, in Politics says that the 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
32
ii)
There exists one law for all citizens and no one is above the law of the land.
iii)
The General principles laid out in the Constitution. He advocates that such
rights be guaranteed by an unwritten Constitution as in England where
fundamental rights have been set down over time through case law. This
way, these rights cannot be taken away even during an emergency because to
do so would require the destruction of the entire legal system.8
However the supremacy of the Parliament in England which takes away the
power of judicial review from the courts undermines the rule of law.9
The International Commission of Jurists
The International Commission of Jurists have held numerous conferences on
the rule of law attempting to provide a clear and comprehensive definition of rule of
law and better measures of implementation in the context of protecting human rights.
The first congress met in 1955 at Athens and gave effect to the Act of Athens.
This was followed by conferences at Delhi (January 1959), Lagos and Nigeria in
Africa (1961), Rio de Janeiro (1962), Bangkok (1965) and Colombo (1966).10
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.
10
International Commission of Jurists, The Rule of Law and Human Rights: Principles and Definitions
(Geneva, 1966) at 1-4.
8
33
34
35
that each organ should be independent of the other and that no organ should perform
functions that belong to the other.
Montesquieu in the following words stated the Doctrine of Separation of
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.
37
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.
39
Judicial Activism
The term Judicial is an adjective from French word Judex meaning a Judge, it
means or pertaining or appropriate to the administration of justice or courts of justice
40
41
since the petition has become infructuous, the Court has no power to continue with the
appeal. Rejecting the contention the Apex Court held that since the petition involves
an issue of public importance, the Court can still decide the issue even in the face of
loss of standing of the petitioners.
It is no denying the fact that today due to the intensive form of government,
there is a tremendous increase in the functions of the administration as a facilitator,
regulator and provider. Therefore, if these new-found powers are properly exercised
these may lead to a real socio-economic growth and if abused these may lead to a
totalitarian State. Against this backdrop the prime function of judicial review is to
check the abuse of administrative powers and to enforce accountability on the
operators of these powers.
The power of public law review is exercised by the Supreme Court and High
Courts through writs of certiorari, prohibition, mandamus, quo-warranto and habeas
corpus and also through the exercise of power under Articles 136 and 227 of the
Constitution.
(For more details refer the text book of I.P. Massey, Administrative Law, Eastern Book
Company, (7th ed.), 2008, p. 403- 422)
42
The judiciary is the weakest organ of the State. It becomes strong only when
people repose faith in it. Such faith of the people constitutes the legitimacy of the
Court and of judicial activism. Courts have to continuously strive to sustain their
legitimacy. They do not have to bow to public pressure, rather they have to stand firm
against any pressure. What sustains legitimacy of judicial activism is not its
submission to populism but its capacity to withstand such pressure without sacrificing
impartiality and objectivity. Courts must not only be fair, they must appear to be fair.
Such inarticulate and diffused consensus about the impartiality and integrity of the
judiciary is the source of the 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.
The Supreme Court of United States of America consists of nine judges and
every Judge of that court is a party to each of its judgment. But the same is not the
case in our Supreme Court. The Supreme Court of India consists of twenty-six Judges
including the Chief Justice and sits in Division Courts comprising of two Judges,
three Judges, five Judges, or more, and therefore all the Judges do not become party to
each of the judgment pronounced by the Supreme Court of India. In view of the fact
that our Supreme Court sits in divisions, a practice developed to refer a case to a
larger Bench whenever a smaller Bench doubted the correctness of the law declared in
the earlier judgement. Further references may go to still larger Benches until the law
is settled by a larger Bench. For example, it can be seen as to how Keshavananda
Bharati case12 reached a Bench of thirteen Honble Judges. In Shakari Prasad Singh
Deo v. Union of India13 a five Judge Constitution Bench held that an amendment of
the Constitution made under Article 368 is not law within the meaning of Article
13(2) of the Constitution. In Sajjan Singh v. State of Rajasthan14 another five-Judge
Bench also took the same view. These two decisions were doubted and the correctness
of these decisions was considered by an eleven-Judge Bench in Golak Nath v. State of
Punjab15 wherein by a majority of 6:5, the eleven-Judge Bench prospectively
overruled Shankari Prasad and Sajjan singh decisions and it was held that an
amendment of the Constitution is law within the meaning of Article 13(2) of the
Constitution. After this decision, Articles 13 and 368 were amended so as to exclude
the amendments of the Constitution from the purview of Article 13(2). The
correctness of Golak Nath case and the validity of the Constitution (Twenty-fourth
Amendment) Act, 1971 were considered by a larger Bench of thirteen Judges in
Keshavanand Bharati v. State of Kearala wherein Golak Nath case was overruled and
the doctrine of basic structure was propounded.
(For further details refer articles given in Module V).
45
Pradip Chandra Parija v. Pramod Chandra Patnaik 17 have ruled that it was improper
for a Division Bench of two judges to refer the correctness of a judgement of a fiveJudge Bench for reconsideration by another Bench of five Judges as in Bharat
Petroleum case or for a Bench of two Judges to refer the correctness of a decision of
three Judges to a large Bench of five Judges as in Parija case.
According to these rulings, judicial discipline and propriety obliged a Bench
of two Judges to follow the judgement of larger Benches. However, it was ruled, that
if the two Judges concluded that the judgement of a larger Bench
is so very incorrect that in on circumstances can it be followed, the
proper course for it to adopt is to refer the matter before it to a Bench
of three learned Judges setting out, as has been done here, the reasons
why it could not agree with the earlier judgement. If, then, the Bench
of three learned Judges is incorrect, reference to a Bench of five
learned Judges is justified.18
(For more details refer to article given in Module V).
(20020 1 SCC 1.
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1.
46
Decisis. The doctrine of Stare Decisis means to stand by precedent and not to disturb
the settled point of law; the logic behind this doctrine is that people should not get
confused as to what is legal and what is illegal. The advocates should be able to
clarify to their clients the exact law and not get confused themselves. So accordingly
it connotes that it should be up to the judges to decide which decision should be
affected retrospectively and which one should be adapted prospectively. This theory is
in total conflict with the Doctrine of Prospective Overruling.
The second aspect was propounded by Cardozo J. and learned Hand J. who
were strongly in support of the Doctrine of Prospective Overruling. According to
them if this doctrine is not given effect it will wash away the whole dynamic nature of
law, it will be against the concept of judicial activism. Cardozo J. was of the view that
the law should keep up with the changes occurring in the society, the law has to be
dynamic and not static. If in a new and changed society, the citizens are bound by an
old law it will lead to grave injustice. The Citizens lives are bound by the law of land
should be given laws according to changed needs. Therefore the doctrine of
Prospective Overruling is an important tool in the hand of judiciary to give fair and
timely justice to its citizens.
The concept of the Doctrine of Prospective Overruling has now been accepted
in its full form in India. This doctrine was for the first time applied in India Golak
Nath v. State of Punjab19. The court overruled the decisions laid down in Sajjan Singh
v. State of Rajasthan20 and Shakari Prasad v. Union of India. The honorable Judges of
Supreme Court of India laid down its view on this doctrine in a very substantive way,
by saying The doctrine of prospective overruling is a modern suitable for a fast
moving society. It does not do away with the doctrine of stare decisis but confines it
to past transactions. While in strict theory it may be said that doctrine involves the
making of law, what the court really does is to declare the law but refuse to give
retroactivity to it. It is really a pragmatic solution reconciling the two conflicting
doctrines, namely, that a court finds the law and that it does make the law but restricts
its operation to the future. It enables the court to bring about a smooth transaction by
19
20
47
correcting its errors without disturbing the impact of those errors on past transactions.
By the application of this doctrine the past may be preserved and the future protected.
However the Supreme Court gave certain restrictions to the usage of the
Doctrine of Prospective Overruling. The court said that this doctrine can only be used
by the apex court and it would be applicable only to the laws and cases relating to the
Constitution of India. It was further added that this doctrine is no where against the
Constitution and Articles 32, 141 and 142 of the Constitution of India. By not giving
retrospective effect to the above mentioned case the court certainly saved the parties
bound by it from a lot of chaos and injustice. It was also stated that giving or not
giving a retrospective effect to the overruled precedent is to be left on the learned
Judges depending on the facts of the case.
However now this situation has changed and this doctrine are applicable to
other statutes also, which again is a very dynamic step taken by the judiciary in order
to meet the ends of justice.
(For details refer the case Golak Nath v. State of Punjab, AIR 1967 SC 1643).
References:
Books:
1. S.P. Sathe, Administrative Law, (7th ed.), Lexis Nexis, 2007 (Chapter 2, 4)
2. Subhash C. Kashyap, Parliamentary Procedure, Universal Law Publishing Co.
Pvt. Ltd. Vol. 1, 2000, ( at Chapter 15, p. 817).
3. Noor Mohammad Bilal, Dyanamism of Judicial Control and Administrative
Adjudication, Deep & Deep Publication, (2004).
4. S.P. Sathe, Judicial Activism in India, Oxford University Press, 2008 (Chapter
VII).
5. I.P. Massey, Administrative Law, Eastern Book Company, (7 th ed.), 2008,
(Chapters 2, 3 at p. 48-60, 4 at p.84 97, 8 at p. 403, 9).
6. M.P. Jain, Indian Constitutional Law, (5th ed.), Wadhawa, Nagpur, (2004).
Articles:
1. M.N. Rao, Judicial Activism, 1997 SCC Vol. 8 at p. 1.
2. R. Prakash, Competence of Two Judges Benches to refer Cases to Larger
Benches, 2004 (6) SCC (J), 75.
3. T.R. Andhyarjuna, Disciplining Division Benches of Two Judges of the
Supreme Court, 2004 (6) SCC (J) 85.
Cases:
1. S.L. Kapoor v. Jagmohan, (1980) 4 SCC 382.
2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
3. Sheela Barse v. Union of India, AIR 1988 SC 2211.
4. State of Punjab v. G.S. Gill, (1997) 6 SCC 129.
5. State of Punjab v. Tehal Sighn, (2002) 2 SCC 7.
6. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
48
Webliography:
1. [http://www.goforthelaw.com/articles/fromlawstu/article3.htm]
[The Rule of Law ]
2. [http://nigerianlawguru.com/articles/jurisprudence/JUDICIAL
%20ACTIVISM.pdf]
[Judicial Activism]
3. [http://www.naavi.org/praveen_dalal/judicial_review_aug06_04.htm]
[Judicial Review]
4. [http://www.itatonline.org/articles_new/?p=50]
[Judicial Activism]
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.
The Court Structure of England and Wales
First to understand the court structure of England and Wales we must
understand the English Law and Englands and Wales Legal System. The expression
English Law means the Law governing England and Wales. The sources of English
49
Law are Common Law, Equity, Legislation and since 1973, European Economic
Committee (EEC) Legislation.
Common Law
The Common Law comes from customs and habits applied by English courts.
Local customs which varied from one locality to another were the sources of decision
by local courts.
After the Norman Conquest in 1066, these customs were brought into a
uniform system. It took the name of Common Law because it was common to all men
within the 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.
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For example, at Common Law, the normal remedy was damages. However in
Equity, remedies are discretionary, according to the conduct of the parties. So,
maxims of equity give general guidelines to determine what should be regarded as
equitable or inequitable.
Statute Law
Legislation may be expressed in an act of Parliament or in a delegated
legislation.
Parliament is composed of the Queen, the House of Lords and the House of
Commons. Parliament is sovereign. A bill must pass through both houses, but by the
Parliamentary Act 1911, the Royal assent may be given to a bill which has not been
passed by the House of Lords.
Parliament may delegate the legislative power to any subordinate body. The
rules of Law can be established without time consuming procedures attending the
passage of a bill through Parliament. Delegated legislation must be intra vires, so
within the powers conferred by Parliament, or else it would be void.
European Economic Community
There are conflicts between Community Legislation and National Legislation:
Community Legislation prevails on National Legislation.
The Court Structure in England and Wales
English judicial order is composed of the Supreme Court and lower courts.
The Supreme Court of Judicature is made up of three different courts:
1) The High Court,
2) The Crown Court,
3) The Court of Appeal.
1) The High Court of Justice is composed of three divisions:
a) The 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:
51
freedoms enjoyed by Americans are enshrined in the first ten amendments of the US
Constitution and popularly known as the Bill of Rights.
American law and the US Constitution apply to everyone in the US,
irrespective of citizenship or immigration status, and even illegal immigrants have
most of the same basic legal rights as US citizens. Under the US Constitution, each
state has the power to establish its own system of criminal and civil laws, resulting in
50 different state legal systems, each supported by its own laws, prisons, police
forces, and county and city courts. There is a wide variation in state and local laws,
making life difficult for people moving between states.
The US Judiciary
The US judiciary is independent of the government and consists of the
Supreme Court, the US Court of Appeals and the US District Courts. The Supreme
Court, the highest court in the land, consists of nine judges who are appointed for life
by the President. Its decisions are final and legally binding on all parties. In deciding
cases, the Supreme Court reviews the activities of state and federal governments and
decides whether laws are constitutional. The Supreme Court has nullified laws passed
by Congress and even declared the actions of US Presidents unconstitutional.
Momentous judgements in recent years have involved the Watergate scandal, racial
segregation, abortion and capital punishment.
However, when appointing a Supreme Court judge, the Presidents selection is
based on a candidates political and other views, which must usually correspond with
his own. The Supreme Court was for many years made up of members with a liberal
or reformist outlook, although this trend has been reversed in recent years with the
appointment of conservative judges by successive Republican Presidents.
The Federal Courts
A separate system of federal courts operates alongside state courts and deals
with cases arising under the US Constitution or any law or treaty. Federal courts also
hear disputes involving state governments or between citizens resident in different
states. Cases falling within federal jurisdiction are heard before a federal district
judge. Appeals can be made to the Circuit Court of Appeals and in certain cases to the
US Supreme Court.
The Civil and Criminal Courts
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There is a clear separation and distinction between civil courts, which settle
disputes between people (such as property division after a divorce), and criminal
courts that prosecute those who break the law. Crimes are categorized as minor
offences (misdemeanours) or serious violations of the law (felonies).
Misdemeanours include offences such as dropping litter, illegal parking or 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.
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2. No Elected Judges: The Judges in France are not purely elected. Under the
1958 Constitution of France a Conseil Superieur dela Majistrature (High
Council of Judges) has been appointed to make proposals for appointment of
Judges of the Court of Cassation and Presiding Judges of the Courts of Appeal
and to give its opinion of the proposals of the Minister of Justice relative to
appointments of other Judges. The High Council of Judges acts as the
disciplinary council of judges.
3. Dual Hierarchy: There are two separate sets of Courts in France. They are
ordinary courts dealing with common law for the trial of civil and criminal
offences. Besides the ordinary courts, there are administrative courts which are
concerned with the acts of the administrative authorities and the grievances
that the citizens may have against these authorities.
4. Court of Conflict: With two sets of Courts, ordinary and administrative, it
becomes necessary to have some agency for settling disputes arising out of the
final jurisdiction of the Court of Cassation and the Council of State. For this
purpose, a Court of conflict was setup in 1872. This Court is composed of the
Minister of Justice as ex-officio President, three judges of the Court of
Cassation, three members of the Council of State, and two other persons,
selected by the foregoing. This institution is special to France only and there is
no such institution elsewhere in the world.
5. Absence of Judicial Review: Courts in France have no power to declare laws
passed by the Parliament as unconstitutional. In France, Courts derive their
powers from the Parliament. The French citizen has no right to approach a
court to declare a law as unconstitutional. However, the constitutionality of a
law can be got determined, before its promulgation from the Constitutional
Council by the President of the Republic, the Prime Minister or the President
of either chamber of the Parliament. Once a law has been promulgated, its
constitutionality cannot be questioned.
6. The Institution of Parquet: To each Court in France there is attached a
parquet by a Procureur or State Attorney and a member of assistants to help
him. The parquet does the same job as is done by public prosecutors in India.
It conducts prosecutions. The members of the parquet are all irremovable and
55
they move upwards in their cadre. Though their main function is on the
criminal side, yet they also act in civil cases which are of interest to the State,
by submitting the point of view of the State on the law, and of the public
authorities and of people who are not capable of prosecuting their own case.
The institution of parquet is a very unique feature of the French legal and
judicial system.
7. Independence of Judiciary: The President has been made the guarantor of
the independence of judiciary. Judges may not be removed from office. The
Judges of the superior courts i.e. Court of Cassation and the Courts of Appeals
are appointed on the proposals made by the High Council of Judges which
consists of the President of the Republic, the Minister of Justice and nine other
members. Thus the appointment of the superior judges is outside the purview
of the executive. The judges at the lower level are appointed through a
competitive examination. The fresh appointees spend four years in the
National Centre of Judicial Studies to get further training in the legal and
judicial system. The Judges are free to deliver their judgements uninfluenced
by any kind of pressure. The independence of judiciary is well recognized in
France.
8. Habeas Corpus: Under Article 66 of the 1958 Constitution of France, no one
may be arbitrarily arrested and that the judiciary acting as guardian of
individual liberty, shall ensure that the individuals freedom is protected in
accordance with law. This provision of Article 66 has been made for the first
time and it marks a unique and important departure from the earlier.
In provinces and territories under the common law regime, courts look first to
any legislation that may have been enacted, and then to previous decisions. In the
absence of legislation, judges interpret the common law for guiding future decisions.
Despite these differences, both common law and the Civil Code of Quebec are
adapting to meet new challenges and issues facing the Canadian legal system.
Common law continually changes with new precedents being set by judgments
rendered by the courts, and the Civil Code has already been amended number of times
since 1998.
Salient Features of the Constitution of Canada, 1982
The Constitution of Canada contains the British North America Act (BNA) of
1867 as a main document and it has been amended 23 times in 150 years and the last
amendment being the Constitution Act of 1982.
1. Written Constitution: The Canadian Constitution is mostly written as British
North America Act and the amendments effected in it from time to time. It also
contains the statutes passed by British Parliament expressly referred to Canada
viz. colonial laws, validity Act, the statute of Westminster 1931 and the Balfour
Declaration; Abdication Act 1937. Further, it contains British Orders-inCouncil such as orders admitting the Northwest Territories, British Columbia
and others to the dominion of Canada. It also contains the Constitutional Laws
enacted by the Canadian Parliament viz. the House of commons Act, Alberta
and Saskatchewan Acts, namely, those creating provinces and changing their
boundaries, the Act of 1875 establishing Canadian Supreme Court, Acts
relating to the executive council, the legislation and elections. All the above
documents form the written part of the Constitution. It is not a single
document. It is a collection of 20 documents, 13 Acts of the British Parliament,
7 Acts of the Canadian and 4 British orders-in-council.
2. A Federal Constitution: The powers have been divided between the
Dominion and the Provincial Governments. The provinces have been vested
with exclusive legislative control over a list of specified subjects. The
Dominion (centre) possesses exclusive legislative control over the rest.
Amendments to the major parts of the Constitution cannot be made without the
consent of the provinces. Though it is a federation, strong centralizing
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the states. It defined exclusive powers (investing the federal government with the
exclusive power to make laws on matters such as trade and commerce, taxation,
defence, external affairs, and immigration and citizenship) and concurrent powers
(where both tiers of government are able to enact laws). The states and territories have
independent legislative power in all matters not specifically assigned to the federal
government. Where there is any inconsistency between federal and state or territory
laws, federal laws prevail. Federal laws apply to the whole of Australia.
In effect, Australia has nine legal systems that are the eight states and territory
systems and one federal system. However, it is the state and territory criminal laws
that mainly affect the day-to-day lives of most Australians.
Each of the federal and state systems incorporates three separate branches of
governmentlegislative, executive and judicial. Parliaments make the laws, the
executive government administers the laws, and the judiciary independently interprets
and applies them.
Australian Courts
The High Court of Australia interprets and applies the law of Australia,
decides cases of special federal significance, including challenges to the constitutional
validity of laws, and hears appeals (by special leave) from the federal, state and
territory courts. The High Court has a Chief Justice and six other judges who can
preside either individually or together. It is the highest court of appeal on all matters,
whether decided in the federal or state jurisdictions.
The other federal courts are the Federal Court of Australia, the Family Court
of Australia and the Federal Magistrates Court of Australia. Under the Constitution,
state and territory courts may be invested with federal jurisdiction.
The Federal Courts jurisdiction is broad, covering almost all civil matters
arising under Australian federal law and some summary criminal matters. The court
also has substantial and diverse appellate jurisdiction, including over the decisions of
single judges of the Federal Court and the Federal Magistrates Court (in non-familylaw matters) and some decisions of the state and territory courts.
The Family Court is Australias superior court in family law. Through its
specialist judges and staff, the court helps to resolve complex family disputes. It also
covers specialized areas such as cases relating to the Hague Convention on
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61
62
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:
Customary law
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
Criminal Law
India is a land of diversified culture, local customs and various conventions
which are not in opposition to ethics. People of different religions as well as traditions
are regulated by all the different sets of personal laws in order to relate to family
affairs.
Classifications of Indian legal system:
63
The judicial system or Indian legal system is a unique feature of the Indian
Constitution. It is an integrated system of courts that administer both state and union
laws. The Supreme Court of India is the uppermost part in the Indian legal system.
Under this, each state or a group of states possesses High Courts. There are several
subordinate courts under these High Courts.
Court of original jurisdiction. It also has the power to try all cases including those
punishable with death. Below this we have courts on civil side known in different
states as Munsifs, Sub-Judges, Civil Judges and the like and lower courts on criminal
side consists of courts of Chief Judicial Magistrate and Judicial Magistrates of First
and Second class. Apart from all these, villages in some parts of India have Panchayat
Courts under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri
etc. These courts deal with petty civil and criminal issues, which are local in scope.
One of the unique features of Indian Judicial System is that it consists of a
unified and integrated system of courts and not a dual system. This exists despite the
adoption of a federal system and existence of Central Acts and State Acts in their
respective spheres. This means that the Supreme Court, High Courts and the Lower
Courts constitute a single, unified judiciary having jurisdiction over all cases arising
under any law whether enacted by the Parliament or a State legislature. This is unlike
a federal country like USA where a dual system of courts exists with the Supreme
Court at the top along with a separate parallel judicial system in each State.
Hierarchy of Courts:
65
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.
67
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).
68
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).
Introduction
Legal research is the process of identifying and retrieving information
necessary to support legal decision-making. In its broadest sense, legal research
includes each step of a course of action that begins with an analysis of the facts of a
problem and concludes with the application and communication of the results of the
investigation.
69
The processes of legal research vary according to the country and the legal
system involved. However, legal research generally involves tasks such as: 1) finding
primary sources of law, or primary authority, in a given jurisdiction (cases, statutes,
regulations, etc.); 2) searching secondary authority (for example, law reviews, legal
dictionaries, legal treatises, and legal encyclopedias such as American Jurisprudence
and Corpus Juris Secundum), for background information about a legal topic; and 3)
searching non-legal sources for investigative or supporting information.
Legal research is performed by anyone with a need for legal information,
including lawyers, law librarians, and paralegals. Sources of legal information range
from printed books, to free legal research websites and information portals to fee
database vendors such as LexisNexis and Westlaw. Law libraries around the world
provide research services to help their patrons find the legal information they need in
law schools, law firms and other research environments. Many law libraries and
institutions provide free access to legal information on the web, either individually or
via collective action, such as with the Free Access to Law Movement.
Citations
A citation is a reference to legal authorities and precedents such as statutes,
cases, regulations and law review articles. Citations are used in arguments to courts,
legal textbooks, law review articles and the like to establish or fortify the propositions
argued.
Citations to legal materials follow a standard format which makes it possible
for anyone using a law library to find cited cases, statutes, regulations, and law review
articles.
Most legal citations consist of three basic parts:
1) the name of the case, statute, or article
2) a statement of where the item can be found in a multi-volume set of legal materials
written as: volume number, name of publication (or set) page number
3) a date
If we will see the citation of a case, a complete case citation looks like as
follows:
Brown v. Board of Education, 347 U. S. 483 (1954).
70
The starting point for legal research is to know how that law, contained in the
report of a case, section of an Act or in a clause of a Regulation, is referred to by the
legal profession. This is known as the citation of cases, Acts and regulations. Thus we
say that a case is cited in court by counsel to provide the legal authority for the
proposition that is being put forward.
References:
Books:
1. Robert Watt, Concise Legal Research, (5th ed.), Universal Law Pub. Pvt. Co.,
New Delhi, 2004 (Chapter 1).
2. S.K. Verma and M. Afzal Wani, Legal Research and Methodology, (2nd ed.),
The Indian Law Institute, 2001 ( Chapter Part- B p.219-240).
3. Sharon Hanson, Legal Method, Cavendish Pub. Ltd., London, (1999).
Introduction
Like any other library a law library is a trinity of men, material and
building. It has been aptly remarked about a law library that the law library is truly a
vital factor in the administration of justice, an institution of extraordinary social
significance in a free society. Inspiring is the example of men and women of vision
who devote their talents to the creation and perpetuation of law libraries whose
benefits reach out far and beyond the personal interests of the original creators. In
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addition, the law library is a community trust, which Gilbert Stephenson defined as
an ocean liner receiving its cargo in part from living trusts, which are private ships
and carrying it over into successive generations as to a distant port, there to be
distributed for the common good.
A law library contains highly specialized materials, and this requires special
skill to handle. Basically legal material consists of statutory law and reports of
decided cases. Both these types of legal materials relate to the authority and
precedent respectively. Hence any type of research will not be complete unless
these materials have been scanned through. The term statutory law is more inclusive
than is generally considered by the term in popular parlance for it includes not only
legislative enactments but constitutions, treaties, court rules, interstate compacts,
municipal ordinances, and administrative rules and regulations.
Any law library has to be well equipped with regard to these two basic
materials. These materials may equip the reader not only with what the law is but also
help him understand that in a complicated society with complex laws, he may have to
take recourse to such secondary materials as text books, reference books and articles.
For a research library these materials may have to be in abundance, but in addition
such a library has to contain materials in allied fields such as history, political science,
anthropology, sociology and economics and also in comparative law. The task of a
researcher is not only to find the existing law but also to examine alternative solutions
to a problem and to suggest reform in law.
Using a Law Library
Legal research inevitably involves the use of the books, pamphlets, periodicals
and documentary materials in libraries. General source materials have to be consulted
for the necessary background knowledge of the problem to be investigated.
Knowledge of previous findings in similar cases is also required by the legal
researchers. All these source materials are numerously available in library. Use of the
library is a must to any researcher. Hence, a researcher should know how to use the
resources of libraries. He should understand the ways in which libraries organize
collections and with knowledge of basic bibliographic and reference materials. The
general procedure of maintaining libraries is the same in any library because all
libraries organize their collections on the same general principles and provide similar
72
resources for users. All the libraries have a system of subject classification, a card
catalogue, and certain bibliographic and reference materials.
A researcher who wishes to use a law library must know how to trace the
required material from the books kept in a library. Hence he should have thorough
knowledge regarding the availability of books and reading material, how to use the
library catalogue and also the knowledge of classification system used in the library.
He must acquainted with the catalogue which gives him the information of the
available books with title, author and place of publication and publisher along with
call number of the books.
References:
Books:
1. S.K. Verma and M. Afzal Wani, Legal Research and Methodology, (2nd ed.),
The Indian Law Institute, 2001 ( Chapter Part B p. 241-263).
2. Robert Watt, Concise Legal Research, (5th ed.), Universal Law Pub. Pvt. Co.,
New Delhi, 2004 (Chapter 6)
3. S.R. Myneni, Legal Research Methodology, (3rd ed.), Allahabad Law Agency,
2004 (Chapter 12)
4. S.K. Mishra, Legal Language, Legal Writing and General English, (1st ed.),
Allahabad Law Agency, 2008 (Chapter12)
Introduction
Nowadays we find computers on the desks of the lawyers. The influence of
computers and electronic sources on law has already effected significant changes and
there is likelihood of many more changes with the increasing sophistication of
equipment and technique. Now the advocates are familiar with new jargon of
computers input, output, processing, programming, storage, retrieval,
software, browse, search, engines, databases, etc. Computers and electronic
sources are almost playing the part of libraries. Certain practical advantages are that
73
computers can assist practitioners by timing, and costing interviews with clients,
besides storage of information.
Internet facility brought the whole knowledge of the world into a lap-top
computer. Information Technology has developed a lot and e-mail facility helps the
researcher in communication.
The researcher can get information through websites and he can get the
national and international statutes, agreements, and details of case laws relating to a
particular issue with the use of .(dot) com online stores through different websites.
Computer, at present, takes the place of a calculator in the hands of learners. With the
help of the printer, the researcher can get the printed copy of the documents needed
within no time. Nowadays use of computer and electronic sources is a must to any
legal practitioner or legal researcher. The web universe, with thousands of sites that
get added everyday, is expanding rapidly.
When we look for sites that contain the required information, we access a
search engine and invoke a search process; the search engine scans its database,
collects all the appropriate links that match our query, cooks a web page with this
search result and pushes it to over browser.
One of the methods through which a search engine expands its web database is
by grabbing the link information using automatic programs called Crawlers. These
programs move continuously from one site to the other and fetch information and
push them into the engines database. This, technique works fine as long as the
scanned site has a well-laid out site structure with static web pages.
The software does not finish its job by just downloading the links, it analyses
the links, removes irrelevant links, then downloads the pages and stores it in your hard
disk. The service also provides the facility to save the search results in your machine
so that you can retrieve it later.
Search Engine and Legal Information
If one wants to get relevant information on any subject matter, he can switch
on his computer and open the internet browser to get that information through a
search engine. A search engine is an internet site which stores the information about
all the branches of knowledge and after receiving the search request compares it to the
entries in its store and presents the required matter to the searcher. A search engine is
74
1. abanet.org
2. aesham.com
3. allindia.com
4. allindiareporter.com
5. Amity.edu
6. animal-law.org
7. appeccp.org
8. caselaw.delhi.nic.in/incodis
9. copyright.com
10. lawsinida.com
11.lawsininida.com
There are many more sites which one may come across in day to day study.
Those sites may be added to this list to enrich the source.
76
1. US Federal Material and US State Material: They contain primary federal and
state legal information, including case laws, statutes and administrative
materials.
2. Topical Material by Area of Practice: This includes a variety of topical
databases, such as taxation, security etc.
3. West News: It includes a comprehensive coverage of news, business and
financial information.
4. Law Reviews, Bar Journals and Legal Periodicals: This includes documents
from law reviews, legal encyclopedias, bar journals etc.
How to Use Westlaw:
In Westlaw at the right hand side there is a tool bar. This document opens in the
find link. To retrieve a document when you know its citation, type the citation in the
Enter citation text box and click Go. You do not need to include brackets or use exact
spacing, capitalization or punctuation. For example, you can type [2000] 2 HKLRD
312, 2000 2 hklrd 312 or 2000 2hklrd312 to retrieve the same document.
Find Citation Templates
If you are uncertain about correct citation format for your Find request, you
can use a fill-in-the-blank template. To display a template, type the publication
abbreviation in the Enter citation text box and click Go. For example, type cmlr in the
Enter citation text box and click Go to retrieve the citation format for documents in
Common Markets Law Reports. You can retrieve the following types of documents by
typing their citations:
Case Law
Statutes
Regulations
Topical Material
Legal Practice Materials
Law Reviews and Bar Journals
Treatises
Newspapers and Magazines
Publication List
Click Publication List in the left frame to view a complete list of publications
and abbreviations that can be used with Find. To move through the list, click the
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arrows at the top of the right frame. To quickly find an abbreviation, type an
appropriate word in the text at the top of the Publications List and click Scan.
Publication Country
Because publications from different countries can have the same publication
abbreviation, you must specify the country from which you want to retrieve
documents. To choose a country for your current Find request, select the country from
the Publication Country drop-down list in the left frame. To change the default
country, choose Options from the drop-down list on the toolbar. The Options- General
Westlaw page is displayed. Choose a country from the list.
Lexis Nexis
The Lexis Nexis group provides information to legal, corporate, government
and academic markets, and publishes legal, tax and regulatory information, via online,
hardcopy print and CD-ROM formats. The global legal and information division of
Reed Elsevier plc, Lexis Nexis Group combines dozens of brands that are leaders
within their respective markets, including Butterworths, Les Editions du Juris
Classeur and Martindale-Hubbell.
Lexis Nexis Group unites strong brands, pioneering technologies and premium
information for customers in the legal corporate, government and academic markets.
More than two-thirds of its revenue is generated in the North American marketplace.
At the same time the Group is the market leader in the United Kingdom and the
British Commonwealth and major publisher in the legal, tax and regulatory markets in
Continental Europe and Latin America.
The Group is divided into four main operating units: North American Legal
markets, US Corporate and Federal markets, Martindale-Hubbell and the International
Division. The division which comprises the Groups publishing assets is regionally
organized, in Europe, Asia-Pacific and Latin America. These include the marketleading Butterworths companies in the UK and British Commonwealth, Les Editions
du Juris Classeur in France, and many other companies that are household names in
their markets.
The Groups products are available via the World Wide Web, dial-up online,
CD-ROM and hardcopy print. The thousands of titles available via Lexis Nexis Group
products offer access to some of the most recognized and authoritative sources in the
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world today. A trusted source, Lexis Nexis Group offers targeted Web information
solutions that can be integrated into customer business processes and systems. Lexis
Nexis Web and dial-up online solutions combine searchable access to more than three
billion documents from thousands of sources with leading edge systems and tools for
managing this content. Lexis Nexis delivers a high quality resource with which to
build legal research and knowledge-management solutions for the entire enterprise.
The Lexis service, the first commercial, full text legal information service,
began in 1973 to help legal practitioners research the law more efficiently. The
companion Nexis, launched in 1979 news and business information service, to richen
research with recent and archival news and financial information. Since that time, the
service has grown to become the largest news and business online information
service, including comprehensive company, country, financial, demographic, market
research and industry reports. Providing access to thousands of worldwide
newspapers, magazines, trade journals, industry newsletters, tax and accounting
information, financial data, public records, legislative records, data on companies and
their executives makes the Lexis Nexis service and indispensable tool for gathering
information and providing accurate answers.
Lexis Nexis organizes its materials into general categories as Combined
Federal and State Case Law-US, Federal Legal-US, State Legal-US. Detailed
description of these contents is as follows:
1. Combined Federal and State Case Law: It contains case laws from federal and
state courts.
2. Federal Legal US: It contains primary federal case laws.
3. Area of Law by topic: This topic contains specialized sources which cover
such diverse subjects as copyright, insurance, security etc.
4. News: It provides current awareness and information service.
How to Use Lexis Nexis
The main page of Lexis Nexis, after logging in, shows two search boxes. The
first one with the title choose from my last 20 sources accessed displays last 20
sources accessed. Whereas the second one has the title Look for a source. This has
two options; the first one is match terms in long names i.e. formal name used to
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describe a source, e.g. Federal Tax. The second one is search by short name i.e. the
traditional library and file name.
The second option includes Explore Sources. Using this we can select broad
hierarchical topics. At the end of the page there is another search space for command
searching. This allows researcher to quickly access particular library and file instead
of navigating through sources of hierarchy.
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next option i.e. Whats New, one can view the latest updates and additions to each
module and section. Last option is about SIGH OFF.
Indlaw
Indlaw is a business-to-business Internet service provider of research modules,
relating to Indian legal, tax, business and regulatory issues. Indlaw is part of the
Indian law online project which was launched in April 1997 as a collaborative
exercise between professionals and academicians based in U.K. and in India to build
and electronic legal library to enable solicitors, advocates, students and clients to have
access to information on various primary and secondary legal documents like the
Constitutional texts, Parliamentary debates, Case law, Parliamentary and State
enactments and delegated legislation in both India and the U.K.
Indlaw is today a leading provider of easy-to-use comprehensive and costeffective legal, tax and regulatory information on the Internet. Rating agencies like
Alexa have confirmed that Indlaw is the most trafficked Indian legal and regulatory
resource base online.
Indlaw caters to the needs of every professional, whether he is a lawyer,
chartered accountant, company secretary, management consultant, director or an
entrepreneur. Indlaw ensures that you are aware of the latest changes in the legal and
policy framework faster than from any other source.
Indlaws databases include: Case Laws, Legislations, Rules, Notifications,
Circulars, Trade Notices, Practice Directions, Forms, Reports and Proceedings, FAQs,
Indlaw Articles, News, Press Notes.
All India Reporter
AIR Ltd. is the creation of the genius pioneering zeal of late Mr. V.V. Chetaley
who was also a crusader and fighter against all odds. The institution AIR Ltd. came
into its existence in 1922 with its first Law Reporter All India Reporter. It was
followed by other Law Reports like Criminal Law Journal, Labour and Industrial
cases, Taxation Law Reports, Allahabad Law Journal and AIR Supreme Court
(weekly) one after another. Moreover, the institution took up the more diversified
work of preparing and publishing commentaries. Digests and Manuals all confined
to Federal Acts of India. The eye was always on the binding law of the land. The
activities of the Institution can be broadly classified into two categories as follows:
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1.
Reporting judgements of Supreme Court of India and all High Courts in India.
Whereas All India Reporter has been a comprehensive Journal in as much as
reporting judgements in all branches of Law, the other journals, as intended
and designed, are specialized agencies reporting judgements of these very
superior Courts in their respective branches of Law.
2.
telecommunications and computer sciences the Company now has an ambitious plan
of switching over to the silicon medium.
Quotable Quotes
1. Law is merely the expression of the will of the strongest for the time
being, and therefore laws have no fixity, but shift from generation to
generation.
- Henry Brooks Adams
2. Where there are laws, he who has not broken them need not tremble.
- Vittorio Alfieri, Virginia
3. Law is king of all.
- Henry Alford, School of the Hear
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4. We are under a Constitution, but the Constitution is what the judges say
it is, and the judiciary is the safeguard of our property and our liberty
under the Constitution
-Charles Evans Hughes
5. He that would make his own liberty secure must guard even his enemy
from oppression; for if he violates this duty he establishes a precedent
that will reach to himself.
- Thomas Paine quotes
6. Precedent keeps the law predictable and so more or less ascertainable.
- Lord Devlin
7. Statutes should be constructed not as theorems of Euclid but with some
imagination of the purposes which lie behind them and to be too literal in
the meaning of words is to see and miss the soul.
-Doraiswamy
Raju
8. Legislation is that source of law which consists in the declaration of legal
rules by a competent authority. When judges by judicial decisions lay
down a new principle of general application of the nature specifically
reserved for the legislature they may be said to have legislated, and not
merely declared the law
- R.C. Lahotia
9. Law is the great organ through which the sovereign power of society
moves.
- Bacon
References:
Books:
1. S.R. Myneni, Legal Research Methodology, (3rd ed.), Allahabad Law Agency,
2004
Compulsory Readings:
Books:
1. Granville Willains, Learning the Law.
2. Nomita Aggarwal, Jurisprudence (Legal Theory).
3. B.N.M. Tripathi, An Introduction to Jurisprudence and Legal Theory.
General Bibliography:
1. Benjamin N. Cardozo, The Nature of Judicial Process.
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