LEGAL METHODS

Judicial Interpretation and Discretion

SUBMITTED BY: SUBMITTED TO:

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 ACKNOWLEDGEMENT

We wish to convey our deep gratitude towards our Legal Methods teacher ---------------- who has been a
source of guidance and motivation throughout our project.

We are grateful to the University for facilitating us with the necessary academic and preparatory
resources, online and offline, required making this project.

We are also grateful to all our friends who keep the spirit of competition alive in us, and our seniors who
never hesitate to help when two inexperienced first years come looking for genuine advice and support.

Lastly, we thank our parents for being a constant source of happiness and encouragement.

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 TABLE OF CONTENTS

 INTRODUCTION …………………………………………………………… 3

 CONVENTIONAL METHODS OF STATUTORY

INTERPRETATION………………………………………………………….. 5

 THE OCCASIONAL INDETERMINACY of CONVENTIONAL

INTERPRETIVE METHODS………………………………………………… 7

 ALTERNATIVES TO CONVENTIONAL METHODS………………………10

 SOME FINAL REFLECTIONS ON FUNDAMENTALS…………………….11

 INTERPRETIVE DISCRETIONS AND FIVE JUDICIAL VIRTUE ………. 12

 CASE LAWS……………………………………………………………….......15

 CONCLUSION....................................................................................................16

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INTRODUCTION

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 HIERARCHIAL STRUCTURE

HIERARCHY OF COURTS IN UNITED STATES COURTS:

Federal Courts
The hierarchy of federal courts in the USA is mainly divided into 3 parts.

Supreme Court
(1)

Courts of Appeal
(12)

District Court
(94)

Supreme Court

The constitution of the USA is Federal in nature. The Federal courts systems are classified in main
three levels which are explained below :-

 The Supreme Court of the USA is the highest court in the American judicial system and has
the power to decide appeals on all cases brought in federal court or those brought in state
court but dealing with federal law.

For example, if a First Amendment freedom of speech case was decided by the highest court of a state
(the state supreme court), the case could be appealed to the federal Supreme Court. However, if that
same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of
the United States would not be able to consider the case.

 After the circuit court or state Supreme court has ruled on a case, either party may choose to
appeal to the Supreme Court. Unlike circuit court appeals, however, the Supreme Court is
usually not required to hear the appeal. Parties may file a “writ of certiorari” to the court,
asking it to hear the case.

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  If the writ is granted, the Supreme Court will take briefs and conduct oral argument.
If the writ is not granted, the lower court’s opinion stands. Certiorari is not often granted; less
than 1% of appeals to the high court are actually heard by it. The Court typically hears cases when
there are conflicting decisions across the country on a particular issue or when there is an
egregious error in a case.
 The members of the Court are referred to as “justices”.
 There are nine justices on the court – eight associate justices and one chief justice. The
current members of the court are lawyers and most have served as circuit court judges. Justices are
also often former law professors. The chief justice acts as the administrator of the court and is
chosen by the President and approved by the Congress when the position is vacant.

Court of Appeals

 Once the federal district court has decided a case, the case can be appealed to a United States court
of appeal. There are twelve federal circuits that divide the country into different regions. The
Fifth Circuit, for example, includes the states of Texas, Louisiana, and Mississippi.
 Cases from the district courts of those states are appealed to the United States Court of Appeals for
the Fifth Circuit, which is headquartered in New Orleans, Louisiana. Additionally, the Federal
Circuit Court of Appeals has a nationwide jurisdiction over very specific issues such as
patents.

Each circuit court has multiple judges, ranging from six on the First Circuit to twenty-nine on the Ninth
Circuit.

Any case may be appealed to the circuit court once the district court has finalized a decision. (some
issues can be appealed before a final decision by making an “interlocutory appeal”)

 Appeals to circuit courts are first heard by a panel, consisting of three circuit court judges. Parties
file “briefs” to the court, arguing why the trial court’s decision should be “affirmed” or “reversed.”
After the briefs are filed, the court will schedule “oral argument” in which the lawyers come
before the court to make their arguments and answer the judges’ questions.Though it is rare, the
entire circuit court may consider certain appeals in a process called an “en banc hearing.” (The
Ninth Circuit has a different process for en banc than the rest of the circuits.)
 En banc opinions tend to carry more weight and are usually decided only after a panel has
first heard the case. Once a panel has ruled on an issue and “published” the opinion, no future
panel can overrule the previous decision. The panel can, however, suggest that the circuit take up
the case en banc to reconsider the first panel’s decision.Beyond the Federal Circuit, a few courts
have been established to deal with appeals on specific subjects such as veterans claims (United
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 States Court of Appeals for Veterans Claims) and military matters (United States Court of Appeals
for the Armed Forces).

District Courts

 The district courts are the general trial courts of the federal court system. Each district
court has at least one United States District Judge

 District courts handle trials within the federal court system, both civil and criminal. The
districts are the same as those for the U.S. Attorneys, and the U.S. Attorney is the primary
prosecutor for the federal government in his or her respective area.

 District court judges are responsible for managing the court and supervising the court’s
employees. There are over 670 district court judges nation wide.

 In criminal matters, magistrate judges may oversee certain cases, issue search warrants and
arrest warrants, conduct the initial hearings, set bail, decide certain motions (such as a motion
to suppress evidence), and other similar actions.

 In civil cases, magistrates often handle a variety of issues such as pre-trial motions and
discovery.

 Federal trial courts have also been established for a few subject-specific areas. Each federal
district also has a bankruptcy court for those proceedings. Additionally, some courts have
nationwide jurisdiction for issues such as tax (United States Tax Court), claims against the
federal government (United States Court of Federal Claims), and international trade (United
States Court of International Trade).

State Courts

 The Constitution and laws of each state establish the state courts. A court of last resort, often
known as a Supreme Court, is usually the highest court. Some states also have an intermediate
Court of Appeals. Below these appeals courts are the state trial courts. Some are referred to as
Circuit or District Courts.
 States also usually have courts that handle specific legal matters, e.g., probate court (wills and
estates); juvenile court; family court; etc.

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  Parties dissatisfied with the decision of the trial court may take their case to the intermediate Court
of Appeals.Parties have the option to ask the highest state court to hear the case. Only certain cases
are eligible for review by the U.S. Supreme Court.
 Types of cases heard by State Courts Most criminal cases, probate (involving wills and
estates),Most contract cases, tort cases (personal injuries), family law (marriages, divorces,
adoptions), etc.
 State courts are the final arbiters of state laws and constitutions. Their interpretation of federal law
or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may
choose to hear or not to hear such cases.

HIERARCHY OF COURTS IN INDIA:

Supreme Court of India

Supreme Court of India is the highest level of court of Indian juridical systemwhich was established
as per Part V, Chapter IV of the Constitution of India which endorses the concept of Supreme Court as the
Federal Court to play the role of the guardian of the esteemed constitution of India with the status of the
highest level of court in the status of appeal cases[3].

 Constitution Regulation

As conferred by Articles 124 to 147 of Indian Constituency, the jurisdiction and composition of the
Supreme Court is being fixed. This court is primarily of the status of appellate court. This court is
accepting the appeals of cases which are being heard in the High courts situated in different states and
union territories with dissatisfaction of related parties. This court also accepts writ petitions with the
suspected occurrence of activities which may infer about violation of human rights and subsequent
petitions are accepted to hear and judge the consequences of such happenings.

These types of petitions are accepted under Article 32 of Indian constitution. This article confers the
right to ensure remedies through constitution. This court also hears about such serious issues which need
to be attended with immediate attention[4].

 Structure and Application

This court is comprised of the Chief Justice along with 30 other judges to carry on the operation of
the court. The proceeding of the Supreme Court is being heard only in the language of English. The
Supreme Court is governed by the Supreme Court Rules which was published in the year 1966.

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The same had been fixed under the Article number 145 of the Constitution of India to ensure the
regulation of procedures and practices of the Supreme Court. This article is passing through the process
of upgrading with the presently enforced Article as per the Supreme Court Rules, 2013[5].

High Court of India

 Constitution

High Courts are second Courts of Importance of the democracy of India.They are run by Article 141
of the Constitution of India. They are governed by the bindings conferred by the Supreme Court of India
so far judgments and orders are concerned. The Supreme Court of India is the highest level of courts and
is responsible for fixing the guidance to the High Courts set by precedence.

High courts are the types of courts which are instituted as the courts powered by constitution with the
effect of Article 214 Part IV Chapter V of the Indian Constitution. There are 24 high courts in India taking
care of the regional juridical system of India out of which Kolkata High Court is the oldest[6].

 Jurisdiction

These courts are mainly confined to the jurisdiction of state, group of states or Union
Territory. They are being empowered to govern the jurisdiction of lower courts like family, civil and
criminal courts with other different courts of the districts. These courts are of the statute of principal civil
courts so far originality of jurisdiction is concerned in the related domain of the states and the other
district courts.

These courts are treated as subordinate to High Courts by status. But High Courts are mainly exercising
their jurisdiction related to civil or criminal domain if the lower courts are proved incapable of exercising
their power as per authorization extended by law. These situations may be generated through the inability
of financial or territorial jurisdiction. There are specific areas in which only High Courts can exercise the
right for hearing like cases related to Company Law as it is designated specially in a state or federal law.

But normally the high courts are involved in the appeals raised in the cases of lower courts with the
writ petitions as conferred in Article 226 of the Constitution of India. The area of writ petitions is also the
sole jurisdiction of high courts. The jurisdiction of High Court is varying so far territorial jurisdiction is
considered[7].

 Official structure and application

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Decision on the number of judges in High Court is mainly dictated considering the higher number of
either the average of organization of main cases for the last years as per the average nationally calculated
or the average rate of main cases disposed per judge per year in the respective high court.

The high courts with handling of most of the cases of a particular area are provided with the facility of
permanent benches or branches of the court situated there only. To serve the complainants of remote
regions the establishment of circuit benches had been made to facilitate the service with the schedule of
operation as per the occurrence of visit of the judge[8].

Lower Courts of India

District Courts

 Constitution

The basis of structuring of district courts in India is mainly depending upon the discretion of the
state governments or the union territories.The structure of those courts are mainly made considering
several factors like the number of cases, distribution of population, etc. Depending upon those factors the
state government takes the decision of numbers of District Courts to be in operation for single district or
clubbing together different adjacent districts.

Normally these types of courts exercise their power of juridical service in district level. These courts
are covered by the administrative power of the High Courts under which the district courts are covered.
The judgments of the district courts are subject to review to the appellate jurisdiction of the respective
high court[9].

 Structure and Jurisdiction

The district courts are mainly run by the district judges. There are additional district judges and
assistant district judges who are there to share the additional load of the proceedings of District Courts.
These additional district judges have equal power like the district judges for the jurisdiction area of any
city which has got the status of metropolitan area as conferred by the state government. These district
courts have the additional jurisdictional authority of appeal handling over the subordinate courts which
are there in the same district specifically in the domain of civil and criminal affairs.

The subordinate courts covering the civil cases, in this aspect are considered as Junior Civil Judge
Court, Principal Junior and Senior Civil Judge Court, which are also known as Sub Courts,
Subordinate Courts. All these courts are treated with ascending orders. The subordinate courts covering

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the criminal cases are Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court,
and Chief Judicial Magistrate Court along with family courts which are founded to deal with the issues
related to disputes of matrimonial issues only. The status of Principal Judge of family court is at par with
the District Judge[10].

There are in total 351 district courts in operation out of which 342 are of states while 9 are of union
territories.

Village Courts

 Constitution Structures and Features

The village courts are named as Lok Adalat or Nyaya Panchyat which means the service of justice
extended to the villagers of India. This is the system for resolving disputes in micro level. The need of
these courts is justified though the Madras Village Court Act of 1888. This act is followed by the
development post 1935 in different provinces, which are re-termed as different states after the
independence of 1947.

This conceptual model had been started to be sued from the state of Gujarat consisting of a judge and two
assessors since 1970s. The Law Commission had recommended in 1984 to form the Nyaya Panchayats in
the rural areas with the people of educational attainment. The latest development had been observed in
2008 through initiation of Gram Nyaylayas Act which had sponsored the concept of installation of 5000
mobile courts throughout the country. These courts are assigned to judge the petty cases related to civil
and criminal offence which can generate the penalty of up to 2 years imprisonment.

So far the available statistics of 2012 there are only 151 Gram Nyaylayas which are functional in this big
country which is far below the targeted figures of 5000 mobile courts. While trying to find the basic
reasons for this non achievement, it was found as financial constraints followed by shown reluctance by
the lawyers, respective government officials and police[11].

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 DIFFERENCES AND SIMILARITIES BETWEEN SUPREME COURTS OF INDIA AND USA

DIFFERENCES

Sr. Supreme Court of India Supreme Court of USA

No
.

1. Only federal cases come under its original Federal cases, cases of naval
jurisdiction. forces, maritime activities,
ambassadors etc., come under its
original jurisdiction.

2. Advisory jurisdiction is there. There is no advisory jurisdiction.

3. The appellate jurisdiction includes The appellate jurisdiction is

constitutional, civil and criminal cases. restricted to constitutional cases
only.

4. It can grant special leave to appeal in any There is no such power granted to
matter against the judgment of any court or it.
tribunal (except a military tribunal). Thus it has
wide discretionary power.

5. It follows procedure established by law. It follows due process of law.

6. It has restricted ambit of judicial review. It has a wide ambit of judicial

review.

7. Though defined in the Constitution, its Its jurisdiction and powers are
jurisdiction and powers can be increased or restricted to that conferred by the
decreased by Parliament. Constitution of USA.

8. India has integrated Judiciary. There is separate judiciary for state

This vests Supreme Court with control and and federation.
superintendence powers over state high courts So, no control and superintendence
powers are available.
US Supreme Court does not have
The Supreme Court of India has a written any written or codified constitution
9. Constitution of itself.
of itself.

CITATIONS

In the UNITED STATES OF AMERICA

The Supreme Court Cases in the US are found in multiple reporters (official and unofficial), so you may
encounter multiple different citations for the same case. These may be referred to as "parallel citations,"
that is, parallel to the official citation of the case in United States Reports (the official reporter for
Supreme Court cases) or the official state reporter.

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For Example: New York Times Company v. Tasini

You can find three different citations for this case which are as follows:

533 U.S. 483

This is the official citation for this case; it refers to the case as published in United States Reports.

121 S.Ct. 2381

This is an unofficial citation for this case; it refers to the case as published in Supreme Court Reporter.
150 L.Ed.2d 500
This is an unofficial citation for this case; it refers to the case as published in United States Supreme
Court Reports - Lawyers' Edition.

In the SUPREME COURT OF INDIA

There are various ways in which you can cite a case in the supreme court of India:

The only authorised Indian law report series is the Supreme Court Reports (SCR), and for Supreme Court
decisions, this should be cited wherever possible.

Because of the long delay in publication of the SCR, it is completely acceptable to cite either of the
following unauthorized reports in academic works, and to hand up in court:

 All India Reporter (AIR) (see entry below in the Report Series box). This series is often cited in
preference to the SCR and in Indian courts it has the status of an authorized series. The Law
Library has the AIRs in print.

 Cases from SCC Online (see the entry below in the Cases Databases box) are equally acceptable in
court and to cite in academic writing.

The most cited law report series containing Supreme Court decisions is SCC followed
by AIR and SCR.
Indian cases are often reported in multiple report series - for example: (1970) AIR 1133, [1970] 3 SCR
383, (1970) KLT 181(SC), (1970)1 SCC 189.
For Example: A case can be cited in the following ways:

I. (1970) AIR 1133

II. [1970] 3 SCR 383

III. (1970) KLT 181(SC)

IV. (1970)1 SCC 189

SIMILARITIES:

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 1. Both enjoy Original Jurisdiction in Federal Disputes and in case of violation of Fundamental
Rights.

2. Both are the final and authentic interpreters and act as guardian of the Constitution.

Both enjoy independent powers, as both derives their power from written constitution.

3. Both enjoy appellate Jurisdiction.

JUDICIAL REVIEW IN INDIA AND USA

One of the most important features of the judiciary is the power of judicial review. Judicial review is the
power of the Supreme Court and the High Courts to examine the constitutionality of the Acts of the
Parliament and the state legislatures and executive orders both of the centre and state governments. If it is
found that any of its provisions are in violation of the provisions of the constitution, they can be declared
unconstitutional or ultra-vires of the constitution and a law declared by the Supreme Court as
unconstitutional cannot be enforced by the government.

 The scope of judicial review in India is narrower than that of what exists in USA, though the
American Constitution does not explicitly mention the concept of judicial review in any of its
provisions.
 In USA the judges exercise judicial review in a very aggressive manner. If the judges think that a
particular law and the philosophy of it is not liked by the judges then, also the judiciary may reject
the law. But such a thing never happens in India. The Indian judges reject a law only on the basis
of unconstitutionality.
 Moreover, it has also been seen that in USA, if a law is rejected by the Supreme Court then the
court will make a new law in its place. Although law making is not the responsibility of the
judiciary, the judiciary makes laws. Such judge-made laws are very common in USA. But in India
if a law is rejected by the Supreme Court, the Court leaves the matter of making new laws to the
legislative. This has also been described as Judicial Activism by some of the constitutional
experts.
 The American Constitution provides for ‘due process of law’ against that of ‘procedure established
by law’ which is contained in the Indian Constitution. The difference between the two is: the ‘due
process of law’ gives wide scope to the Supreme Court to grant protection to the rights of its
citizens. It can declare laws violative of these rights void not only on substantive grounds of being
unlawful, but also on procedural grounds of being unreasonable. Our Supreme Court, while
determining the constitutionality of a law, however examines only the substantive question i.e.,
whether the law is within the powers of the authority concerned or not. It is not expected to go into
the question of its reasonableness, suitability or policy implications.
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  The scope of judicial review in India is somewhat circumscribed as compared to that in the USA.
In India the fundamental rights are not so broadly coded as in the USA and the limitations there on
have been stated in the constitution itself and this task has not been left to the courts. The
constitution makers adopted this strategy as they felt that the courts might find it difficult to work
out the limitations on the fundamental rights and the same better be laid down in the constitution
itself. The constitution makers also felt that the judiciary should not be raised at the level of ‘Super
Legislature’, whatever the justification for the methodology adopted by the makers of the Despite
various shortcomings of judicial review, it cannot be denied that it has played an important role in
ensuring constitutional government in the country by keeping the centre and the states in the
respective spheres. It has also enabled the Constitution to change according to changed conditions
by imparting new meaning to the constitution. Through the exercise of this power, the Supreme
Court has protected the freedom of citizens and protected their Fundamental Rights against
encroachment by the legislative and executive wings of the government.

There is nothing in the world which is bad or good for itself but it is its uses which make it bad or
good. This review system also has same situation. If Supreme Court use it only for country then it
is very good but if Supreme Court uses it and keeps their own interests in mind, it is worse for
country as well as countrymen.
But we know that after principle of judicial care, Supreme Court never use it against national
interests and judges keeps national interests, safety, progress and dignity in their mind instead of
their own interests or conflicts.
So we can say it is very useful and beneficial for the country of USA and also in India.
Constitution, the inevitable result of this has been to restrict the range of judicial review in India.

The Appointment, Impeachment, Qualification, etc of the Judges of the Supreme Court of India and the
United States of America:
United States of America:
Who appoints federal judges?
Supreme Court justices, court of appeals judges, and district court judges are nominated by the
President and confirmed by the United States Senate, as stated in the Constitution. The names of
potential nominees are often recommended by senators or sometimes by members of the House who
are of the President's political party. The Senate Judiciary Committee typically conducts confirmation
hearings for each nominee. Article III of the Constitution states that these judicial officers are appointed
for a life term. The federal Judiciary, the Judicial Conference of the United States, and the Administrative
Office of the U.S. Courts play no role in the nomination and confirmation process.
How are new judgeships created?

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Court of appeals and district court judgeships are created by legislation that must be enacted by
Congress. The Judicial Conference (through its Judicial Resources Committee) surveys the judgeship
needs of the courts every other year. A threshold for the number of weighted filings per judgeship is the
key factor in determining when an additional judgeship will be requested. Other factors may include
geography, number of senior judges, and mix of cases. The Judicial Conference presents its judgeship
recommendations to Congress.
What are the qualifications for becoming a federal judge?
The Constitution sets forth no specific requirements. However, members of Congress, who typically
recommend potential nominees, and the Department of Justice, which reviews nominees' qualifications,
have developed their own informal criteria.
How is a chief judge selected?
One is not nominated or appointed to the position of chief judge (except for the Chief Justice of the
United States); they assume the position based on seniority. The same criteria exists for circuit and
district chiefs. The chief judge is the judge in regular active service who is senior in commission of those
judges who are (1) 64 years of age or under; (2) have served for one year or more as a judge; and (3)
have not previously served as chief judge.
What is a senior judge?
The "Rule of 80" is the commonly used shorthand for the age and service requirement for a judge to
assume senior status, as set forth in Title 28 of the US. Code, Section 371(c). Beginning at age 65, a judge
may retire at his or her current salary or take senior status after performing 15 years of active service as
an Article III judge (65+15 = 80). A sliding scale of increasing age and decreasing service results in
eligibility for retirement compensation at age 70 with a minimum of 10 years of service (70+10=80).
Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent
of the federal courts' workload annually.
India
Appointments and the Collegium
As per the constitution, as held by the court in the Three Judges Cases – (1982, 1993, 1998), a judge is
appointed to the supreme court by the president on the recommendation of the collegium — a closed
group of the Chief Justice of India, the four most senior judges of the court and the senior-most judge
hailing from the high court of a prospective appointee. This has resulted in a Memorandum of Procedure
being followed, for the appointments.
Judges used to be appointed by the president on the advice of the union cabinet. After 1993 (the Second
Judges' Case), no minister, or even the executive collectively, can suggest any names to the
president, who ultimately decides on appointing them from a list of names recommended only by
the collegium of the judiciary. Simultaneously, as held in that judgment, the executive was given the
power to reject a recommended name. However, according to some,the executive has not been diligent
in using this power to reject the names of bad candidates recommended by the judiciary.
The collegium system has come under a fair amount of criticism.In 2015, the parliament passed a law to
replace the collegium with a National Judicial Appointments Commission (NJAC). This was struck down
as unconstitutional by the supreme court, in the Fourth Judges' Case, as the new system would
undermine the independence of the judiciary. Putting the old system of the collegium back, the court
invited suggestions, even from the general public, on how to improve the collegium system, broadly
along the lines of – setting up an eligibility criteria for appointments, a permanent secretariat to help the
collegium sift through material on potential candidates, infusing more transparency into the selection
process, grievance redressal and any other suggestion not in these four categories, like transfer of
judges This resulted in the court asking the government and the collegium to finalize the memorandum
of procedure incorporating the above.
Once, in 2009, the recommendation for the appointment of a judge of a high court made by the
collegium of that court, had come to be challenged in the supreme court. The court held that who could
become a judge was a matter of fact, and any person had a right to question it. But who should become
a judge was a matter of opinion and could not be questioned. As long as an effective consultation took
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place within a collegium in arriving at that opinion, the content or material placed before it to form the
opinion could not be called for scrutiny in court.

Tenure
Supreme court judges retire at the age of 65. However, there have been suggestions from the judges of the
Supreme Court of India to provide for a fixed term for the judges including the Chief Justice of India.

Qualification
The article further laid out that to become elevated as a judge of the top court, a person should serve as
a judge of one High court or more (continuously), for at least five years or the person should be an
advocate in the High court or the Supreme court for at least 10 years or a distinguished jurist.

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