LEGAL METHOD AND INTRODUCTION TO LEGAL SYSTEMSemester – I

B.A.LL.B. (Hons.)

STUDY MATERIAL:

Module – I Nature and Function of LawUnit-I

a) Meaning and Definition of Lawb) Function and Purpose of Lawc) Classification of Law

i) Public and Private Lawii) Substantive and Procedural Lawiii) Municipal and International Law

d) Hart’s Concept of Law and the Indian Constitution (2002) 2 SCC (J) 1

Introduction:Law, in its widest sense, means and involves a uniformity of behavior, a

constancy of happenings or a cause of events, rules of action, whether in the

phenomena of nature or in the ways 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:

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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 State’s power of constrain”.

According to Pound, “Law is the body of principles recognized or enforced by

public and regular tribunals in the administration of justice.”

5. Realistic Definition:

Holmes J. says that “the prophesy of what Courts will do, in fact, and nothing

more pretentious, are what I mean by law”. According to realists, the formal law is

simply a guess as to what the Courts would decide and the law is that what the Courts

actually decide.

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The modern definition given by Dias is “Law consists largely of ‘ought’

(normative) propositions prescribing how people ought to behave. The ‘oughts’ of

laws are variously dictated by social, moral, economic, political and other purposes”.

Subject-matter of Law

Dias lists out the subject material of laws as follows:

1. duties prescribed how people ought, or ought not, to behave with regard to

others who are said to have corrective claims or rights,

2. liberties or freedom to act and not to act;

3. powers to alter existing legal situations,

4. immunities form having existing legal situations altered;

5. means of achieving legal ends;

6. definitions;

7. location of legal relationships;

8. principles, doctrines and standards.

Function and Purpose of Law

Law is an instrument of society and its objects are achievement of justice,

stability and peaceful change.

1. Justice and Law

The ultimate purpose of law is justice. Salmond says that law is “the body of

principles recognized and applied by the State in administration of justice.

According to Salmond, justice consists in giving to every man his own. The

rule of justice determines the sphere of individual liberty in the pursuit of individual

welfare, so as to confine that liberty within the limits which are consistent with the

general welfare of mankind, within the sphere of liberty so delimited for every man

by the rule of justice, he is left free to seek his own interest in accordance with the

rule of wisdom.

2. Stability

Law must aim at stability in society. To achieve stability a balance has to be

struck not between persons, but between interests. The law has to maximize the

fulfillment of the interests of the community and its members and to promote the

smooth running on the machinery of society. Indeed, the motion of law represents the

need of uniformity and certainty to achieve stability. The stability and security for

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maintaining the social order is derived from uniform unchanging and certain rules of

law.

3. Peaceful Change

The existing rules may not provide solution to the cases of changed times and

no rule can provide for every possible case. There is need for flexibility. Flexibility is

necessary to enable the law to adapt itself to social change. As society alters, new

social, political and economic requirements creep in and the needs of the people

change from time to time.

Classification of Law

There are four main divisions of law:

1. Municipal law and International law

2. Private and Public law

3. Criminal law and Civil law

4. Substantive law and Procedural law.

Municipal Law:

Municipal law is the law applied within a State. It is also called as ‘ lex

proprium civitatis’. The Roman called it the jus civile, the corpus juris civilis. It is the

law of civitas that is the State. It is the part of imperative law.

The characteristic of civil law are:

1. The Municipal law is a positive law. It deals with law as it is.

2. The Municipal law has a uniformity established through the system of judicial

precedents.

3. The Municipal law is in the nature of enjoyments by the State.

4. The Municipal law is territorial i.e. it applies only in the territories of the

State.

Now we can state the Municipal law is all that body of principles, decisions

and enactments made, passed or approved by the legally constituted authorities or

agencies in a State, for regulating rights, duties and liabilities (between the State and

the citizens, as also the citizens inter se, and the citizens of the State in relation to

members of foreign States) and enforced through the machinery of the judicial

process securing obedience to the governing authority in the State.

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The Municipal Law or National Law is divided into two classes: Public Law

and Private Law.

International Law:

The term ‘International Law’ was coined by Jeremy Bentham in 1780.

Oppenheim defines International Law as “a body of rules for human conduct within a

community which by common consent of this community shall be enforced by

external power”. This definition postulates three conditions as essential for existence

of International Law. There must be, first, a community; secondly, a body of rules for

human conducts therein; and thirdly, the common consent of that community for the

enforcement of those rules by external power. International Law may be classified

into Public Law and Private Law.

Public International Law:

Public International Law is the body of legal rules which applies between

Sovereign States and such other entities as have been granted international

personality.

It is the aggregate of rules to which nations have agreed to conform in their

conducts towards one another. It includes international status, and deals with

questions relating to peace, war and neutrality.

Private International Law:

Private International Law (conflict of laws) is the system of law, in a country,

governing the relations of the citizens of that country, in international matters, matters

affecting foreign contracts and foreign transactions. It applies to individuals and not to

States. Private International Law deals primarily with private rights, duties, liabilities

of citizens, inter se in cases of foreign or international transactions.

Private Law

Private Law is concerned with the matters concerning the individual more than

the public. It regulates and governs the relations of citizens with each other. The

parties in such cases are private individuals and the State adjudicates the matters in

dispute between individuals through its judicial organs.

Private civil law deals with matters such as contracts, insurance, carriage,

damage, for personal injury, civil wrongs, agency, bailment, sale of goods,

partnership, regulation of companies, insolvency, arbitration, negotiable instruments,

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transfer of property, trusts and the like. In democratic countries, the Private Law

regulates the major part of the social life.

In the classification of private life there is great difficulty. Different jurists

have given different classifications. A very general classification is as follows: 1) the

law of persons; 2) the law of property; 3) the law of obligations; 4) the conflict of

laws.

Public Law

Public law is such part of the law as deals with the Constitution and working

of the State, the functioning of its various departments, the relation between the State

and its citizens (including the rights and duties of the State and its citizens inter se),

the working of the administrative departments of the Government, Acts, rules and

regulations relating to public welfare and so on.

The State activities are largely regulated by public law. The public law

determines and regulates the organization and functioning of the State and determines

the relation of the State with its subjects. In public law, provisions are made with a

view to promote social objectives and to protect the collective rather than individual

interests. Public Law may be divided into three parts: (i) Constitutional Law; (ii)

Administrative Law and (iii) Criminal Law.

Constitutional Law:

Hibbert defines Constitutional Law as “body of rules governing the relation

between the sovereign and his subjects and the different parts of the sovereign body”.

According to Dicey, “Constitutional Law includes all rules which directly or

indirectly affect the distinction or exercise of the sovereign power of the State. Hence

it includes all rules which define the members of the sovereign power, all rules which

regulate the relation of such members to each other, or which determine the mode in

which the sovereign power or the members thereof, exercise their authority”.

Administrative Law:

The term ‘Administrative Law’ is technically known as ‘Droit Administratif’

meaning Administrative Law and rules concerning the administration of the executive

departments of a State. Administrative Law deals with the structure, powers and

functions of the organs of administration; the limits of their powers; the methods and

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procedures followed by them in exercising their powers and functions; the methods by

which their powers are controlled including the legal remedies available to a person

against them when his rights are infringed by their operation. It covers legislative and

judicial powers of the executive. It deals with day-to-day activities of officials in

relation to the members of the public. It prescribes the minute details of their duties.

In general it deals with matters of procedure and not of substance.

Dicey defines it as that portion of the French Law which determines:

1. the position and liability of State officials;

2. the rights and liabilities of private individuals in their dealings with officials,

and

3. the procedure by which these rights and liabilities are enforced.

The main consequences that follow from the enforcement of Droit

Administratif are:

1. It protects a servant of the State from the control of the ordinary Courts

for any illegal act if done in bona fide obedience to the orders of his

superior and in the discharge of his official duties.

2. Dispute between private person and the State are determined by

administrative Courts and not by ordinary Courts.

3. In case of conflicts of jurisdiction the administrative Courts have a

decisive voice.

4. The relation of the Government and its officials towards private

citizens are regulated by a body of rules which are different from those

which govern the relation of one private person to another.

Criminal Law

Criminal Law is defined as a body of specific and definite rules regarding

human conduct and behaviour which have been promulgated by political authority

which apply uniformly to all members of all classes of people which the rules refer

and are enforced by punishment administered by the State.

The criminal law deals with the laws relating to crimes, the procedure in

Criminal Courts and the dealing with offenders. It also deals with the rules and

regulations concerning prisons and the treatment of prisoners. Crime is a public

wrong. Blackstone defines crime as “an act committed or omitted in violation of a

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public law forbidding or commanding it”. In Indian Penal Code ‘offence’ is used in

the place of ‘crime’. According to Section 40 of the Indian Penal Code, the word

‘offence’ is an act punishable by the Code.

Criminal Law defines offences and prescribes punishments for them. Its aim is

the prevention of and punishment for offences. Criminal Law is necessary for the

maintenance of order and peace within the State.

The Criminal Law originated as an agency of social control. It originated in

torts or wrongs to individuals. The origin of Criminal Law is due to the conflicts of

interests in different groups. When wrongs were committed, the society took action

against the person committing it and made certain regulations to prevent the repetition

of the same.

The object of Criminal Law is punishment and compensation. It is not the

purpose of Criminal Law to restore the aggrieved to the former position. Criminal

Law allows compensation in the nature of penalty. The basic element is mens rea or

criminal intent which must be present in an act without which it cannot be punished as

a crime.

Civil Law:

Civil Law is that division of Municipal Law which is occupied with the

exposition and enforcement of civil right. Civil Law is concerned with the rights and

duties of individuals towards one another.

The following are some of the laws which fall within the domain of civil law:

1. Law of Property deals with the rights and interests which may be enjoyed in

respect of property;

2. Law of Torts is concerned with civil wrongs such as negligence, nuisance,

defamation etc.

3. Law of Contracts which determines whether an agreement made by parties is

valid or not;

4. Family Law is that branch of the law which defines the rights, duties and

status of the husband and wife, parent and child and other members of

household;

5. Law of Succession is concerned with the devolution of property on the death

of the original owner and other related events.

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In civil cases the parties to the suit mostly are individuals. In Civil Law the

legal action is begun by the private person to establish rights, against another person

or group of persons. The petitioner or plaintiff claims for damages for civil wrongs

against the defendant through a suit in a Civil Court. In civil cases, judgment and

decrees are passed. The main function of civil law is to provide individuals with

remedies which are enforceable in the Courts where they have suffered a wrong

which is recognized by statute or decided cases.

Substantive and Procedural Law

Civil Law may be classified into: (i) Substantive Law; (ii) Procedural Law

Substantive Law

Substantive Law is the law that is concerned with the determination of rights,

duties, liberties and legal powers. It refers to the rules and principles defining the

rights, powers and privileges possessed by person whose status is recognized by law,

and the corresponding duties, liabilities and disabilities to which others are subject

under the law. It includes rules of law, civil or criminal, defining a civil wrong or a

criminal offence. It is also concerned with the ends which the administration of justice

seeks. Definition of civil wrongs and crimes, prescription of remedies and

punishments are examples of Substantive Law. The Substantive Law includes Indian

Contract Act, 1872, Transfer of Property Act, 1882, Hindu, Mohammedan Laws, Law

of Torts, Indian Penal Code, 1860 etc.

Procedural Law

According to Sir John Salmond, the Law of Procedure may be defined as that

branch of the law which governs the process of litigation. It is the law of actions and

includes all legal proceedings whether civil or criminal. Procedural Law deals with

the means and instrument as by which those ends can be achieved. It regulates the

conduct and relations of Courts and litigants in respect of litigation itself. It regulates

the conduct of affairs in the course of judicial proceedings. Jeremy Bentham used the

term ‘Adjective Law’ for the Procedural Law.

The Procedural Law is the law which deals with the mode in which a process

of law may be set in motion; it deals with the procedure and evidence by which

substantive remedies given under the law can be enforced. It deals with the form in

which actions may be brought in Courts of Law, the kinds of such actions and legal

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processes, the mode in which each of the processes of law may be set in motion, e.g.

by summons, plaints, complaints, petitions and writs. It deals with matters such as the

jurisdiction of the Courts, the way in which the hearing or the trial is to be conducted,

judgments of the Courts, and the execution of decrees, orders and sentences passed by

the Court. There is a Procedural Law for criminal cases and trials; and we have a

procedure for civil cases. Generally, the Code of Civil Procedure, 1908, the Code of

Criminal Procedure, 1973, the Evidence Act, etc. are procedural laws.

According to Pollock, “The most important branches of law of procedure are

the rules of pleading and the rules of evidence. It is obvious that, if litigation is to be

concluded at all, a Court of Justice must have some kind of rule or usage for bringing

the dispute to one point or some certain points, and for keeping the discussion of

contested matters of fact within reasonable bounds. Rules of pleading are those which

the parties must follow in informing the Court of the question before it for decision,

and in any case of difficulty enabling the Court to define the question or questions.

Rules of evidence are those by which the proof of disputed facts is favoured and

limited. In England practice the sharp distinction between the office of the Court as

Judge of the Law and Jury as Judge of the fact has had a profound effect in shaping

and elaborating both classes of rules”.

Some laws are predominantly procedural and some laws are mainly

substantive. But a Substantive Law also may have Procedural Law in it. Though

Company Law is regarded rather as a Substantive Law, it has much of the procedural

character in it. Thus Company Law contains provisions regarding the mode of

formation of companies, the mode of doing business through internal regulations of

companies. The Company Law further provides special procedures for increase,

reduction, reorganization of share capital, alteration of the objects of the company,

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

meetings, passage of resolutions, the issue of notices, rules and modes of surrender,

forfeiture of and lien over shares, and liquidation procedures. So also insolvency law

largely lays down procedural provisions.

The Law of Evidence has a unique place. It is considered as both Substantive

and Procedural Law.

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Module – II Sources of LawUnit-I

a) Sources of Lawi) Customii) Precedent iii) Legislation

b) Custom as a Source of Law in India- M.P. Jain

Introduction

The term “sources of law” has been used in different senses by different

writers and different views have been expressed from time to time. Sometimes, the

term is used in the sense of the sovereign or the State from which law derives its force

or validity. Sometimes it is used to denote the causes of law or the matter of which

law is composed. It is also used to point out the origin or the beginning which gave

rise to the stream of law. C.K. Allen uses it in the sense of agencies through which the

rules of conduct acquired the character of law by becoming definite, uniform and

compulsory. Vinogradoff uses it as the process by which the rule of law may be

evolved. According to Prof. Fuller, the problem of “sources” in the literature of

jurisprudence relates to the question: “Where does the judge obtain the rules by which

to decide cases? In this sense, among the sources of law will commonly be listed

statutes, judicial precedents, custom, opinion of experts, morality and equity.”

Moreover, the three main sources of law are recognized in jurisprudence such

as Legislation, Precedent and Custom.

Legislation

Legislation is the making of law by formal and express declaration of rules by

some authority in the body politics, which is recognized by the courts of law as

competent for that purpose. Law which has its origin in legislation is called enacted

law. It is also called statute law, enacted law, written law, enactment, etc. Statute is an

edict of the legislature, an Act of Parliament. Generally, statutes are made to

materialize certain purposes. According to the purposes it is classified. A statute that

declares a new rule is called declaratory statute. Statute which seeks to alter common

law rule is known as remedial statute. Statute which seeks to alter earlier law is

known as amending statute. Statute which is made with a view to consolidate already

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

penalty is known as the Penal statute.

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

of a statute followed by various countries. However, every statute comprises formal

and material portions. The formal portion includes: (i) The long title, (ii) The

Preamble, (iii) The short title and (iv) commencement and extent clause. But the

material portion includes: (i) Definitions (ii) Operative sections, (iii) Procedural

provisions, (iv) Exceptions, (v) Provisions regarding delegated Legislation and (vi)

Repeal and Amendment clause.

Precedent

Judicial decisions form an important source of law. It was on the raw materials

of customs that the judges fashioned up rules of law. Like sculptors working on

marble, the judges worked on the raw materials of custom and thus made a valuable

contribution to the law of the land.

Precedents establish the law by the recognition and application of new rules by

the courts themselves in the administration of justice. Precedents produce case-laws.

Precedents denote the law made by a declaration and application thereof by the court

in a decision in the course of its administration of justice.

Generally, a judge is bound to decide all the cases taken to him for

adjudication. He cannot leave a case undecided on the ground that there is no law

covering the point. If the question before him is not covered by any existing law, he

will have to decide it “on principle”, that is to say, he has to formulate the legal

principle relevant to the case in accordance therewith. The principle that he

formulated for deciding the case will be law for subsequent like cases. Again,

everything said in a judgment is not reckoned as law. Only the ratio decidendi therein

forms law.

Custom

Law based on custom is known as customary law. Custom is one of the most

fruitful sources of law. Custom is to society what law is to the State. Each is the

expression and realization to the measure of man’s insight and ability of the principles

of right and justice.

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Custom is the rule of action voluntarily and uniformly observed by the people.

It embodies a rule of conduct approved and accepted by the community for

generations. There are norms of conduct evolved from actual social life. For getting

recognition as law, custom must satisfy the following conditions: (i) Certainty, (ii)

Conformity with statute law, (iii) Consistency with other customs, (iv) Continuity, (v)

Immemorial antiquity, (vi) Observance as of right, (vii) Peaceableness, and (viii)

Reasonableness.

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

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

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Module – III Fundamentals of Statutory InterpretationUnit-I

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

Introduction

Statutory interpretation is the process of interpreting and applying legislation.

Some amount of interpretation is always necessary when case involves a statute.

Sometimes the words of a statute have a plain and straightforward meaning. But in

most cases, there is some ambiguity or vagueness in the words of the statute that must

be resolved by the judge. To find the meanings of statutes, judges use various tools

and methods of statutory interpretation, including traditional canons of statutory

interpretation, legislative history, and purpose. In common law jurisdictions, the

judiciary may apply rules of statutory interpretation to legislation enacted by the

legislature or to delegated legislation such as administrative agency regulations.

What is Statute Law?

Statute is defined as law which is passed by the Parliament and the various

state legislatures. This statute is the basis for statutory law. The legislature passes

statutes which are later put into the central code of laws or pertinent state code of

laws. Statute law also includes local ordinances, which is a statute passed by a

government to guard areas not covered by central or state laws.

Statutory law or statute law is written law (as opposed to oral or customary

law) set down by a legislature (as opposed to regulatory law promulgated by the

executive branch or common law of the judiciary). Statutes are enacted in response to

a perceived need to clarify the functioning of government, improve civil order, to

codify existing law, or for an individual or company to obtain special treatment.

Examples of statutory law comprehend traditional civil law and modern civil code

systems in contrast to common law.

Rules of Interpretation

There are three different rules of interpretation such as: (1) the literal or plain

meaning rule, (2) The Golden Rule, and (3) The Mischief Rule.

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Literal Rule or Plain Meaning Rule

If the precise words are plain and unambiguous, in our judgment, we are

bound to construe them in their ordinary sense, even though it do lead, in our view of

the case, to an absurdity or manifest injustice. According to R.W.M. Dias that there is

in the first place, an unfortunate tendency to imagine that the courts are giving effects

to the intention of Parliament on the hypothesis that “the words themselves do, in

such a case, best declare the intention of the law giver.” But it would seem that

whenever the “literal rule” is applied, any reference to the intention of Parliament is

better avoided. Secondly, the “Plain meaning rule” suffers from the inherent

weakness, that is, it is not always easy to say whether a word is “Plain” or not. Thus,

the literal rule in his opinion needs to be understood subject to the following five

explanatory riders: (i) The Statute may itself provide a special meaning for a term,

which is usually to be found in the interpretation section, (ii) Technical words are

given their ordinary technical meaning if the statute has not specified any other, (iii)

Words will not be inserted by implication, (iv) Words undergo shifts in meaning in

the course of time, (v) Finally, and by no means the least, it should always be

remembered that words acquire significance from their context.

Golden Rule

The Golden rule departs from the strictly literal rule inasmuch as according to

the literal rule, the plain meaning has to be adhered to even to the extent of absurdity.

The Golden rule of interpretation adopted in English law is that “In constructing

statutes and all written instruments, the grammatical and ordinary sense of the words

is to be adhered to, unless they would lead to some absurdity or some repugnance or

inconsistency, but no further.” Thus it is, no doubt true that it is not the function of the

Courts to fill in gaps and omissions, but in exceptional cases, the Courts have to

perform this function in accordance with the golden rule of interpretation. Again, to

apply the words literally is to defeat the obvious intention of the legislature and to

produce a wholly unreasonable result. To achieve the obvious intention and to

produce a reasonable result we must do some violence to the words.

Mischief Rule

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

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then only will it make sense and the Court will also be doing its duty of merging the

enactment into the general system of law taking into account its policy. As such it is

the duty of the judge to make such construction of a statute as shall suppress the

mischief and advance the remedy. In other words, it is a sound rule of interpretation

that a statute should be so constructed as to prevent the mischief and advance the

remedy according to the real intention of the makers.

All the above three rules have resulted from two main approaches. In literal or

plain meaning rule and golden rule it is referential approach and in mischief rule it is

purposive approach. However, ordinarily, the courts must follow literal unless there

are adequate reasons to follow the logical interpretation.

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Module – IV Judgment Analysis and PrecedentUnit-I

a) Case Law in the study of Legal Methodb) Studying Law under the Case Method c) What is Precedent?d) Determining the Ratio-decidendi of a Casee) Understanding Law Reports

What is the Ratio decidendi?

The term ratio decidendi is a Latin phrase which means the “the reason for

deciding”. What exactly does this mean? In simple terms, a ratio is a ruling on a point

of law. However, exactly what point of law has been decided depends on the facts of

the case.

What are Obiter dicta?

An Obiter dicta is a Latin phrase meaning “things said by the way”. Obiter

dicta are not binding (unlike the ratio), but they may be regarded as persuasive in a

future decision. The weight given to dicta usually depends on the seniority of the

court and the eminence of the judge in question.

Obiter dicta are judicial opinions on points of law which are not directly

relevant to the case in question. They are made when a judge chooses to give some

indication of how he or she would decide a case similar, but not identical, to case

under consideration. These statements are often meant to clarify the legal principle

which the judge proposes to apply in his or her judgement. For this reason, obiter

dicta often take the form of analogies, illustrations, points of contrast or conclusions

based on hypothetical situations. Obiter dicta in one case might be adopted as ratio

decidendi in subsequent cases. This occurs when a situation regarded as hypothetical

by one judge arises in a subsequent case.

Distinguishing between ratio and obiter dicta is not always simple. When

questioned regarding the difference between ratio and obiter, Lord Asquith once

remarked that: “The rule is quite simple: If you agree with the other bloke you say it

is part of the ratio; if you don't you say it is obiter dictum, with the implication that he

is a congenial idiot”. Although intended humorously, this remark has a good measure

of truth.

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Ratio decidendi and Obiter dicta

1. A ratio decidendi is not an abstract principle, to be applied in a deductive fashion

to a later case. Instead the ratio is a ruling on a point of law in relation to a

specific case.

2. Only the ratio binds an inferior court. Cases themselves do not bind.

3. If the court is not required to make a ruling on a point of law, its decision will

not give rise to a ratio.

4. There is no requirement for each judgement to contain a single ratio and no

more. Multiple ratios are quite normal.

5. Not every statement of law contained in a decision is necessarily ratio or obiter.

A judge may refer to a principle only to express his or her disagreement or for

the sake of completeness. For a statement of law to be ratio or obiter, the judge

must express his or her explicit agreement with the principle.

6. These are not mere niceties of legal doctrine. Bearing these points in mind will

help you when you come to identifying the ratio in a judgement.

.

Ratio in Appellate Decisions

The problems associated with identifying the ratio in the case decided by an

individual judge are multiplied in the case of appellate decisions. Most appellate

courts sit with an uneven number of judges. To discover the ratio of an appellate

decision, you need to determine the ratio in the case of each individual judgement.

The rule is that only the ratios contained in the majority judgements need to be

considered. If a majority of judges agree on the same reasoning, you have identified a

single ratio. Otherwise, there might be multiple ratios, or even none.

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Module – V Legal and Judicial ProcessUnit-I

a) Parliamentary Procedureb) Concept of Rule of Lawc) Doctrine of Separation of Powerd) Classification of Administrative Actione) Rule Making Power of Administration (Delegated Legislation)

Unit-IIa) Judicial Activism- Justice M.N. Raob) Judicial Review of Administrative Actionc) Social Action Litigation (P.I.L.)

i) Locus Standi d) Legitimacy of Judicial Activism e) Competence of Two Judge Benches of Supreme Court to refer Cases to

Larger Benches- Dr. R. Prakash f) Disciplining Division Benches of Two Judges of the Supreme Court-

T.R. Andhyarjuna g) Prospective Overruling and Judicial Restrain

Introduction

The first Parliament of India called the Provisional Parliament came into being

with the commencement of the Constitution and the ‘Sovereign, Democratic and

Republic of India’ on 26th January, 1950. Thus the Parliament along with the

Constitution and the Republic have completed more than half-a-century of their life.

When India achieved its independence and the founding fathers sat down to

frame a Constitution, they adopted representative parliamentary democracy as the

model of polity most suited to India’s needs, ethos and experience. Ideally, in any

democratic polity, sovereignty derives its legitimacy. And, the will of the people must

manifest itself through Parliament. Parliament is expected to mirror the hopes and

aspirations of the people. It is in this forum that the ideas, the ideals, the fears and

even the frustrations of the people can find expression. It is for this reason that the

institution of Parliament has been accorded a place of primacy in our democratic

polity.

Parliamentary procedure is intended to facilitate debate and discussion on

problems and perceptions of the people. Parliamentary institutions are ever evolving,

ever in the making. Though the basic principles may remain the same, parliamentary

techniques, practices and procedures undergo changes, gradually adapting themselves

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to the changing needs of the times. Parliamentary system is said to be based heavily

on past precedents. But, in actual practice, it is extremely difficult to find exact

precedents. Every difficult problem that develops in Parliament seems to be entirely

different and without parallel and therefore one requiring fresh handling. Precedents

can guide and help but not dictate the precise decision or course of action. Every new

situation, the way it develops and the way it is handled, creates a new precedent and

in the long run may give birth to new rules and regulations. Thus, subtle changes in

Parliamentary procedure take place and new practices keep developing almost

constantly.

Concept of Rule of Law

The word rule comes from “regle” and law from “lagu” roughly translating

to “supremacy of law”.1

The basic function of rule of law is to ensure justice, peace and order in

society. It has the two following aspects:

i) Substantive Content: This implies that the content of law should reflect the

basic standards of society, exhibit regularity and consistency and place the

human personality above all else. It should include freedom from

government intervention and right to minimum material means. Thus the

obligation of citizens to obey the law should arise out of its morally

justifiable nature.

ii) Procedural Machinery: This includes legal institutions, procedures and

traditions all of which must pay attention to the judgment of individuals

and the values of society. The legislature, executive, judiciary and the legal

profession have a part to play.2

One definition of the rule of law is:

“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:

1 Prof. P. Surianarayanan, Development of Rule of Law (1st ed., Madurai: Madurai Kamraj University, 1983) at 3.2 N. S. Marsh, International Commission of Jurists - The Rule of Law in a Free Society (Switzerland, 1959) at 191.

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“The safeguards offered by principles, institutions and procedures, different weight

being attached to them in different parts of the world”.3

The rule of law, comprising the principles of equality and due process, exists

in different forms in each country. It may be contained in the power of judicial

review, the separation of powers, the doctrine of ultra vires (prevents state organs

from proceeding beyond their scope), principles of equity and statutory

interpretation.4

Origin

The concept of rule of law was first written by the Greek thinkers. Plato, in his

work “The Laws” writes “In any great state, the law must be the ultimate sovereign,

and not any person whatsoever” exhibiting a clear understanding of rule of law.

Aristotle too, in “Politics” says that “the legislator’s task is to frame a society that

shall make the good life possible”.5

The Magna Carta (1215) contains several clauses that reflect the principles of

rule of law among them clause XXXIX – “No freeman shall be arrested or imprisoned

or deprived of his land or banished or in any way molested save by the lawful

judgment of his peers or by the law of the land”.

In the modern period, John Locke the propounder of one of the Social

Contract Theories laid down several principles of the rule of law in the course of his

work. Firstly, the same laws must exist for “for the favourite at Court, and the

countryman at plough”. Secondly, laws should be designed for the good of the people.

Thirdly, the state cannot raise property taxes without the consent of the people.

Fourthly, the legislative may not transfer law making power to any other body.6

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

excessive and unlawful use of authority. It was also laid down that the state had to be

guided by reasonable standards and remain within legally prescribed limits.7

3 Ibid at 196-197.4 T. R. S. Allan, Constitutional Justice – A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 1-29.5 Supra note 1, at 6-8.6 Ibid at 8-9.7 Ibid at 9-13.

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Albert Venn Dicey on the Rule of Law

In discussing the rule of law, the views of Albert Venn Dicey put forth in his

“Introduction to the Law of the Constitution”, are indispensable. His notions have

been debated and criticized by other authors and thinkers. To him the main

components of rule of law are:

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

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

the ordinary legal manner.

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

iii) The General principles laid out in the Constitution. He advocates that such

rights be guaranteed by an unwritten Constitution as in England where

fundamental rights have been set down over time through case law. This

way, these rights cannot be taken away even during an emergency because

to do so would require the destruction of the entire legal system.8

However the supremacy of the Parliament in England which takes away the

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

.

The Rule of Law Concept Map8 A. Appadorai, The Substance of Politics (11th ed., Madras: Oxford University Press, 1975) at 279-280.9 Supra note 4, at 13-15.

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Doctrine of Separation of Power

23

There are three distinct activities in every government through which the will

of the people are expressed. These are the legislative, executive and judicial functions

of the government. Corresponding to these three activities there are three organs of

the government, namely the legislature, the executive and the judiciary. The

legislative organ of the state makes laws, the executive enforces them and the

judiciary applies them to the specific cases arising out of the breach of law. Each

organ while performing its activities tends to interfere in the sphere of working of

another functionary because a strict demarcation of functions is not possible in their

dealings with the general public. Thus, even when acting in ambit of their own power,

overlapping functions tend to appear amongst these organs. The question which

assumes significance over here is that what should be the relation among these three

organs of the state. Whether there should be complete separation of powers or there

should be co-ordination among them.

Background

It is widely accepted that for a political system to be stable, the holders of

power need to be balanced off against each other. The principle of separation of

powers deals with the mutual relations among the three organs of the government,

namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness

in the functioning of the three organs and hence a strict demarcation of power is the

aim sought to be achieved by this principle. This doctrine signifies the fact that one

person or body of persons should not exercise all the three powers of the government.

Montesquieu, a French scholar, found that concentration of power in one person or a

group of persons results in tyranny. And therefore for decentralization of power to

check arbitrariness, he felt the need for vesting the governmental power in three

different organs, the legislature, the executive, and the judiciary. The principle implies

that each organ should be independent of the other and that no organ should perform

functions that belong to the other.

Montesquieu in the following words stated the Doctrine of Separation of

Powers-

There would be an end of everything, were the same man or same body,

whether of the nobles or of the people, to exercise those three powers, that of enacting

laws, that of executing the public resolutions, and of trying the causes of individuals.

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Through his doctrine Montesquieu tried to explain that the union of the

executive and the legislative power would lead to the despotism of the executive, for

it could get whatever laws it wanted to have, whenever it wanted them. Similarly the

union of the legislative power and the judiciary would provide no defence for the

individual against the state. The importance of the doctrine lies in the fact that it seeks

to preserve the human liberty by avoiding concentration of powers in one person or

body of persons.

The same was expounded by the Madison as- “The accumulation of all powers,

legislative, executive and judicial, in the same hands whether of one, a few, or many

and whether hereditary, self-appointed or elective, may justly be pronounced the very

definition of tyranny”.

Therefore, separation of powers doctrine acts as a check against Tyrannical rule.

The purpose underlying the separation doctrine is to diffuse governmental authority

so as to prevent absolutism and guard against arbitrary and tyrannical powers of the

state, and to allocate each function to the institution best suited to discharge it.

Classification of Administrative Action

Administrative action is a comprehensive term and defies exact definition. In

modern times the administrative process as a by-product of intensive form of

government cuts across the traditional classification of governmental powers and

combines into one all the powers which were traditionally exercised by three different

organs of the State. Therefore, there is a general agreement among the writers on

administrative law that any attempt of classifying administrative functions on any

conceptual basis is not only impossible but also futile. Even then a student of

administrative law is compelled to delve into the field of classification because the

present-day law especially relating to judicial review freely employs conceptual

classification of administrative action. Thus, speaking generally, an administrative

action can be classified into four categories:

(a) Rule-making action or quasi-legislative action.

(b) Rule-decision action or quasi-judicial action.

(c) Rule-application action or administrative action.

(d) Ministerial action or pure administrative action.

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Rule Making Power of Administration (Delegated Legislation)

With the growth of the administrative process in the Twentieth Century,

administrative rule-making or delegated legislation has assumed tremendous

proportions and importance. Today the bulk of the law which governs people comes

not from the legislature but from the chambers of administrators. The fact is that the

direct legislation of Parliament is not complete, unless it is read with the help of rules

and regulations framed thereunder; otherwise by itself it becomes misleading.

In the present day context of free market economy there has been a

tremendous growth of administrative and regulatory forces which has made

outsourcing of law-making power to the administrative authorities a compulsive

necessity. Therefore, legislature limits its functions to merely laying down policy and

guidelines of the law, outsourcing all ancillary law making power to the

administrative authorities to make law relevant to the needs of the people.

The term delegated legislation is difficult to define. However, if defined, in a

simple way, delegated legislation refers to all law-making which takes place outside

the legislature and is generally expressed as rules, regulations, bye-laws, orders,

schemes, directions or notifications, etc. In other words when an instrument of a

legislative nature is made by an authority in exercise of power delegated or conferred

by the legislature it is called subordinate legislation as “that which proceeds from any

authority other than the sovereign power and is, therefore, dependent for its continued

existence and validity on some superior or supreme authority. The term delegated

legislation may be used in two senses: it may mean (i) exercise of law-making power

by the administrative authority delegated to it by the legislature, or (ii) the actual

exercise of law-making power itself in the forms of rules and regulations, etc.

Need for Administrative Rule-Making

Delegated legislation is not a new phenomenon. Ever since the statutes came to

be made by Parliament, delegated legislation also came to be made by an authority to

which the power was delegated by Parliament. Going back into history one can find

the Statute of Proclamation, 1539 under which Henry VIII was given extensive

powers to legislate by proclamations. This proves the fact that there was and will

always be the need for delegated legislation. The exigencies of the modern State,

especially social and economic reforms, have given rise to delegated legislation on a

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large scale, so much so that a reasonable fear arises among the people that they are

being ruled by the bureaucracy.

The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws;

as against this the total number of statutory orders and rules passed in the same period

was approximately 25,414. Corresponding figures for States and Union Territories are

not available, but the number of rules issued under the delegated powers may well be

astronomical.

The modern trend is that Parliament passes only a skeletal legislation. A

classical example may be the Imports and Exports (Control) Act, 1947 which contains

only eight sections to provide through the rule-making power delegated to them under

legislation and leaves everything to the administrative agencies and delegates the

whole power to the administrative agency to regulate the whole complex mechanism

of imports and exports. The examples may be multiplied. This trend brings us to the

need matrix of the phenomenon of delegated legislation or administrative rule-

making.

The basis of need matrix of administrative rule-making lies in the fact that the

complexities of modern administration are so baffling and intricate, and bristle with

details, urgencies, difficulties and need for flexibility that our massive legislatures

may not get off to a start if they must directly and comprehensively handle legislative

business in all their plenitude, proliferation and particularization. Therefore, the

delegation of some part of legislative power becomes a compulsive necessity for

viability. If the 525-odd parliamentarians are to focus on every minuscule of

legislative detail leaving nothing to subordinate agencies the annual output may be

both unsatisfactory and negligible. Law-making is not a turn key project, readymade

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

follows:

1. Legislation on ever-widening fronts of a modern Welfare and Service State is

not possible without the technique of delegation. It is trite but correct to say

that even if today Parliament sits all the 365 days in a year and all the 24

hours, it may not give that quantity and quality of law which is required for the

proper functioning of a modern government. Therefore, delegation of rule-

making power is a compulsive necessity. It also gives an advantage to the

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executive, in the sense that a Parliament with an onerous legislative time

schedule may feel tempted to pass skeleton legislation with the details to be

provided by the making of rules and regulations.

1. Today, legislation has become highly technical because of the complexities of

a modern government. Therefore, it is convenient for the legislature to confine

itself to policy statements only, as the legislators are sometimes innocent of

legal and technical skills, and leave the law-making sequence to the

administrative agencies.

2. Ordinary legislative process suffers from the limitation of lack of viability and

experimentation. A law passed by Parliament has to be in force till the next

session of Parliament when it can be repealed. Therefore, in situations which

require adjustments frequently and experimentation, administrative rule-

making is the only answer.

3. In situations where crisis legislation is needed to meet emergent situations,

administrative rule-making is a necessity because the ordinary law-making

process is overburdened with constitutional and administrative technicalities

and involves delay.

4. In some situations it is necessary that the law must not be known to anybody

till it comes into operation. For example, in case of imposition of restrictions

on private ownership, it is necessary that the law must be kept secret till it

comes into immediate operation, otherwise people could arrange their property

rights in such manner as to defeat the purpose of the law. This secrecy can be

achieved only through administrative action because the ordinary legislative

process is always very open.

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

services, administrative rule-making is the only valid proposition.

6. Today, there is a growing emergence of the idea of direct participation in the

structurisation of law by those who are supposed to be governed by it because

indirect participation through their elected representatives more often proves a

myth. Therefore, administrative rule-making is a more convenient and

effective way and provides for this participation.

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One may go on multiplying the factors responsible for the growth of

administrative rule-making, yet the list may not be exhaustive. It will suffice to say

that the technique of administrative rule-making is now regarded as useful, inevitable

and indispensable.

However, one must not lose sight of the fact that though the technique of

administrative rule-making is useful and inevitable yet constitutional legitimation of

unlimited power of delegation to the executive by the legislature may, on occasion, be

subversive of responsible government and erosive of democratic order. At times the

legislature passes only skeletal laws without laying down even a policy in clear terms,

and leaves everything else to the discretion of the administrative agency. Therefore,

the administration armed with the law-making power threatens to overwhelm the little

man by trampling upon his liberty and property. The technocracy and the bureaucracy

which draft subordinate legislation are perhaps well-meaning and well-informed but

insulated from parliamentary audit and isolated from popular pressure and may,

therefore, make law which is socially less communicable, acceptable and effective.

Furthermore, if law-making is taken over by the government it may make its

administration by barrel of secretariat pen. Therefore, if the technique of

administrative rule-making is to serve its laudable task, the norms of the jurisprudence

of delegation of legislative power must be dutifully observed. These norms include a

clear statement of policy, procedural safeguards and control mechanisms.

Judicial Activism

The term ‘Judicial’ is an adjective from French word ‘Judex’ meaning a Judge,

it means or pertaining or appropriate to the administration of justice or courts of

justice or a Judge thereof or in the proceedings therein”. The right to pronounce a

definitive judgment is considered the sine quo non of a Court. The word “Court of

Justice” denotes a Judge who is judge empowered by law to act judicially as a body,

when such judge or body of judges is acting judicially. The word “Judiciary” again is

explained to mean the Judges of a State Collectively.

The term judicial activism is explained in Black’s law Dictionary as,

“Judicial philosophy which motives judges to depart from strict adherence to

judicial precedent in favour of progressive and new social policies which are not

always consistent with the restraint expected of appellate Judges. It is commonly

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marked by decisions calling for social engineering and occasionally these decisions

represent intrusions in the legislative and executive matters.”

Though it is the legislature, which makes the Law, the Judgments rendered

by the Supreme Court and High Courts give the Law a concrete shape, which the

people understand better as the Law. Hence, there is importance of the decision

making process. Justice V. R. Krishana Iyer, the greatest activist Judge, India has so

far seen, feels, judicial activism is a device to accomplish the cherished goal of

social justice. He said,

“After all, social justice is achieved not by lawlessness

process, but legally tuned affirmative action, activist

justicing and benign interpretation within the parameters of

Corpus Juris”.

Judicial Review of Administrative Action

Basic purpose of judicial review is to enforce constitutionalism and to guard

against majoritarianism. Thus an important aspect of public law review is not only the

enforcement of private rights but to keep the administrative and quasi-administrative

machinery within proper control. This aspect of public law review was rightly stressed

by the Supreme Court in S.L. Kapoor v. Jagmohan.10 In this case two non-official

members of the New Delhi Municipal Committee had filed a petition before the

Supreme Court under Article 136 against the governmental action of superseding the

Municipal Committee without complying with the principles of natural justice. During

the pendency of the case, the term of office of the petitioner expired. It was argued that

since the petition has become infructuous, the Court has no power to continue with the

appeal. Rejecting the contention the Apex Court held that since the petition involves

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

10 (1980) 4 SCC 382.

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check the abuse of administrative powers and to enforce accountability on the

operators of these powers.

The power of public law review is exercised by the Supreme Court and High

Courts through writs of certiorari, prohibition, mandamus, quo-warranto and habeas

corpus and also through the exercise of power under Articles 136 and 227 of the

Constitution.

Social Action Litigation (PIL)

Public Interest Litigation (PIL) has been an invaluable innovative judicial

remedy. It has translated the rhetoric of fundamental rights into living reality for at

least some segments of our exploited and downtrodden humanity. Under trial

prisoners languishing in jails for inordinately long periods, inmates of asylums and

care-homes living in sub-human conditions, children working in hazardous

occupations and similar disadvantaged sections.

Public Interest Litigation is the name given to the right of any member of the

public, having sufficient interest to maintain an action for judicial redress of public

injury arising from breach of public duty or violation of some provision of the

constitution or the law and seek enforcement of such public duty and observance of

such constitutional or legal provisions. It is the essence of this rule of law, which

constitutes the core of our constitution, that exercise of the power by the State,

whether it be the legislature or the executive or any other authority, should be within

the constitutional limitations and if any practice is adopted by any one of them which

is in flagrant and systematic violation of its constitutional limitations, the petitioner as

a member of public would have sufficient interest to challenge such practice by filing

a writ petition and it would be constitutional duty of the court to entertain the writ

petition and it would be constitutional duty of the court to entertain the writ petition

and adjudicate upon the validity of such practice. Public Interest Litigation is,

therefore, the new device by which public participation in judicial review of

administrative action is being assured. It is also the new strategy through which access

to justice is being assured even to those who for any reason whatsoever not able to

approach the court to ventilate their grievances. Justice P.N. Bhagwati thought that it

was “essentially a co-operative or collaborative effort on the part of the petitioner, the

State or the public authority and the court to secure observance of constitutional or

31

legal rights, benefits and privileges conferred upon the vulnerable sections of the

community and to reach social justice to them”.

Legitimacy of Judicial Activism

It is significant to note that Supreme Court of India is most powerful apex

court in the world. Unlike the Supreme Court or the House of Lords in England or the

highest courts in Canada or Autralia, the Supreme Court of India can review even a

constitutional amendment and strike it down if it undermines the basic structure of the

Constitution. It can decide the legality of the action of the President of India under

article 356 of the Constitution whereby a state government dismissed. Through public

interest litigation, the Court has granted access to persons inspired by public interest

to invite judicial intervention against abuse of power or misuse or inaction of the

government. Not only was the requirements of locus standi liberalized to facilitate

access but the concept of justiciability was widened to include within judicial purview

actions or inactions that were not considered to be capable of resolution through

judicial process according to traditional notions of justiciability.

Judicial activism is not an aberration. It is an essential aspect of the dynamics

of a constitutional court. It is a counter-majoritarian check on democracy. Judicial

activism, however, does not mean governance by the judiciary. It also must function

within the limits of the judicial process. Within those limits, it performs the function

of legitimizing or, more rarely, stigmatizing the actions of the other organs of

government.

The judiciary is the weakest organ of the State. It becomes strong only when

people repose faith in it. Such faith of the people constitutes the legitimacy of the

Court and of judicial activism. Courts have to continuously strive to sustain their

legitimacy. They do not have to bow to public pressure, rather they have to stand firm

against any pressure. What sustains legitimacy of judicial activism is not its

submission to populism but its capacity to withstand such pressure without sacrificing

impartiality and objectivity. Courts must not only be fair, they must appear to be fair.

Such inarticulate and diffused consensus about the impartiality and integrity of the

judiciary is the source of the Court’s legitimacy.

How is such legitimacy sustained? The myth created by the black letter law

tradition that judges do not make law but merely finds it or interprets it sought to

32

immunize judges from responsibility for their decisions. Mythologization of the

judges also contributed to the sustenance of legitimacy. Those devices for sustaining

legitimacy, however, presupposed the negative and technocratic role of the judges.

They are of no help in sustaining the legitimacy of judicial activism. We have to

explore the myth that judges do not make law. Similarly, we have to recognize that a

constitutional court is political institution. It is political because it determines the

limits of the powers of other organs of government. Being political need not mean

being partisan or unprincipled.

We also have to understand that judges are human beings as fallible as other

human beings are. Judges are bound to have their predilections and those

predilections are bound to influence their judgments. The courts themselves have

imposed restrains on their powers in order to minimize the chances of vagaries arising

out of subjective lapses or prejudices of the judges. The courts are bound to follow

precedents, they are bound to follow the decisions of the higher courts, and they are

bound to follow certain rules of interpretation. Further, decisions of courts are

reasoned and are often subject to appeal or review. These restrictions ensure that the

lapses would be minimal. Criticism of the judgments of the courts would further act

as a corrective to objectionable judgments. Through such processes the courts sustain

their legitimacy.

Competence of Two Judge Benches of Supreme Court to refer Cases to

Larger Benches

The Supreme Court of United States of America consists of nine judges and

every Judge of that court is a party to each of its judgment. But the same is not the

case in our Supreme Court. The Supreme Court of India consists of twenty-six Judges

including the Chief Justice and sits in Division Courts comprising of two Judges,

three Judges, five Judges, or more, and therefore all the Judges do not become party to

each of the judgment pronounced by the Supreme Court of India. In view of the fact

that our Supreme Court 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

33

Bharati case11 reached a Bench of thirteen Hon’ble Judges. In Shakari Prasad Singh

Deo v. Union of India12 a five Judge Constitution Bench held that an amendment of

the Constitution made under Article 368 is “not law” within the meaning of Article

13(2) of the Constitution. In Sajjan Singh v. State of Rajasthan13 another five-Judge

Bench also took the same view. These two decisions were doubted and the correctness

of these decisions was considered by an eleven-Judge Bench in Golak Nath v. State of

Punjab14 wherein by a majority of 6:5, the eleven-Judge Bench prospectively

overruled Shankari Prasad and Sajjan singh decisions and it was held that an

amendment of the Constitution is “law” within the meaning of Article 13(2) of the

Constitution. After this decision, Articles 13 and 368 were amended so as to exclude

the amendments of the Constitution from the purview of Article 13(2). The

correctness of Golak Nath case and the validity of the Constitution (Twenty-fourth

Amendment) Act, 1971 were considered by a larger Bench of thirteen Judges in

Keshavanand Bharati v. State of Kearala wherein Golak Nath case was overruled and

the doctrine of basic structure was propounded.

(For further details refer articles given in Module V).

Disciplining Division Benches of Two Judges of the Supreme Court

In two rulings, two Constitution Benches of five judges presided over by

Bharucha, C.J. in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangh15 and

Pradip Chandra Parija v. Pramod Chandra Patnaik16 have ruled that it was improper

for a Division Bench of two judges to refer the correctness of a judgement of a five-

Judge Bench for reconsideration by another Bench of five Judges as in Bharat

Petroleum case or for a Bench of two Judges to refer the correctness of a decision of

three Judges to a large Bench of five Judges as in Parija case.

According to these rulings, “judicial discipline and propriety” obliged a Bench

of two Judges to follow the judgement of larger Benches. However, it was ruled, that

if the two Judges concluded that the judgement of a larger Bench

11 Keshavanada Bharati v. State of Kerala, (1973) 4 SCC 225.12 AIR 1951 SC 458.13 AIR 1965 SC 845.14 AIR 1967 SC 1643.15 (2001) 4 SCC 448.16 (20020 1 SCC 1.

34

“is so very incorrect that in on circumstances can it be followed, the

proper course for it to adopt is to refer the matter before it to a Bench

of three learned Judges setting out, as has been done here, the reasons

why it could not agree with the earlier judgement. If, then, the Bench

of three learned Judges is incorrect, reference to a Bench of five

learned Judges is justified.”17

(For more details refer to article given in Module V).

Prospective Overruling and Judicial Restrain

The doctrine of prospective overruling originated from the American judicial

system. It was for the first time laid down by Cardozo J. and learned Hand J. The

doctrine aims at overruling a precedent without causing a retrospective effect. The

concept of prospective overruling is now an integral part of legal systems world over.

The basic meaning of prospective overruling is to construe an earlier decision in a

way so as to suit the present day needs, but in such a way that it does not create a

binding effect upon the parties to the original case or other parties bound by the

precedent. The use of this doctrine overrules an earlier laid down precedent with

effect limited to future cases and all the events that occurred before it are bound by

the old precedent itself. In simpler terms it means that the court is laying down a new

law for the future.

There are two aspects to the doctrine of prospective overruling. The first aspect

was laid down by Lord Blackstone, according to this theory Judges don’t make the

law; their job is to define the law. They should however follow the doctrine of Stare

Decisis. The doctrine of Stare Decisis means “to stand by precedent and not to disturb

the settled point of law”; the logic behind this doctrine is that people should not get

confused as to what is legal and what is illegal. The advocates should be able to

clarify to their clients the exact law and not get confused themselves. So accordingly

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

affected retrospectively and which 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

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

35

them if this doctrine is not given effect it will wash away the whole dynamic nature of

law, it will be against the concept of judicial activism. Cardozo J. was of the view that

the law should keep up with the changes occurring in the society, the law has to be

dynamic and not static. If in a new and changed society, the citizens are bound by an

old law it will lead to grave injustice. The Citizens lives are bound by the law of land

should be given laws according to changed needs. Therefore the doctrine of

Prospective Overruling is an important tool in the hand of judiciary to give fair and

timely justice to its citizens.

The concept of the Doctrine of Prospective Overruling has now been accepted

in its full form in India. This doctrine was for the first time applied in India Golak

Nath v. State of Punjab18. The court overruled the decisions laid down in Sajjan Singh

v. State of Rajasthan19 and Shakari Prasad v. Union of India. The honorable Judges of

Supreme Court of India laid down its view on this doctrine in a very substantive way,

by saying “The doctrine of prospective overruling is a modern suitable for a fast

moving society. It does not do away with the doctrine of stare decisis but confines it

to past transactions. While in strict theory it may be said that doctrine involves the

making of law, what the court really does is to declare the law but refuse to give

retroactivity to it. It is really a pragmatic solution reconciling the two conflicting

doctrines, namely, that a court finds the law and that it does make the law but restricts

its operation to the future. It enables the court to bring about a smooth transaction by

correcting its errors without disturbing the impact of those errors on past transactions.

By the application of this doctrine the past may be preserved and the future protected.

However the Supreme Court gave certain restrictions to the usage of the

Doctrine of Prospective Overruling. The court said that this doctrine can only be used

by the apex court and it would be applicable only to the laws and cases relating to the

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

18 AIR 1967 SC 1643.19 AIR 1965 SC 845.

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giving a retrospective effect to the overruled precedent is to be left on the learned

Judges depending on the facts of the case.

However now this situation has changed and this doctrine are applicable to

other statutes also, which again is a very dynamic step taken by the judiciary in order

to meet the ends of justice.

Module – VI Legal Systems in the WorldUnit-I

a) The Court Structure of England and Walesb) History of Common Lawc) Legal System in USAd) Legal System in Francee) Canadian Legal Systemf) Australian Legal/Judicial Systemg) Russian Legal System

Introduction

The diversity of laws in the modern world is a fact. Each political society in

the world has its own legal system, and it often happens that several laws co-exist

within a legal system. In a federal state, in addition to a federal law, there may be laws

of states, provinces or districts. There are moreover laws of communities that have no

political organization at all, such as Canon Law, Muslim Law, Hindu Law and Jewish

Law. There is as well international law which relates to international commerce.

The diversity of law poses a problem since the laws of the world are expressed

in many different languages and forms and since they have evolved in societies where

the social organization, beliefs and social manners vary. As there are classifications in

different sciences, the laws can also be reduced to a limited number of families.

We can divide the legal system and laws into four categories namely, Romano-

Germanic Legal System (Civil Law System), the Common Law Legal System,

Muslim Legal System and the Socialist Legal System.

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.

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After the Norman Conquest in 1066, these customs were brought into a

uniform system. It took the name of Common Law because it was common to all men

within the King’s jurisdiction.

To start a legal process, the claimants had to be granted a writ by the King.

These writs defined rights and obligations which were enforceable only in the King’s

courts. This system contributes to the limitation of the development of the Common

Law. This led to the development of Equity.

Besides, the doctrine of precedent is developed. The decision of the court is

binding on the parties to the action. Further, the principle of the decision may become

binding on other parties in future cases. However, not all of a judgment is binding,

only the “ratio decidendi” is.

EquityIn many cases, claimants had no remedy at Common Law because they were

unable to find a registered writ drawn to suit their claims. So, the unsatisfied people

seized the King, “the fountain of justice”, by a petition. By the end of the fifteenth

century, the Chancellor would deal with petitions in his name. That is why the court

of Chancery was created.

The cases were solved according to the conscience of the King or the

Chancellor. Where decision given to the Common Law remedy was not appropriate,

the Court of Chancery might give relief to its petitioners according to equity and good

conscience.

Conflicts and competition existed between the Common Law Courts and the

Court of Chancery. Equity is consequently subjected of Chancellor’s appreciation.

Equity predominates over the Common Law. As a result, Equity was submitted to the

doctrine of precedent. So, it is necessary to differentiate Common Law from Equity.

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.

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Parliament is composed of the Queen, the House of Lords and the House of

Commons. Parliament is sovereign. A bill must pass through both houses, but by the

Parliamentary Act 1911, the Royal assent may be given to a bill which has not been

passed by the House of Lords.

Parliament may delegate the legislative power to any subordinate body. The

rules of Law can be established without time consuming procedures attending the

passage of a bill through Parliament. Delegated legislation must be “intra vires”, so

within the powers conferred by Parliament, or else it would be void.

European Economic Community

There are conflicts between Community Legislation and National Legislation:

Community Legislation prevails on National Legislation.

The Court Structure in England and Wales

English judicial order is composed of the Supreme Court and lower courts.

The Supreme Court of Judicature is made up of three different courts:

1) The High Court,

2) The Crown Court,

3) The Court of Appeal.

1) The High Court of Justice is composed of three divisions:

a) The Queen’s Bench Division:

The Queen’s Bench Division deals predominantly with civil action in contracts

and torts.

b) The Chancery division:

The Chancery Division is concerned with, inter alia: trusts, mortgages, issues

concerning Company law and intellectual property.

c) The Family division:

The Family division principally hears cases of divorce, adoption, as well as

matters affecting children.

2) Crown Court:

It has jurisdiction over serious criminal offences.

3) Court of Appeal

The Court of appeal is an appellate jurisdiction within the Supreme Court of

Judicature.

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The House of Lords

The appeal against decisions of the Court of Appeal is brought before the

appellate committee of the House of Lords. The appeal is not a right but it must be

granted. The House of Lords is the Supreme Court, also in civil matters, for England

and the rest of the United Kingdom.

Privy Council

It gives a ruling about appeals made against the decisions of the Supreme

Courts of the United Kingdom overseas territories or countries which are members of

the commonwealth and have accepted the jurisdiction of the Privy Council (Jamaica,

Gibraltar etc.).

Lower Courts

In civil matters, the Lower Courts are the County Courts which have an

important role in the administration of civil justice in England.

The High Court of Justice hears claims of less than 15000 pounds. Claims for

less than 500 pounds are normally subject to a procedure known as the small claims

track which is a swifter and cheaper means of resolving small disputes.

In criminal matters, summary offences are judged by magistrates, who are

laymen or women known as justice of the peace. They are not remunerated. However,

in London and other cities, justices of the peace have now been replaced by

professional full-time judges. The Judges are appointed by the Queen, on the

suggestion of the Lord Chancellor; they must have seven years practice as a Barrister

or Solicitor.

The Civil and Criminal Courts

There is a clear separation and distinction between civil courts, which settle

disputes between people (such as property division after a divorce), and criminal

courts that prosecute those who break the law. Crimes are categorized as minor

offences (‘misdemeanours’) or serious violations of the law (‘felonies’).

Misdemeanours include offences such as dropping litter, illegal parking or jay-

walking, and are usually dealt with by a fine without a court appearance. Felonies,

which include robbery and drug dealing, are tried in a court of law and those found

guilty are generally sentenced to prison. In many counties and cities, there are often

eccentric local laws (usually relating to misdemeanours rather than felonies).

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People who commit misdemeanours may be issued a summons (unsuspecting

foreigners who violate local by-laws may be let off with a warning), while anyone

committing a felony is arrested. An arrest almost always involves being ‘frisked’ for

concealed weapons, handcuffed and read your rights. You must be advised of your

constitutional rights when arrested. These include the right to remain silent, the right

to have a lawyer present during questioning, and the right to have a free court-

appointed lawyer if you cannot afford one. You will be asked if you wish to waive

your rights. This is not recommended, as any statement you make can then be used

against you in a court of law.

Module – VII Indian Legal SystemUnit-I

a) Judicial System: Hierarchy of Courtsb) Indian Court Structurec) Supreme Court of India (Jurisdiction)

Introduction

The Indian Legal System is one of the oldest legal systems in the entire history

of the world. It has altered as well as developed over the past few centuries to absorb

inferences from the legal systems across the world. The Constitution of India is the

fountainhead of the Indian Legal System. It demonstrates the Anglo-Saxon character

of judiciary which is basically drawn from the British Legal System.

The Primary Origins of Law:

The Indian Constitution

Customary law

Case law, and

Statutes (legislation).

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Among these, the statutes are operated by the Parliament, union territory

legislatures and state legislatures. There are mainly two categories under which the

Indian legal system operates, these include-

Indian Civil Law and

Criminal Law

India is a land of diversified culture, local customs and various conventions

which are not in opposition to ethics. People of different religions as well as traditions

are regulated by all the different sets of personal laws in order to relate to family

affairs.

Classifications of Indian legal system:

The judicial system or Indian legal system is a unique feature of the Indian

Constitution. It is an integrated system of courts that administer both state and union

laws. The Supreme Court of India is the uppermost part in the Indian legal system.

Under this, each state or a group of states possesses High Courts. There are several

subordinate courts under these High Courts.

Basics of Indian Legal System:

The President of India appoints the Chief Justice and the other judges of the

Supreme Court. The Supreme Court of India has its own advisory and appellate

jurisdiction that extends to the enforcement of primary rights mentioned by the Indian

Constitution and to any argument in between the Government of India and all the

states of India.

While the Indian legal system is measured fair, a large backlog of different

types of cases can be found and regular dissolutions can effect in the delay before the

closing of a particular case. Though, matters of precedence and public interest are

dealt with efficiently. Besides these, interim relief is also allowed in other cases where

it is necessary.

Judicial System: Hierarchy of Courts

In India, the Supreme Court is at the apex of the judicial system and has a very

broad jurisdiction. It is also the general court of appeal from High Courts and also

enjoys an advisory jurisdiction. Its decisions are final and binding in all matters.

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Below the Supreme Court are the High courts, one in each State or one for two

or more States (a case in point being Chandigarh High court which functions as the

High Court for both Punjab and Haryana). They also have a wide jurisdiction and are

important instruments of justice. The most important aspect of their jurisdiction is

their power to issue writs for enforcing fundamental rights. Below the High Courts

lies a hierarchy of subordinate courts with separate civil and criminal jurisdiction.

This hierarchy varies slightly from State to State as each State can provide for its own

hierarchy. However most of them share the following common feature:

Each State is divided into Judicial districts presided over by the District and

Sessions Judge. The court of the District and Sessions Judge is the Principle Civil

Court of original jurisdiction. It also has the power to try all cases including those

punishable with death. Below this we have courts on civil side known in different

states as Munsifs, Sub-Judges, Civil Judges and the like and lower courts on criminal

side consists of courts of Chief Judicial Magistrate and Judicial Magistrates of First

and Second class. Apart from all these, villages in some parts of India have Panchayat

Courts under various names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri

etc. These courts deal with petty civil and criminal issues, which are local in scope.

One of the unique features of Indian Judicial System is that it consists of a

unified and integrated system of courts and not a dual system. This exists despite the

adoption of a federal system and existence of Central Acts and State Acts in their

respective spheres. This means that the Supreme Court, High Courts and the Lower

Courts constitute a single, unified judiciary having jurisdiction over all cases arising

under any law whether enacted by the Parliament or a State legislature. This is unlike

a federal country like USA where a dual system of courts exists with the Supreme

Court at the top along with a separate parallel judicial system in each State. 

Hierarchy of Courts:

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Supreme Court of India (Jurisdiction)

The Supreme Court has original, appellate and advisory jurisdiction. Its

exclusive original jurisdiction extends to any dispute between the Government of

India and one or more States or between the Government of India and any State or

States on one side and one or more States on the other or between two or more States,

if and insofar as the dispute involves any question (whether of law or of fact) on

which the existence or extent of a legal right depends. In addition, Article 32 of the

Constitution gives an extensive original jurisdiction to the Supreme Court in regard to

enforcement of Fundamental Rights. It is empowered to issue directions, orders or

writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo

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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.

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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).

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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).

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Quotable Quotes

1. “Law is merely the expression of the will of the strongest for the time

being, and therefore laws have no fixity, but shift from generation to

generation.”

      - Henry Brooks Adams

2. “Where there are laws, he who has not broken them need not tremble.”

        - Vittorio Alfieri, Virginia

3. “Law is king of all.”

- Henry Alford, School of the Hear

4. “We are under a Constitution, but the Constitution is what the judges say

it is, and the judiciary is the safeguard of our property and our liberty

under the Constitution”

-Charles Evans Hughes

5. “He that would make his own liberty secure must guard even his enemy

from oppression; for if he violates this duty he establishes a precedent

that will reach to himself.”

- Thomas Paine quotes

6. “Precedent keeps the law predictable and so more or less ascertainable.”

- Lord Devlin

7. “Statutes should be constructed not as theorems of Euclid but with some

imagination of the purposes which lie behind them and to be too literal in

the meaning of words is to see and miss the soul.”

-Doraiswamy Raju

8. “Legislation is that source of law which consists in the declaration of legal

rules by a competent authority. When judges by judicial decisions lay

down a new principle of general application of the nature specifically

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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.”

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