Legal methods class

16th August

Legal Positivism, (Austin, Hart, Joseph Rhaz)

Possibility Puzzle- Shapiro- Infinite Regression (

The PP is a classic chicken-egg problem, and it can be summarized as follows: (egg) somebody has power to create
legal norms only if an existing norm confers that power; (chicken) a norm conferring power to create legal norms exists
only if somebody with power to do so created it. Briefly, the problem is that in order to get legal power, one must already
have legal power.

Separation Thesis- separation of law and morality on what law is and what it ought to be

Law can exist without true justice, it only needs certain social conditions or facts

Natural Law Theory- Principles of Justice

Sources of Law- Immediate ones

What is law and legal system is a contextual question, focus on how it comes to be rather and the institution not on
philosophy( jurisprudence)

Reading:The Case of the Speluncean Explorers (googlegroups.com)

17th August

The case of the speluncean explorers (not coming in CA)

J. Foster Ruling Analysis

2 arguments

- In a very extreme situation, the law doesn’t apply at all

- Completely out of the bounds of civil society, not in terms of geography but in terms of how law can’t apply
- The purpose of the legal system doesn’t suit the situation, the entire legal system doesn’t apply
- We don’t apply our legal systems on every matter
- Is the situation egregious or their isolation itself

The legal rule is made with intent in mind, the object of criminal law is to have a deterrent effect
No other course of action, the law will cease to have any effect if applied (consequentialist argument)

Self-defence as an exception to murder is justified (made with deterrence in mind) and therefore this kind of desperate
necessity should too

Appreciate the exception bc its philosophy aligns with why the law was made at all

Tatting J analysis

The argument to foster: The court doesn’t even have the jurisdiction if civil law doesn’t apply

Positivist vs natural law view

Whetmore’s withdrawal was enough to break the agreement, what they did after that w violence is completely wrong
Reading the law with purpose in mind

Justice Keene

Judiciary’s role is already predetermined

Not re-interpret but focus on what is there inherently in the law

Judges can’t talk about the evasive concept of what is the purpose of the law
Speluncean case doesn’t have ambiguity

Why should a judge only follow the letter of the law

What about precedents, can they be ignored- are they part of the letter of law does the law change- how right is keene
in worrying about the cause of precedent

Handy

Laws can’t always account for all exceptions or circumstances in the future
Common sense needs to be used to some extent to account for circumstances
Involvement of human agency is required to govern the governed, its inevitable
You need to be sensitive to a situation- v pragmatic approach
Poll of public opinion
General rules cant be applied seedha to specific facts

Doubts-
How right is Keene in being concerned regarding the effect of setting a dangerous precedent? Can precedents or case
laws effectively change the letter of the law, how binding are these on courts? Do courts need to take into account their
own decisions or do only higher court judgements bind them, and that too, to what extent?

Is it true that the judiciary in its judgement isn’t allowed to commute a punishment in accordance with the facts of the
case?

Keene clearly suggests that fidelity to the law doesn’t come out of the legal system itself, it’s something that you appeal
to so as to make the law internally consistent. The very notion of fidelity to law is beyond the law just like natural
systems of morality. But isn’t the idea of maintaining internal consistency in judgements and the legal system actually in
itself a moral principle before it’s a legal rule.

Keene suggests that there needs to be a separation between law and morality but aren’t principles of natural justice that
the judiciary and judges like Keene conform to(for eg nemo judex sua causa), themselves actually arising out of
morality? These aren’t written down anywhere but judges continue to respect them and follow them despite not being
actual law.

Hereon, CA-1 syllabus begins

18th August

SOURCES OF LAW

Not all sources of law have an equal footing

The source of a law is either a legal one or historical one.

For eg- Precedents are a legal source of law while books written by an eminent jurist or philosopher could be a historical
source which is referred to in court.

Legal Sources: Historical Sources:

They are recognised by law itself and have a They influence the legal sources of law but do
formal backing (legal recognition: this not have any legal recognition on their own
authority is conferred upon these sources by a
legal rule as well)

They are authoritative in nature and can be These are unauthoritative in nature can’t be
claimed in court of law as a right claimed in court as a right
 They are the only way through which new They operate only indirectly and are not
principals and ideas can enter formal law directly recognised in any rule of law

Relation between legal rule and legal authority Almost all rules of law have historical sources
lies in interaction of a rule and an empowering since they are influenced by some original event
institution Eg- judiciary, parliament etc. or text

Ipso Jure- legal consequences arise by the Can only be applicable by the goodwill of the
mere operation of law, they have authoritative courts if required, they have a persuasive value
value

The line between legal sources and historical sources gets blurred as you go back. For eg the ability of the constitution
or the Parliament to authorise others to make law is self existent for lawyers however if you go back the source actually
is historical keeping in mind when it was first established. No statute can actually confer power on the Parliament as it is
the law authorising body itself. It’s self existent.

Customs can be a form of historical source or a legal source , for eg- international customary law is a case where
customary practice can be taken as a legal source itself but in India customs usually won’t have direct effect until given
authority via a statute.

Types of legal sources:

1. Written constitution
2. Legislation- enacted law
3. Judicial precedent- case law
4. Customs- customary law (intl.)
5. Convention Law- By agreement (intl.)
6. Principles of equity too
7. Writings of experts in law

Historical souce: philosophers (bentham), religious text

19th August

Legislation as the primary source of law

 - Legislation refers to formal and express declaration of new rules by some competent body which is authorised
to do so

- Even judiciary creates law sometimes, however when they so they do it by applying the rule of law itself to the
facts, they are simply applying the law not making it
( when courts declare judicial decisions they can be said to using executive power rather than judicial power)

Strict definition provides that legislation is performed by a sovereign or subordinate legislator

- The power to enact laws is a primary power of Parliament. Parliament, however, frequently enacts legislation
containing provisions which empower the executive government, or specified bodies or office-holders, or the
judiciary, to make regulations or other forms of instruments which, provided that they are properly made, have
the effect of law.

- This form of law is referred to as “delegated legislation”, “secondary legislation”, “subordinate legislation” or
“legislative instruments”. The last is the statutorily-established term.

- Refer to art 107-110 legislative procedure

- 113- state shall not make any law
- All of these articles pose a check or limitation on what the parliament can do
- Procedural and Substantive Check is possible by Parliament
Procedural check: doesn’t violate basic procedure, Substantive: doesn’t violate fundamental rights
- Not all actions of Parliament qualify as legislation. Legislation is what is enacted in entries I,II,III of 7th
Schedule read along w article 245 and 246 of const. ( 246- grants parliament exclusive powers to make
across territory of India on all lists except state, 245- Territorial limitation of powers of parliament)

Forms of general legislations: Act, Statute, Ordinance and Delegated Legislation

Ordinances- President (descends from the parliament itself so not a delegated legislation)

Primary Legislation- Acts and Laws passed by Parliament

Subordinate legislation- Acts might allow ministers of states to make their own Regulations, Orders to give effect to the
act itself.
There are five types of subordinate legislations: Colonial, Executive, Judicial, Autonomous and Municipal

General Clauses act, 1897 explains how the constitutional rules become law
(powering empowering rule)

The object of the Act is to provide uniformity of expression by giving definitions of a series of terms in common use. The
General Clauses Act functions as one of the statutory aids of interpretation. This Act indicates the meaning of an
expression in a generic and not in a rigid or exhaustive sense.

A statute is a formal act of the Legislature in written form

Executive’s delegated legislation will be under the check of the constitution and parliament act

The essential theory of delegated legislation is that while the Parliament deals directly with general principles, the
executive, or other body empowered to make subordinate legislation, attends to matters of administration and detail.

Other justifications for the use of delegated legislation include reducing pressure on parliamentary time, and allowing
legislation to be made so as to accommodate rapidly changing or uncertain situations, or cases of emergency.

Examples of Delegated Legislation:

Regulations and orders by ministers, state govts

Judiciary can formulate its own rules- procedural rules

Difference b/w act and statute:

Act and statute are often used interchangeably but they have significant differences:

Act Statute

Act means the formal document that is drafted A statute is the document that may be initially drafted in
incorporating or policy of the Government on any like manner as an Act, passed by the same legislative
particular issue and is moved and the passed by the body but incorporates the detailed statement of
legislative body in the manner and procedure as may principles as to how the policy contained in the Act
be prescribed and is assented to by the chief executive. is actually to be implemented.

An Act is subject only to the Constitution A statute is subject to the Act as well as the
Constitution. It may be ultra vires the Constitution or the
The scope of the Act must not go beyond the parent Act both or either if so, It would then be void.
Constitution or the legislative competence of the body
enacting it The scope of the statute must not go beyond the ambit
of the Act

An Act can be amended, or repealed only by the A statute may be amended even by some other body in
legislative body that enacted it or its successors. the way and in the manner as may have been mentioned
(eg- usually elected parliament) either in the Act or in the statute itself.

DIfference b/w rules and regulations:

Both are forms of subordinate legislation

 Rules Regulations

A rule is a statement of which can or must or what Regulation is a restriction of what is done or must be
should be done, in certain set of circumstances done or how should a thing be done

The word "rule" is always used to refer to the subordinate Regulation is the name that is given to the rules e by an
regulation made by virtue of powers conferred authorised body (bodies other than the state usually) to
regulate its own conduct or function

Eg- admission criteria by a university for itself

Regulations are usually a further clarification of rules. A rule in turn clarifies a section in an Act. (refer further for clear
example on future date)

By-laws are made mainly by local authorities or similar bodies or by statutory or other undertakings for regulating the
conduct of persons within their areas or resorting to their undertakings.

Regulations may determine the class of cases in which the exercise of the statutory power by any such authority
constitutes the making of statutory rule. The words "rules" and "regulations" are used in an Act to limit the power
of the statutory authority. The powers of statutory bodies are derived, controlled and restricted by the statutes which
create them and the rules and regulations framed thereunder. Any action of such bodies in excess of their power or in
violation of the restrictions placed on their powers is ultra vires. The reason is that it goes to the root of the power of
such corporations and the declaration of nullity is the only relief that is granted to the aggrieved party.

20th august

Legislation is that source of law that consists of the declaration of legal rules by a competent authority. It is such an
enunciation or promulgation of principles, as confers upon them the force of law.

When judges establish a new principle by means of a judicial decision, they may be said to exercise legislative, and not
merely judicial power. Yet this is clearly not legislation in the strict sense already defined. The law-creative efficacy of
precedent is to be found not in the mere declaration of new principles, but in the actual application of them.

Judges have in certain cases true legislative power—as where they issue rules of court—but in ordinary cases the
judicial declaration of the law, unaccompanied by the judicial application of it, has no legal authority
whatsoever.

Eg- So the act of the parties to a contract, in laying down rules of a special law for themselves to the exclusion of the
common law, may be regarded as an exercise of legislative power. But though they have made law, they have made it
by way of mutual agreement for themselves, not by way of authoritative declaration for other persons.

The writers who make use of the term in this wide sense divide legislation into two kinds, which they distinguish as
direct and indirect.

Law that has its source in legislation may be most accurately termed enacted law, all other forms being
distinguished as unenacted. The more familiar term, however, is statute-law as opposed to the common law;

but this, though sufficiently correct for most purposes, Is defective inasmuch as the word statute does not extend to all
modes of legislation, but is limited to acts of parliament.
Blackstone and other writers use the expressions written and unwritten law to indicate the distinction in question.

Supreme and Subordinate Legislation-

Legislation is either supreme or subordinate.

The Supreme legislation is that which proceeds from the supreme or sovereign power in the state, and which is
therefore incapable of being repealed, annulled, or controlled by any other legislative authority. ( paradox of doctrine of
parliamentary supremacy discussed- in salmond sources of law )

Subordinate legislation is 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. It can be easily
repealed or annulled to be replaced by supreme legislation. This type of legislation is derivative in nature- delegated
legislation

The chief forms of subordinate legislation are five in number.

Colonial, executive, judicial, municipal, autonomous

1. Colonial : powers entitled to colonies and other self governments, subject to the control of the imperial
government, parliament can repeal or alter any of these laws (no more applicable)

2. Executive: The essential function of the executive is to conduct the administrative departments of the state, but
it combines with this certain subordinate legislative powers which have been delegated to it by Parliament. A
statute, for example, occasionally entrusts to some department of the executive government the duty of
supplementing the statutory provisions by the issue of more detailed regulations bearing on the same
matter. This may be termed executive legislation. (eg- supplementary legislation authorised by statute)

3. Judicial: In the same way, certain delegated legislative powers are possessed by the judicature. The superior
courts have the power of making rules for the regulation of their own procedure. This is judicial legislation in the
true sense of the term, differing in this respect from the so-called legislative action of the courts in
creating new law by way of precedent.

(art145)- SC can make laws for regulating it’s own conduct with assent of president
This is not delegated tho, enacted

Not all subordinate legislation is delegated

Delegated legislation will always be subordinate

Delegated means their hierarchy of authority, subordinate sometimes get direct power to make law

- Judiciary making rules for itself

145. Rules of Court, etc.—(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from
time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the
Court
 - Direct authority from constitution
- Still subordinate not delegate tho (on SC)
- Not for state courts (this can be delegated)
- Merely procedural

- Judiciary making directions to govt.-

Eg- writ issued art 32 226 (judicial function)- not a source of law
Power from constitution, not a legislative action
It’s executive action
Not creating legislation

- Judiciary creating precedent

- Source of law
- Dif bw precedent and legislation
- precedent - rules made to apply law
- No law being made

4. Autonomic- Legislation is not a function that is essentially limited to the state. The declaration of new
principles amounts to legislation not because it is the voice of the state, but because it is accepted by the state
as a sufficient legal ground for giving effect to these new principles in its courts of justice.

The law gives to certain groups of private individuals limited legislative authority touching matters
which concern themselves.

Egs- A railway company, for example, is able to make by-laws for the regulation of its undertaking. A university
may make statutes binding upon its members, Board of Private registered company can alter Articles of
Association for it’s own working ( dif. From conventional law bc here majority of members can impose their will
on minority unlike conventional law which doesn’t apply on anyone except those who consented freely to it.

5. Municipal Authorities- (refer to salmond)

Classification of Administrative Rule-Making Power Or Delegated Legislation:

Administrative rule-making or delegated legislation in India is commonly expressed by the term “statutory rules and
orders”. However, this classification is not exhaustive as it appears in other forms also, i.e. regulation, notification,
bye-law, scheme and direction. These terminologies are confusing because different words are used for the same thing
and same words are used for different things.

Title- Based Classification:

i. Rule: The term “rule” is defined in the General Clauses Act, 1897 as a rule made in exercise of power conferred by
any enactment and shall include a regulation made as a “rule” under any enactment. These rules may be made
applicable to a particular individual or to a general public. It may include rules of procedures as under the Atomic Energy
Act, 1948, and also the rules of substantive law.

ii. Regulations: This term is not confined to delegated legislation. It means an instrument by which decisions, orders
and acts of the government are made known to public. But in the sphere of administrative rule making, the term relates
to a situation where power is given to fix the date for the enforcement of an Act, or to grant exemptions from the Act or
to fix prices, etc.

iii. Order: This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or
general. The former refers to administrative action while the latter refers to administrative rule-making.

iv. Bye-laws: The term has been confined to rules made by semi-governmental authorities established under the act of
legislatures. v. Directions: The term is used in two senses. The Constitution gives powers to Central Government to
issue directions to State Governments for the execution of its laws. In this sense it has no application to delegated
legislation. In the second sense, the term “direction” is an expression of administrative rule-making under the authority
of law or rules or orders made there under. These may be recommendatory or mandatory. If mandatory, these have the
force of law.

v. Scheme: The term refers to a situation where the law authorizes the administrative agency to lay down a framework
within which the detailed administrative action to proceed. The Committee on Ministers’ Powers5 has recommended for
simplification of the nomenclature, confining the term “rule” to the statutory instrument regulating procedure, the term
“regulation” to describe the substantive administrative rule-making, and the term “order” to instruments exercising
executive and quasi-judicial decisions.

Differences b/w Delegated and Conditional Legislation:

1. Delegated- When a legislature confers law-making power upon some other body, the legislative power is said to
be delegated.

2. Conditional: If the legislature itself enacts the law and gives to some other body only the power of determining
when, for instance, it should come into force or when it should be applied to a particular area of the State, there is
no delegation of legislative power. Such legislation is called conditional legislation.

3. Facilitative- A form of delegated legislation, for eg- autonomic legislation: iit allows individuals to make their own
law. companies can also make articles of association

A norm is valid only because it has been derived from or is ordained by another (superior) norm. This presupposes a
hierarchy of norms, each norm being valid on the presupposed validity of some other norm. Further, there are
dependent norms or facilitative norms which do not coerce people (e.g. right to make a will, powers of President,
judges, use of force in self-defence). The independent norms are coercive norms. The dependent norms are
dependent for their validity on the independent norms (viz. Section 299 of IPC Act 1860, derives its validity from Sec.
302). Thus law does not have exclusively a commanding or imperative character. (Facilitative and Framework
legislation (autonomous)- Salmond)
21st august

Statute (components of legislation)

Preamble- The purpose is stated as defining and amending, not a substantive part of the legislation

For eg- The Indian contract is not bringing in something new out of the blue, it’s simply adding and modifying

A statute’s preamble introduces the background and context but is not a substantive part of the statute and is
non-justiciable but the constitution is an exception wherein we find the preamble is justiciable because other
statutes because the preamble of the constitution is a part because they provide principles of the constitution
whereas preamble of statutes will only provide context.

The preamble of a statute is followed by its short title

- Kesavananda case made the difference b/w preamble of constitution and preamble of other acts
- Earlier, Berubari case had said that there is no difference and preamble have in general no substantive role in
interpretation of legislation

Rules (scope)

- Every rule the way it’s worded delineates for itself a set of facts on which it will apply and on which it will not
thus outlining its scope. And this distinction of outlining a scope is made by keeping in mind the purpose of the
law. so being over or under-exclusive is a danger to the purpose meaning that law is contingent on its purpose.

(Defines its own scope as a piece of legislation- delineate its scope- what is it applicable to and what it isn’t- every rules
creates distinctions of its own)

- Doesn’t imply that everything is found in it, doesn’t deem itself comprehensive legislation on all contracts,
recognizes some contracts might lie beyond it

every rule creates distinctions of its own and these have to be balanced using Art 14 (equality)

- Art 14 automatically applies to all articles of an act- it will be violated by discluding or including a certain set of
parties
- Every piece of legislation, therefore, has to be framed with this is mind
- Rules are contingent on the facts they are applied to (eg- when a rule is made of citizen, it automatically
discludes non-citizens)

How does a legislator decide what to include or not?

 - What to include or not include depends on it’s purpose and scope of a law
- If a legislator goes over or under the prescribed scope of legislation then they endanger art. 14
- Eg: a law made for upliftment of women, now if you leave out some women or include men then you violate the
purpose of the law and principle of equality

A statute has two clauses general clause and exception clause

Some sections also provide exceptions under the statute. It does not speak of some alternative set of fact, it only takes
out a specific set of facts from within the set of facts already under the general rule.

A general rule covers its own sets of facts and has it’s own scope; the exception flows from the general rule itself

General clause- general scope of the rule, lists certain facts and thus defines what facts it can be applied to

Exception clause- flows from the general rule’s scope itself, will talk about a specific factual situation/circumstance
under which the general rule won’t be applicable and thus carves out an exception

And/or and or/both difference

Conjuctor terms used

‘or’ - scope is bigger
‘And’- scope is narrow

Or, and, and/or, or/both

And- If a rule requires some set of facts for it to apply and has the term ‘and ‘ between both sets of facts then both
sets of facts will have to be present for a rule to be applied.

Or- If ‘or ‘ is present then you can either prove any one or you can prove even both because most of the time
they may not be mutually exclusive. So it can happen that certain facts may happen together but may not happen
exclusively in a case, therefore if ‘or ’ is used then the scope of the rule becomes broader. (eg- 2 facts, fact 1 and fact 2
are no mutually exclusive)

Fine or punishment or both

Or both- it’s the same thing as “or”, legislators are just expressly stating it down in law so there is no room for doubts
(eg- fine or jail or both stated so that a situation where both fine and jail are given is explicit)

Either is the word you would usually use if you would want one punishment or the other to apply and that too mutually
exclusive (smallest scope)

Fine or punishment
INTERPRETATION OF LEGISLATION (notes from salmond)

1. The meaning of enacted law is mentioned in the letter as well as in the spirit

2. However, no letter of law can stand between the spirit of law and it’s judicial application- which is the art
of judicial construction for interpretation of law is v imp.

3. Interpretation can be literal or functional

A) Literal interpretation focuses solely on the literal word of the law exclusively
B) Functional or free interpretation goes beyond the letter and tries to find out the intent of the legislation

4. According to the English law, the essence of law lies in its spirit, the letter of law only serves as the external
manifestation of the intent of lawmakers.

5. Courts make rules to help with interpretation of the law, however they are more general principles rather than
strict rules

6. Common Rules of Interpretation in use:

- Ordinary common sense rules of language ( eg- dictionaries, technical use, practical use, scientific meaning
etc.)
- General Historical context in which the legislation was framed
- Retaining the original meaning as it was intended by the Parliament when the statute was enacted
- New Inventions or Interpretations (albeit not ultra vires and under general conception of the rule)
- Lack of express use of words- expanding the scope by heavy implication
- Ejusdem Generis: Restricting meaning of common use of words as meant if express words are used to limit the
scope as such- exception to common sense rule of language

7. Exceptions to the letter of law

A) Semantic ambiguity (and/ or scenario could be an example)

B) Conceptual ambiguity- in this case the letter of the statute provides no solution and it becomes the right and
duty of the court ro go behind the letter of law to ascertain from other sources the principal intention which has
failed to take external manifestation in the letter itself.

Ambiguities in letter of law are not always however, a case of failure on part of lawmakers:

- it could be the case that no single definition of a word exists and therefore is left up to interpretation
- if the words are self contradictory, that often expresses a sense of confusion in the intention of law itself
 - if the text is logically defective- it’s more often the case that the particular fact situation hasn’t come to the mind of
the lawmakers rather than a case where the real intention was overlooked and not expressed

In such cases where there is genuine and perfect intention lying behind a “defective” text, it’s the right and the duty
of the courts to give effect to it. This will be a case of dormant or latent legislation, where the real intention if not
obvious needs to be sought for.

8. GOLDEN RULE OF INTERPRETATION-

- Saving clauses are usually used for this purpose- so as to preserve the previous principles of common law
- A statute according to this rule, must be read in the light of general legal principles
- This helps avoid unjust, immoral and absurd results of application of law (the rule is abusable tho)

9. Mischief Rule- If a certain statute has been framed to remedy a mischief, then the focus while interpreting it should
be on suppressing the mischief and advancing a remedy as intended via law application. The law should only be used
to remedy that particular mischief and not any other.

10. The functional approach to law combines all these rules of interpretation as required by the judges in
accordance with facts and circumstances

- English courts in accordance with this approach don’t allow themself to consider preliminary discussions on a
piece of legislation (travaux preparatoires)
- They refuse to look at parliamentary debates, or general reports of commissions while framing
- The reason for the same is that most of these documents usually only reflect the will of the few who represent
the ideas of the majority, the motives of many across these members can very well be different but not visible
via these documents
- Report of a commission doesn’t necessarily reflect the will of the parliament
- It also saves a lot of time and effort for the judiciary to avoid the interpretation of these

25th August

1. Commencement date: The act doesn’t always mention at what date it will be effective, there could be
instances where the act comes into effect days after it has been formulated and passed. It could also be the
case that it comes into force only after a notification from the central government.

2. Saving clause- A savings clause, sometimes referred to as a severability clause, is part of a statute or contract
that exempts a specific item or ensures that the rest of the statute will stand if one part is found invalid. This, in
essence, divides the contract into many separate parts; if one is breached, the others must still be fulfilled. The
invalid portion will sometimes be written to meet legal requirements and the intent of both parties.
It’s called saving clause bc it saves those provisions which are not expressly prohibited under an act, they will continue
to exist as they were

You should see savings clause as a proviso

= therefore explains the relation the act is going to have with other legislations

eg of the Indian contract clause: (insurance act, contract act?)

Two separate pieces of legislation applicable on same set of facts, read together might work w harmony or have a
conflict- will have a cumulative effect

In case of inconsistency: (generally)

1. Specific prevails over general but courts usually go for a harmonious construction
2. When it’s impossible to do the above the court will try to solve via the specific over general rule

3. Interpretation Clause-

It defines certain words used elsewhere in the body of statute with the purpose to avoid the necessity of frequent
repetitions in describing the subject matter and extend the natural meaning of some words as per the statute.

Exceptions can also be provided in the form of a general clause followed by the term ‘provided that’. Technically not an
exception, it is just giving you another circumstance where the general rule won’t apply

Dif. between proviso and exception

Proviso: Condition (special case) required to be fulfilled in order for the provision to be or not be applicable or not
applicable

Exception: Situation/Condition where the provision shall not apply.

A proviso is a clause which is added to the statute to exempt something from enacting clause or to limit its
applicability. As such, the function of a proviso is to qualify something or to exclude something from what is provided in
the enactment which, but for proviso, would be within the purview of enactment.

Proviso is always added apart from the general clause while exception always descends from the general rule itself

Positive or negative effect on the application of general clause itself

If the condition of proviso is fulfilled (the condition itself could be to do or not to do something), it’s fulfillment will always
have a positive effect in the sense that it will lead to the application of the general clause on a fact situation
In the case of an exception the effect is always negative- leading to non application or limitation of the applicability of
general clause itself

In modern legislations, proviso and exceptions are used interchangeably despite their technical difference

Dif. between legislation and precedent

Why are legislations usually prospective-

When policy is being framed, new rights and legislation are given effect to, whenever a process of legislation has an
effect of clarifying and not creating something new then it can be implemented retrospectively

Ex post facto- You can’t punish under a law that didn’t exist at the commission of a crime- goes against basic idea of
justice

Eg- Retrospective Tax Legislation- here the law for taxation always existed and the amendments were made for the
purpose of clarifying something that was always attended within the original legislation

Situation: There could also be a case where the lawmakers fail to take into account a certain fact situation and make the
law even overinclusive, including a set of people they shouldn’t have- violation of art 14- can have a chance to clarify
and fix it as it was never their intention

(transgender)

26th August

Statute- Prospective effect of a particular statute.

Grounds for justification of Retrospective legislation:

1. The first is clarification as we discussed yesterday

2. For good of community- but only to reduce punishment itself

Article 20-

1) Convicted of an offence under a law that must be enforced at the time of committing the crime. If the law comes into
force later on, the law cannot retrospectively convict someone.
Ex post facto- after it comes into force.
2) the punishment- penalty is given, later on it cannot be increased further retrospectively.

Article 20 says a person shall not be convicted under a law which was not in force at the time of commission of an
offence and he cannot be retrospectively convicted nor shall he be given a penalty higher than the law in place during
the time of commission .
Criminal matter- covered under article 20
Civil matter- not particularly included under article 20 ( article 20 does not specifically talks about civil matters therefore
there is a presumption that runs around these matters that they have prospective effect)

Exception: the court can do away with this. If the legislation is for the benefit of the whole community (equity, good
conscience), the court can give a retrospective effect to the legislation if the legislation does not explicitly provide it.
In case of amendment, if it is to clarify something of the legislation it has retrospective effect,otherwise it is presumed
that it has retrospective effect unless decided or mentioned otherwise.

These are both for civil and criminal matters. Eg: if there is a benefit like the term of punishment is reduced. Then it will
be retrospective depending on the court and legislation ( no prohibition).
No increase in punishment allowed or new punishment is allowed even if legislation or court allowed.

Section, rule, regulation

Section- Main provision of an enacted legislation

If an authority is given a power to clarify the sections they come in the form of rules.
Certain legislations have further explanations of the rules called regulations.

Eg: section - teaching has to be done in NLUJ

X authority will clarify the rules.
Rules- must be on time
Y clarify the regulation- the time of every class is 9 A.M.

They are both forms of delegated legislation

Difference between Article and Sections

Art- cons sections- act

Articles- fundamental principles on the basis of which sections can be formed.
Therefore articles mentioned in the Constitution or treaties of international law have articles.
The constitutional articles form the basis of all laws in india. The treaties of international law form the basis of laws to be
framed in the domestic territory.

Sub section and clause dif:

Sub sections are there for sections. Clause is there for articles.

Difference between Act and Code.

Contract act- the provisions coming under the contract act. Does not mean everything and anything will come under
contract act. They are usually substantive. This is more specific

Criminal code or civil code- All civil or criminal matters will be done within the code. Thus code is more comprehensive.
Procedure of Contract act comes within the Civil Code. This is a general comprehensive which covers various sub
fields.
Generally they are procedural, some parts are substantive.

difference of scope. Scope of code- larger.

Scope of act- smaller.

27th August

Judicial decisions are dif. From legislation made by parliament (yesterday we discussed retrospective and prospective)

- Judicial decisions have retrospective effect and Legislation have prospective effect
- Law making bodies like the parliament make general rules with general scope while judicial decisions are
limited to certain parties and certain facts, dependent on a dispute
- Value of judicial decisions- binding value but only for parties, application of law on a specific dispute, but even it
has a judicial effect

In common law system even in India, precedent system is followed: a decision should hold value for future as
well, if facts are similar (meaning of stare decisis)

Doctrine of Stare Decisis= Doctrine of Precedent:

Under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction
acts as binding authority on a lower court within that same jurisdiction.
The principle of stare decisis can be divided into two components.

1. The first is the rule that a decision made by a superior court is binding precedent (also known as
mandatory authority) which an inferior court cannot change.
2. The second is the principle that a court should not overturn its own precedents unless there is a
strong reason to do so and should be guided by principles from lateral and inferior courts.
The second principle, regarding persuasive precedent, is an advisory one which courts can and do ignore occasionally.
In order for the doctrine of stare decisis to be applicable, there are two basic prerequisites, first that there must
be authentic reporting of decisions of courts. The second requirement is an established hierarchy of courts

Only a larger bench’s decision will be binding on a smaller bench’s decision

Precedent:

Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. The
doctrine of precedent, which is also known as the doctrine of stare decisis> ie, stand by the decision, is based on the
principle that like cases should be decided alike. Once a case is decided by a judge by applying a principle, a case
on similar facts which may arise in future must also be decided by applying the same principle. This not only saves the
time and labour of judges, but also secures certainty, predictability, and uniformity in the application of law.

- A precedent covers everything said or done, which furnishes a rule for subsequent practice.
 - A judicial precedent is judicial bc authority has in some measure been attached to it In general
use, the term precedent means some set pattern guiding the future conduct. In the judicial field, it means
guidance or authority of the past decisions for future cases. Only such decisions as lay down some new rule or
principle are called precedents. It is the attribution of authority that makes a judicial decision a judicial precedent

Judicial Precedents: The judgements passed by some of the learned jurists became another significant source of law.
When there is no legislature on a particular point which arises in changing conditions, the judges depend on their own
sense of right and wrong and decide the disputes. Such decisions become authority or guide for subsequent cases of a
similar nature and they are called precedents. These are retrospective in nature. There are three kinds of Precedents:
1. Authoritative Precedent
2. Persuasive Precedent- a) Foreign Judgment b) Judicial Dicta/ OBITER DICTA
Conditional Precedent- (type of persuasive): courts of similar standing can choose to adopt or ignore
judgement of a similar standing court

Merits of Judicial Precedents:

● Consistency and predictability:

Due to the presence of judicial precedents, the lawyers become capable to aid their clients regarding specific
subject matter after observing the precedents prevalent in such field. It provides assurance that every case will
be treated and decided in a manner that is similar to pass decisions. There is building a consistency and
predictability that everyone can rely upon it.

● Flexibility:
Precedents carry the flexibility in judicial system, The Supreme Court is not bound by its own decisions. The
rules established by the Supreme Court in a particular subject matter remain in force except they have not been
overruled by the Supreme Court. They form the law according to the changed conditions and thus carry
flexibility to the law.

● Save time of the courts:

The judicial precedents give great feasibility to decrease the effort of judges and lawyers. Formerly the difficulty
concerning a few specific matters is resolved then it is not required to re-argue the same question in the future
similar cases also so It will help to save the time of courts

Demerits of precedents

● Complexity:
There are so many case laws as a result it creates complexity. The judge issues his own point of view on matter
to create more precedents. Decisions are very wide, and it becomes burden for the lawyers and judges working
on the similar matter to decide that what is applicable or not. It is tedious task to find out relevant case law on
particular matter.

● Possibility of overlooking of authorities:

The immensely increasing number of cases has an irresistible result on the judges and the lawyers, thus there
 is prospect of overlooking of authorities. It becomes not easy to trace out the wide variety of authorities on the
very point. occasionally, the conflicting decisions of higher courts put the judges of lower courts into a dilemma.

● Rigid:
The practice of judicial precedents brings inflexibility in the system for the reason that the lower courts are
bound by decisions of higher courts. The society is not fixed and there is change in social, economic, and other
situation with time. Changed status may require a different interpretation of law. In fact binding precedents can
hold back the advance of law.

Art. 141

. Law declared by the Supreme Court to be binding on all courts.

- Says Sc decisions are binding on future decisions as well
- Basic rule of judicial precedent provided by art. 141
- Only the part of the judgement regarding declaration of law is binding (ratio)
- Not all parts of the judgement are equally valid

Art. 141 cannot in the very context of the doctrine of judicial precedent preclude the freedom open to the future
courts of ascertaining the ratio of a case as it sees it, after the event and in the light of the litigational
exigencies now before it which might on the level of forensic perception of the ratio suggest dimensions which
might not have been present in the mind of the earlier court, but which necessarily must be taken into account for
arriving at a view of the ratio decidendi.

The Supreme Court is not bound by its own decision. The expression all courts in Article 141 refers only to the
courts other than the Supreme Court. If an earlier decision is found to be erroneous and is thus detrimental to the
general welfare of the public, the Supreme Court will not hesitate in departing from it. (per incuriam)

Union of India V Dhanvati Devi

-distinction b/w binding and non-binding part of a decision
-ratio decidendi and obiter dicta

Every decision contains three basic postulates.

A) Firstly, finding of material facts, direct and inferential. An inferential finding of fact is the inference which the
judge draws from the direct or perceptible facts.
B) Secondly, statements of the principles of law applicable to the legal problems disclosed by the facts
C) Thirdly, judgment based on the combined effect of the above. A decision is an authority for what it actually
decides. What is of essence in a decision is its ratio and not every observation made in the judgment.

Ratio Decidendi: The authority of a decision as a precedent lies in its ratio decidendi. It is, therefore, necessary
to know what this ratio decidendi is and how it is determined. The ratio decidendi of a case is the principle of
law on which a decision is based. When a judge delivers judgement in a case he outlines the facts which he
finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for
which he gives the reason (ratio decidendi).
 It is the ratio decidendi or the general principle that has a binding effect as a precedent. But the determination of
ratio decidendi is not so easy as it appears to be in theory. Many eminent jurists have laid down principles and
methods to determine the ratio decidendi of a decision

The ratio decidendi can be defined as the material fact of the case and the decision thereon. The
ascertainment of the ratio decidendi of a case depends upon a process of abstraction from the totality
of facts that occurred in it. The reason for the decision ratio decidendi forms the groundwork of an
authoritative precedent.

Basic processes in finding relevant portions of a judgement

- By distinguishing material facts from unimportant facts.
- By discovering the precedents applied to identify the court’s approach.
- By restricting the analysis to the majority opinions.
- By reading out subsequent decisions and considering it at several levels

Essence of the decision is the ratio. Every observation found in a judgement is not the ratio. Ratio decidendi is
based upon the facts actually decided. It is an authority for those facts

When the ratio of an earlier decision is interpreted in a later decision, it is proper only to look into the policy interest
which the ratio seeks to guard and the consequences which it seeks to avoid. It is beyond doubt that the binding
element in Supreme Court judgement is ratio decidendi of the decision and not any finding on fact. It is the principle
found upon reading of a judgement as a whole, in the light of the question before the court that forms ratio and
not any particular word or sentence.

Goodhart’s test: (Material Facts theory)

In 1929, Goodhart had argued that there is a single ratio which can be located throughout a particular case. That
there is no necessary connection between the ratio and the reasons of a case.

He laid down the following guidelines for discovering the ratio decidendi of the case:

1. Ratio decidendi must not be sought in the reasons of why the judge has passed the decision.

2. The reasons given by the judge are of particular importance, for they may furnish us with a guide for determining
which facts he considered material and which immaterial.

3. A decision for which no reasons are given does not necessarily lack ratio, furthermore, the reasons offered by
the court in reading a decision might be considered inadequate or incorrect, yet the court's ruling might be endorsed in
later cases- a bad reason may often make good law. It is by his choice

Soundness of a reason-logic doesn’t matter

4. Thus ratio decidendi is whatever facts the judge has determined to be the material facts of the case, plus the judge’s
decision based on those facts of the material facts that the judge creates law.

Goodhart test of ratio is: ratio decidendi = material facts + decision.

Goodhart states that "It is by his choice of material facts that the judge creates law." The Goodhart test involves taking
into account facts treated as material by the judge who decided the case cited as precedent.

The Goodhart’s theory is also known as Material fact theory. The ratio is to be determined be ascertaining the facts
treated as material by the judges together with the decision on those facts.

Advantages of the test are as follows;

a. It is only way of finding out the ratio when no judgement is given

b. It stresses the point that a proposition of law is authoritative only to the extent it is relevant to the facts in issue in the
case.
c. It is valuable in pointing out that we can not always rely on the judge’s reasoning in a case since this may be patently
faulty. This is likely to happen where the judge supports his decision with arguments of policy and justice.

The only drawback of the test is that the test is not in actual use by the judges. In practice, the courts seem to be
paying more attention to the judges own formulation of law than that permitted under the test. Difficulty arises when the
court deals with the law without first finding the facts. They depart from normal situation where rule of law is
enunciated and applied to the facts as found. In these cases facts are assumed and in some the actual facts do not
fit into the law as enunciated.
(Read ginger beer case)

30th August

PRECEDENT

Doctrine of Precedent- Cases must be decided in a similar manner if the material facts are the same. Not all facts are
required to be same but here the reference is to legally material facts of a case.
Ratio- Ratio is that part of the judgement which is the essence of the judgement, basic principle of the judgement on the
basis of which the case is decided

The search for the ratio of a case is a process of elucidation; one searches the judgment for the abstract principles of
law which have led to the decision and which have been applied to the facts before the court.

As an example, the ratio in Donoghue v. Stevenson would be that a person owes a duty of care to those who he can
reasonably foresee will be affected by his actions

Material facts of a case: in a case like the above ‘reasonable duty of care’ becomes a material fact but the def of
reasonable can still vary from time to time and case to case. The definition of reasonable speed itself isn’t binding
later on but the abstract principle is

Eg- reasonable in a certain time period or location might be 80 km/h while somewhere it is 60km/hr

Futuristic aspect of a judgement: decision can be used again if material facts are similar,

When a judgement is pronounced it’s usually very general in nature to accommodate and be flexible of future cases- so
when a court propounds the idea of ‘reasonable care’ in a judgement the def of reasonable itself won’t be crystal clear
to avoid rigidness

For the new case w similar facts the material facts become- stuff like speed
freedom open to the future courts of ascertaining the ratio of a case as it sees it, after the event and in
the light of the litigational exigencies now before it which might on the level of forensic perception of
the ratio suggest dimensions which might not have been present in the mind of the earlier court,

Difference b/w an Obiter Dictum and an Observation of court

Can we say everything that doesn’t fall within the ambit of ratio, automatically is a part of obiter dictum?

NO, Technically there is a difference b/w obiter dictum and a mere observation:

Analogy

Case: whether X has committed a certain crime or not

A summon is issued to X by the court to appear before it. He however doesn’t get the summon bc he isn’t present to
receive the post. So he is sent the same by WhatsApp.

For the purposes of determining all the issues, the court looks into the sub-issue whether the whatsapp evidence is
an admission or not. Now, here even though this sub-issue is looked into by the court it isn’t necessary to the
substantive decision of the case essentially.

Court gives two points for point of law

Important for coming to final decision- these are ratio
Not so important for coming to final decision but are on a legal point brought before the court but not necessary for the
decision arrived by the court.- these are obiter Dictum
Ratio:The ratio decidendi of case refers to material facts of the case plus the decision of the case. It is the rule of law
the decision is founded on. It is the part of the case that possesses authority.

Obiter Dictum: clarification of some legal point which is not necessary for the final outcome of the judgement.

Observation : slight opinion mentioned in the court. Mere observations made by court not necessarily on legal point per
se.

ENGLAND LAW - pure common law

Common law principle- That it is only the ratio of the court which is binding. The Obiter Dictum and the observation can
have observational importance and hold persuasive value but they are not binding

INDIA
Privy council of India (before SC came or independence) - Ratio is binding. Obiter Dictum is binding

Supreme court- Obiter Dictum coming from the supreme court the high court should pay heed to it unless there
is a contradictory reasoning behind it. High courts cannot ignore it. Ratio has to be followed( a must). Observation
can be ignored

Mohandas Issardas And Ors. vs A.N. Sattanathan And Ors. on 9 August, 1954
Difference between obiter Dictum and mere observation. (SC obiter dicta is v imp, more than mere op) This is
an old judgement but the opinion has not been overruled yet.
(read w art 141)

- Therefore, here also emphasis is put upon the fact that 'Obiter dicta' must lay down a rule. It is not sufficient
that they should be merely 'dicta' Of a superior Court, but from the 'dicta' one must be in a position to deduce a
rule laid down by the higher authority. Our High Court has also consistently taken the same view of the 'obiter
dicta' of the Privy Council.

SC obiter therefore in practicality is binding on HC.

A Precedent can be classified into different types. It will have two values or two reasons as to why another court is
referring to an old judgement:

A) Authoritative- Irrespective of whether you agree to the logic or not, you will follow it. Binding in a true sense.
High court will have to follow even if it doesn't agree with it.

B) Persuasive- Obiter dictums can also have value and impact on development of law. Some cases are referred
to by the court agrees w reasoning of the court . Obiter Dictums have a persuasive value, minority opinions
have a persuasive value eg: ADM Jabalpur) :-
A court refers to past decisions not because they are authoritative but because they agree with it. Their force of law
comes from their persuasive nature. It does not have authority or binding because if the court did not think it applied
they might not apply it. If they have a persuasive value, they can be applied

Examples:

1. Foreign Judgement- Marbury V/S Madison (quoted in several Indian judgements, has persuasive value)

2. Judicial Dicta- that which is said in passing,” an incidental statement. (opinion of the court)

Specifically, in law, it refers to a passage in a judicial opinion which is not necessary for the decision of the case
before the court

Wilkinson V/S Downton

Downton (D) made a joke to Mrs Wilkinson (W) that her husband, Thomas Wilkinson (T) had had an accident in which
both his legs were broken and that W should go to The Elms pub where T was lying to bring him home. These
statements were false but D intended them to be believed as true by W, who suffered a shock to her nervous system as
a result. W had no predisposition to nervous shock and the shock which caused her weeks of suffering and incapacity
was not a result of previous ill-health. W raised an action against D for compensation for her illness and suffering due to
the false representation made by D.

Issue

The issue in question was whether compensation could be made for a person’s illness and suffering following the false
representation made by the defendant, D.

Held

D had wilfully made a false representation to W intending to cause some physical harm to W, by infringing her right to
personal safety, with no justification for doing so. Although D did not intend the harm which was caused, this ‘wilful
injuria’ is malicious in law. The injury caused to W was not too remote and could have been foreseen, and therefore
taken to have been intended, by D. As Wright J., stated at paragraph 59:

“It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce
grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to
produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was
anticipated, for that is commonly the case with all wrongs.”

Pasley V Freeman

Facts- Plaintiff asked Defendant for a credit reference. Defendant lied to Plaintiff. Plaintiff sued Defendant for fraud.
Case on rule of deceit, If deceit or fraud causes damage to the plaintiff, then it is maintainable in an action against the
defendant. (cited in Downtown case as precedent)
The court differentiated facts from Pasley in Downtown and said that in the Pasley case the defendant intended to
cause that particular damage that the plaintiff suffered, while in Downtown the damage suffered was never the exact
damage that the defendant wished to cause. This is a fundamental difference.

Therefore, the rule of deceit wasn’t applied in this case. However, propounded it’s own rule- whenever a defendant
causes harm willfully (intention to cause damage isn’t required) must be held liable. (not a case of deceit).

Ratio and Material Facts of Case (WILKINSON V DOWNTON)

We look at the text of the judgement to exact out ratio and abstract it to form a general principle.
The text of the judgement refers to ‘physical harm” and “willful injuria”.

Telling a lie- generalised as a form of willful conduct in downtown case. Willful injuria is malicious in law even if it
isn’t malicious in purpose

Eg- If a person poisons someone but didn’t lie, this can also be equated to a lie bc it’s part of willful conduct

Her losing hearing, shock suffered - generalised as physical harm (mode and kind of harm isn’t the focus, the effect is )

- Such injury caused out of wilful conduct needs to be compensated.

While interpreting the courts can choose to narrow or widen the ratio of a case.

Obiter of the case: ( something important to the case but not considered when the final ruling was made)

1. The part where the court further modified the rule of deceit by further narrowing it down by rejecting its
application in the Pasley V Freeman case is an example of an obiter

While distinguishing the two cases, it explains how the fact of Wilkinson should not fall under deceit. It is delineating and
modifying the rule of deceit. This clarification of the rule of deceit is an expression of rule - This can be taken as an
obiter of the Wilkinson case.

2. Whether mental harm is considered in future cases as part of physical harm will determine whether mental
harm constitutes ratio in future case, as of now it isn’t an obiter

3. The fact that the judge didn’t rely on Mrs. Wilkinson getting ill as a base for tortious compensation. While the
news was intentional, her becoming ill as a response to it wasn’t, therefore not a case for damages. The only
damages the court asked for was the amount she spent travelling and recovering.

(read glanville)

Narrowing or widening scope of ratio inevitably changes what the obiter dictum looks like as well.

Modification in ratio which stays true to the rule or root of a principle ( idea of stare decisis)
Some forms of judicial authorities don’t have a system of binding judicial precedents, for eg- foreign courts like the ICJ:
the cases hold a persuasive value not a binding value.

The ways in which the concept of judicial precedent has developed in common law as compared to the civil law system
is also something to be looked at. (might be covered in other class)

1st September-

Exceptions to Precedent:: When can the HC choose not to be bound by SC decision:

1. (Ignorance of Rule of Law) Concept of per incuriam-

Per incuriam, literally translated as "through lack of care"

- If a decision is given by court in such a manner that it failed to provide for rule of law and set aside the
rule of law in such a situation the judgment in itself can be set aside. There is no wrongful interpretation
of the law but an ignorance of the rule of law, the judgement will not become a precedent and will not
be binding.
- If the sc wrongfully interpreted the law and it also ignored a principle of law- the judgement is per
incuriam.

ARTICLE 141- Binding value of sc decisions, its interpretations provides this concept.

Eg: Gerard V Worth of Paris.

Three people. B owed money to A, the court arrived at a decision that there is debt, whether B had to pay or not, Court
said he should. C owed certain money to B , the court said C can give money to A.

Garnishee order- deals with such a situation, but the court ignored this procedure and did not talk about its merit and
application. This is per incuriam.

● A complete ignorance of legal authority leads to judgement being per incuriam. Legal authority is not just legal
provision, but failure to recognise a previous precedent ( if a five judge bench ignored a precedent of the past,
lower courts don't have to adhere to it since it is per incuriam) also leads to judgement being per incuriam.

- Sub- Silentio- If court is silent about certain issues in the case which are of importance but should have been
addressed, this ignorance also leads to judgements turning per incuriam.

When high court says a decision is per incuriam, that decision of the high court is appealed to SC and SC sets it aside
and says that the proper reading of the judgement shows no ignorance of law and high court is incorrect- the precedent
status is restored.
Therefore, A judgement which is claimed to be given in ignorance of a point of law is rendered per incuriam, however it
can be further looked into and this decision of rendering judgment per incuriam can be overturned by an appellate
authority.

2. No settled Interpretation: Two different interpretations given by the supreme court in different cases (but of similar
nature) , the high court has a choice to make its own interpretation and consider either judgement. Generally, this matter
is suggested to a larger bench of SC.

Case law where the principle of per incuriam was established:

In case of, Buta Singh v. Union of India, it was held that, when a two-judges bench without noticing or ignoring the
binding decision of a three-judges bench renders a decision, then such a decision is per incuriam.

(2nd September)

Application of Judicial Decisions

Blackstonian interpretation of law

Against prospective application of law

There are two doctrines familiar to American Jurisprudence, one is described as Blackstonian theory and the other as
“prospective overruling” which may have some relevance to the present enquiry.

Blackstone stated the common law rule that the duty of the Court was “not to pronounce a new rule but to
maintain and expound the old one”. It means the Judge does not make law but only discovers or finds the true law.
The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does not make
law but only discovers the correct principle of law.

The result of this view is that it is necessarily retrospective in operation.

Declaratory nature
Prospective overruling

Court should recognise a duty to announce a new and better rule for future transactions whenever the court has
reached the conviction that on old rule (as established by the precedents) is unsound even though feeling compelled by
stare decisis to apply the old and condemned rule to the instance case and to transactions which had already taken
place

Golak nath vs state of punjab- borrowed

In India Prospective Overruling- Golaknath V state of Punjab and Sajjan Kumar Singh Case (refer to PPt) - State
was given the right to make laws to take over lands of people. The question was considered- does the state have the
authority to make constitutional amendments to take over the rights of the people. According to the Sajjan Singh Case
the court had the power to amend any law even if it violated fundamental rights.

DECISION- The power under article 368 does not give the power to violate the fundamental right. Overrules the
decision of sajjan singh, prospectively(for future reference), it says that from now on any law and any constitutional
amendment has to be in line with the fundamental right →Prospective ruling.

Prospective ruling does not negate the essential function of declaring a law. It is just changing the application and
refusing retrospectivity of the same.

Salmond:
The theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous
decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the
strength of the supposed rule are governed by the law established in the overruling decision. The overruling is
retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime.

It is no doubt true that after a historic decision in Golak Nath v. State of Punjab this Court has accepted the doctrine of
“prospective overruling”. It is based on the philosophy:
“The past cannot always be erased by a new judicial declaration.”
It may, however, be stated that this is an exception to the general rule of the doctrine of precedent.”

prospective

Sajjan kumar case

By “prospective overruling” the law declared by the Court applies to the cases in future. The application to cases which
have attained finality is saved because the repeal would otherwise work hardship on those who had trusted its
existence. Invocation of the doctrine of “prospective overruling” is now left to the discretion of the Court but it is the
exception.
Courts have taken a view to follow the principles of prospective overruling, however, it is only applied in cases where the
need is so felt, as in cases for example where revenue is involved due to the State or Government and in other
emergent situations.

Kesavnanda prospectively overruled golak nath

Articles 141 and 142-The difference.-

In Indian Bane Mariner Products Ltd., (2006) the question was clarified as the Supreme Court, on special facts of the
case, after decision, issued certain directions to the Government by moulding the relief sought. direction of power under
Article 142.

But, the High Courts reading this direction started issuing similar directions and it so repeated and as such becomes
law.

Therefore, it is the duty of the Supreme Court, while issuing directions, to make it clear, that the same is being done
under authority of Article 142 and does not form part of the ratio decidendi of the case., therefore not precedent.

These directions may even be contrary to the law declared, it is in variance with it. This power is only with the SC, HC
can’t use this power under the pretext of Art 141. It is not precedent but instead an exemption or relaxation of law.

Sc binding plus idea of complete justice

142- equity for idea of complete justice- grave injustice - can be flexible

3rd September- notes added to 30th aug due to continuation of wilkinson discussion

6th september

JUDICIAL HIERARCHY

• We have a unitary system of the Judiciary. In both State and Union level, the hierarchy is the same.
 • There is a predetermined hierarchy for both Centre and the States. Each state has a high court of its own, and the
Supreme Court acts as an Apex Court. The powers might differ in both civil and criminal matters for different
courts. The SC and HCs have the power to try both civil and criminal matters.

CRIMINAL JURISDICTION: Criminal jurisdiction of sc comes from 134 which was brought in through the 44th
amendment

SC jurisdiction

-writ- we can directly go to sc

- appellate

Text of Art 134 (appeal in criminal matters before SC)

Appellate jurisdiction of Supreme Court in regard to criminal matters.—

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a
High Court in the territory of India if the High Court—

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; 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 person and sentenced him to death; or
(c) 1 [certifies under article 134A] that the case is a fit one for appeal to the Supreme Court

C- you can file for a certificate under 134A and if that certificate is passed then you can appeal the sc, , if you are not
satisfied with the decision of the hc then you can also file for a certificate.- if there is some controversy, then the hc will
determine if the case is fit or not, only then will it provide the certificate.

( Certification is required because the intention was not to clog SC and it should be reversed only for important matters.)

According to art. 133, certification granted if:

1. Matter deals w/ a substantial questions of law

2. Matter is fit enough to be dealt by SC.

A) Grounds for issuing a certificate for appeal by the hc-134c - For a matter to be appealed before sc there has to
be a question of law and not a question of fact.- Kushal Rao vs state of Bombay

B) Grounds under 134a and 134b- matter of fact or matter of law, both are grounds because here appeal is a
matter of right.

Now, there are 3 conditions which use the term OR. They can be fulfilled in isolation. So, in criminal matters, grounds for
appeal is more expansive than civil matters and this is because in criminal matters, punishment can be as severe as
death penalty. So, in that case, no certification is required from tfC to appeal in SC and is in that sense expansive.

Differences:
 - 134c, it is not a matter of right but upto the discretion of the hc and sc exercises extraordinary
jurisdiction.
- Under article 134a and 134b it is a matter of right if the grounds are justified for appeal, the sc acts as a
ordinary court of appeal
- Hc has to grant a certificate in all the three 134abc, but in A and B it it has to compulsorily grant it but in
c it is upto the discretion of hc

According to article 136 the supreme court according to its discretion may grant special leave to an appeal without any
certificate from the high court. This appeal may be about sentence, final judgement etc(basically anything).

Right to file a suit is different from the right to file an appeal and the right to file an appeal is not as free as the right to
sue. And as when you go higher up the hierarchy the right to appeal keeps becoming narrower as due respect has to be
given to the time of the courts.

High courts exist in every state. Every state is divided into further session divisions (each district is a session.) But
certain areas exceeding 1 million population can be divided into metropolitan courts so that better administration is
there, this can be done by a notification by the state. It would be under a metropolitan judge.

Session divisions:

Each division has sessions court which can be of three types:

1) Sessions judge court

Includes sessions judge and additional sessions judge- can give higher punishment
Session court has no limit, its just like a trial court and can also give death penalty.

Presided by sessions judge (no limit of punishment)

followed by additional session judges or assistant sessions judge (can punish upto 10 years).

Whether one is assistant or additional depends on the way of appointment by the high court.

Under the sessions court itself:

2) Court of judicial magistrate (CJM) which is presided over by chief judicial magistrate

3) Courts of metropolitan magistrate (CMM)- chief metropolitan magistrate can give a sentence of 7 years only. Every
metropolitan area will have this, state govt appoints metropolitan and chief judicial magistrate in consultation with the
HC

-The constitution talks about only the powers of SC and HC

The constitution does not speak specifically about the subordinate courts and talks only about the Supreme court and
high court. In criminal matters the supreme court only has appellate jurisdiction, this is a second order of appeal and the
high court has the first order of appeal.

Some powers for criminal law have been given to the executive as well for better punishment and judiciary has been
given the power to punish and these powers are allocated by the CRPC.

Section 1 of CRPC lays down the classification of courts.

Section 6 talks about courts under CRPC below SC and HC

8th september

Article 136: Special Leave Petition- Accept the petition and convert the matter into Appeal or reject the petition.

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.

Another route to appeal in SC is Special Leave Petition, other than certification by tfC. Notwithstanding means/signifies
non-obstante which means it also shows relation with other provisions of the Act. It will stay and will not wriggle away
because of other provisions of a particular legislation. This means Article 136 will not be done away with because Article
132,133,134 are applied. While talking about HC in regards to Special Leave Petition, it also talks about tribunals.

A files a petition SC can accept. Becomes appeal

SC can reject. No appeal

So, filing a petition under Article 136 in itself doesn't make it an appeal. Only if SC accepts it does it become an appeal.
The use of 'may' in Article 136 shows discretionary power of SC to either accept or reject a petition. This means that it
is more expansive than the case under Article 134(A). Where the court is pronouncing its decision( either SC accepts or
rejects the petition under Article 136); then it has to be provided with its reasoning; this is known as the Speaking Order.

134- appellate jurisdiction, matters must come from HC to SC but in case of Art. 136 cases can go straight to SC.
Discretion in 136 is paramount

134 provides limitations and criteria for appeal to be deemed fit, 136 has no such fetters provided.

Art 136 even though gives wide powers, general practice indicates used pretty sparingly as a residuary power in
extreme circumstances- grave injustice, only when no other recourse is available
Art. 141- applies in SLP’s after all it’s a declaration by SC : Law declared by Supreme Court to be binding on all
courts.—The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Even if SLP is rejected by SC, the party still has all forms of recourse available in forms of normal appellate jurisdiction

SLP can also be granted on interim judgements too, the connotation of Special Leave is the discretion of the SC to
ALLOW an appeal if required

We bifurcated the jurisdiction for this purpose itself to make it narrow, it’s applicable on civil and criminal cases both
unlike other jurisdictions

Jurisdiction | SUPREME COURT OF INDIA (sci.gov.in)

9th September

Cognizance of offence
Pre Proceeding vs Post Proceeding stage

Some powers for criminal law have been given to the executive as well for better punishment and judiciary has been
given the judiciary the power to punish and these powers are allocated by the CRPC.

Section 1 of CRPC lays down the classification of courts.

Section 6 talks about courts under CRPC below sc and hc.

High courts in every state. Every state is divided into further session division (each district is a session.) But certain
areas exceeding 1 million population can be divided into metropolitan courts so that better administration is there, this
can be done by a notification by the state. It would be under a metropolitan judge.

Within a session court-

Presided by sessions judge(no limit of punishment) followed by additional session judges or assistant sessions
judge(can punish upto 10 years). Whether one is assistant or additional depends on way of appointment by the high
court.

After a session court comes court of judicial magistrate(upto 7years) which is presided over by chief judicial magistrate

Section 3(4) of CRPC talks about duties of any magistrate. Refer to pdf sent by Sir on 6 september.

Steps for an offence in court:

1. Cognizance of an offence is taken by a magistrate when the report on it is furnished by police to him after an
investigation and normally judicial magistrate takes cognizance and not anyone from the session court.
2. While applying the mind on the matter the judge must examine the complainant as well and he will have to
decide if there is a prima-facie. All this must happen at the time of taking cognizance.

3. If at all a sufficient cause for complaint is not found then the case is dismissed on the basis of examination. If
sufficient ground is there then proceedings are initiated before the magistrate only. If the matter is too grave to be
under a magistrate’s jurisdiction then the trial is started directly in a sessions judge.(note- If a complaint is dismissed
then it can still be opened again and res judicta does not apply because there is no initiation of proceedings,

Courts of metropolitan magistrate- chief metropolitan magistrate can give a sentence of 7years only.

The constitution does not speak specifically about the subordinate courts and talks only about Supreme court and high
court. In criminal matters the supreme court only has appellate jurisdiction, this is a second order of appeal and the high
court has the first order of appeal.

10th September

Jurisdiction - Takwani cpc

Stated simply, "jurisdiction" means authority to decide. "Jurisdiction" may be defined to be the power or authority of a
court to hear a cause, to adjudicate and exercise any judicial power in it.

Authority to deal w a matter determined by-

1) subject matter 2) pecuniary jurisdiction 3) territorial limits

Jurisdiction doesn’t arise bc of consent of parties but by law itself

Not bc people agreed that a certain court can handle their issue, but by parliamentary law the court has jurisdiction

Consent does not confer on parties jurisdiction that the court didn’t have in the first place
Neither can parties take from courts jurisdiction of a matter

If more than one court has jurisdiction then parties however have choice to choose their court

It’s also possible to confer jurisdiction on an arbitration tribunal tho

Whether a court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by that
court. The question depends not on the truth or falsehood of the facts into which it has to enquire, or upon the
correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the
conclusion of the inquiry".

The decision will be held invalid or nulled if there is a jurisdictional error.

Distinction b/w jurisdictional error and error in law within jurisdiction.

Whenever the jurisdiction of a court is challenged, that court has inherent jurisdiction to decide the said question.*
Every court or tribunal is not only entitled but bound to determine whether the matter in is asked to exercise its
jurisdiction comes within its jurisdiction Similarly, where a tribunal derives its jurisdiction from the statute which it or not
that creates it and imposes conditions under which it can function, it goes without saying that before the tribunal
assumes jurisdiction in a matter, it must be satisfied that those conditions in fact exist. Such facts are known as
preliminary or jurisdictional facts.

A civil court has inherent power to decide the question whether it has jurisdiction to entertain, deal with and decide the
matter which has come before it.The jurisdiction of a tribunal or any other authority stands on a different footing. Where
Parliament has invested such a tribunal with the power to decide and determine finally the preliminary facts on which its
jurisdiction depends, it can decide such facts and the finding recorded by the tribunal cannot be challenged by certiorari.
But where a statute creating or establishing a tribunal does not confer that power on a tribunal, an inferior tribunal
cannot, on a wrong decision on preliminary or collateral fact, assume and confer on itself jurisdiction which it does not
possess. Such an order can be challenged by certiorari.

15th September

CIVIL JURISDICTION
Error in law and error in judgement
Limitation period

Right to file suit- depends on nature of suit, subject matter- Limitation act- max time till which I can file a suit on a certain
matter
This time period can’t be transgressed- won’t be able to file a suit
Doesn't mean the court does not have jurisdiction on that matter
Primary- the rights you get arising from the contract
Secondary- Right to file suit

Jurisdiction

Keeping law in consideration, the court will decide its jurisdiction if it is challenged. Court cannot expand its jurisdiction
or modify it , it can only define and establish its own.
Decisions won’t be valid if given beyond jurisdiction. Even if judgement is correct, but because no juris. its null and void.
So there's a distinction between jurisdiction error and error of law .

In common law, a principle- if a court has juris. to decide matter, it has juris to decide matter rightly or wrongly. If no juris-
invalid. If juris but wrong decision- correct until it is challenged further.
Eg Rajas. HC can’t decide upon a specific contract. It wrongly assumes jurisdiction, so error in juris- even if
interpretation is correct=> decision not hold valid. Still null and void if not challenged in the future.

If HC had juris. but it misinterprets the contract act and gives wrong decision. It WILL bind parties, holds values until it is
challenged further. Error in law but in jurisdiction- decision will be valid but can be challenged. Court has juris. to give
wrong decision. That’s how they bifurcated jurisdictional and non-jurisdictional issues. This was traditional approach.
BUT not always easy. Court can be given power to deal with matter but can
Eg HC can try capital punishments.

Mathai vs Varkey Varkey

A court had given a decision, for sometime no suit was filed for overturning the decision and then when another matter
arose the other party went to high court filed a fresh case and alleged that the suit was time barred and time limited for
filing suit had passed before judgement and the judgement in the property case should be considered as a nullity.

High court then looked into whether the transgression of time was error of law or error of jurisdiction. The court said that
the jurisdiction was there for the subject matter and the parties and the pecuniary jurisdiction was also there.

Further it said that even if there is an error in interpreting the limitation period then it will be considered and it will be an
error of law and not of jurisdiction therefore it cannot be considered as nullity and one can challenge only on the basis of
this.

Let us take a case where the recognition of error of law and jurisdiction is difficult

So, let’s say a robbery happened. And the court had jurisdiction for robbery but then considered evidence which was
outside the jurisdiction, then decide.

Over the years, difference b/w error in law or error in jurisdiction have become blurred.

Eg- robbery, court has jurisdiction. While discussing the matter, the court entertains an evidence which the court has no
authority over. Now is it an error in law or error in jurisdiction?
Eg 2- court is required to take into account principles of natural justice. In a case the court had one authority out of three
and did not also take into account the principles of natural justice. Now what?

Ques- Does it mean that once the court starts taking up the merits of the case, now it can’t be said that it does not have
the jurisdiction to try the case?
Ans- error of law amounting to error in jurisdiction-
error of law not amounting to error in jurisdiction-

error of law of two types due to either lack of jurisdiction [like u did not have the authority to decide the matter]
OR excess of jurisdiction but you are exceeding the confines of your jurisdiction.

Why is it important to make the distinction?

And- bc a jurisdictional error is nullity.

Appellate jurisdiction of HC: re-hearing the matter all together, legal and factual aspects taken up again. District court
judgement will be replaced. It is for both types of errors.
revisional jurisdiction of HC: HC is only determining whether the case DC tried was under its jurisdiction or not. Will not
look into the matter or case. It is for only jurisdictional error.

Ques-Where is it practically relevant?

Ans- to check whether the higher court will have appellate jurisdiction or revisional jurisdiction.

Right to appeal differs from the right to review.

Let us say that the court has rightly applied all the material factors and come to a conclusion after that but you don’t
agree with the court’s decision. Right to appeal you have.
Or the court has not applied one or more material aspect on the case or applied them wrongly. Now right to revision is
available.

Error in jurisdiction is a subset of error of law. Everything is a matter of law only but there are certain legal errors that are
not of that level that can go on to affect the jurisdiction of the court. Error of law- HC can reverse the decision.
Jurisdiction is coming from law only.
17th September

SC

1. Original Jurisdiction (art 131)- is not exclusively civil jurisdiction

2. Appellate Jurisdiction- included in civil jurisdiction
- Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
- SLP (art 136)
3. Writ Jurisdiction (art 32)- extraordinary jurisdiction- can directly approach SC- for the purpose of enforcing FR’s
mentioned in part III of const.

Art. 133
An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court
in the territory of India 7 [if the High Court certifies under article 134A—]

(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.]

Art 133 becomes more difficult bc

- Art. 134- only required case is a fit one for appeal to the Supreme Court not “substantial question of law” - even
more difficult as civil matters involve personal rights rather than public rights as in criminal matters
- that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
- no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment,
decree or final order of one Judge of a High Court.

Civil matters have a concept of bench

- Matter before single judge bench, also have the right to file an INTRA-APPEAL before a LARGER bench of HC

The higher you go in appeal format

- More restrictive interpretation as u go up
- Substantial question of law even more restricted interpretation

District court is highest court below the HC in civil matters

District- Pecuniary limit differs across state, no uniform by CPC, state govt.s can define their own
HC- no pecuniary limit

CPC- Sec 6

Pecuniary jurisdiction .-Save in so far as is otherwise expressly provided, nothing herein contained shall operate to
give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if
any) of its ordinary jurisdiction.

No provision of CPC can be read in such a way where jurisdiction can be conferred which doesn’t exist, can’t transgress
unless explicitly mentioned

20th September
Territorial jurisdiction- general principles/ rules provided by CPC (sec16-20)
- Gives different criteria for territorial limits

For eg- Sec 16

-immovable property- place of property defines territorial jurisdiction
- Will hold true for small cause courts, district courts and HC

Sec 20
-residuary matters which cant be addressed under sec 16,17

Cause of action-

Difference between right to file a suit and right to file an appeal

( Right to file suit is diff from right to file appeal, value of right is diff.

section 9- courts can accept all civil suits, every court juris to determine

Right to file suit- inherent right, even if an Act doesn’t provide for it you can file. Default rule is you have the right to file.
Not dependent on explicit confirmation of the same by legislature.

Right to appeal- both 1st and 2nd order of appeal. Depends upon how legislation is worded. (incomplete). Right coming
from legislation.

In civil matters whenever judgement is given, it has divisions. Apart from ratio and obiter. Court will give reasons and
explanations and decisions

One part will be a formal decision stating the rights and obligations- This is a decree in a civil matter.
Eg- A breached contract, was obliged to sell. Not necessarily final, rights and obligations can be given before the final
decision is given too.
Rights and obligations- related to the subject matter.
Eg suit about maintenance. Court will look if marriage is valid or not to see if divorce valid or not. Determination of
marriage validity- not a final decree, a preliminary decree. This is not a final decision- but it is a conclusive decision.
Eg- Partition settlement-Court while determining if allow partition, will have to determine what are parties shares. Share
declaration will be a preklimary

Permanent injunction- gives rights and obligations, can be prelim. decree but not other injunctions as does not
conclusively determine rights. Stay order does not give rights and obligations.

Decree can be appealed

Def clause of CPC (2)-

Execution proceedings- get the decree executed. Party in whose favour the decree is given is called decree holder, and
the other party has to do something. Measures to get him to do stuff if he refuses. That’s why distinction is made
between judgement and decree- you’re not getting judgement executed, you’re getting decree executed.

In criminal law- distinction bw sentence (punishment) and judgement (decision plus reasoning )
one part will be reasoning.

Order- formal expression of the civil court that’s not a decree, can be preliminary

Decree- The formal declaration of rights and obligations is called decree in civil matters.

Explanation – a decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly
final.

Hence, a decree is a formal expression of adjudication which conclusively determines the rights of the parties in a suit. It
may either be preliminary or final. The explanation to the section says that a decree is preliminary when further
proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary and partly final. Hence a preliminary decree is a decree
passed in a suit but doesn’t dispose off the suit whereas a final decree disposes off the suit. A preliminary decree only
comes out as a consequence of determination of substantive rights. Note that an appeal always lies against a decree
and not a judgement.

Make notes for 21st

Precedent as a concept for this module ended

22nd september

CUSTOMS AS A SOURCE OF LAW

-usually uncodified

Essentials of a valid legal custom

Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition.
Some of the essentials of a valid custom are
● Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial.
● Continuity: It must have been practised continuously. If a custom is disturbed for a considerable time, a
presumption arises against it
● Reasonableness : A custom must be reasonable. For declaring a custom inapplicable on the ground of
unreasonableness, it will have to be shown that it is obviously opposed to reason.
● Conformity with statute law: A custom, to be valid, must be in conformity with statute law. It is a positive rule
in most of the legal systems that a statute can abrogate a custom.
● Consistency: Custom must not come into conflict with the other established customs. There must be set in
opposition to the other custom.
● Certain- It must be certain, specific and should not be ambiguous or vague. Where its existence becomes
doubtful and indecisive, it will not be recognized as such.

Common law- combination of customary law and precedents

Development in the face of lack if codified law

Proliferation and reliance on local customary practices for resolving issues
These local customs led to adoption of general customs

Lex scripta- written law

Lex non scripta- unwritten law

In the words of Blackstone

"The municipal law of England . . . may with sufficient proprietary be divided into two kinds; the lex non scripta, the
unwritten, or common law; and the ler scripta, the written, or statute law. The lex non scripta, or unwritten law, includes
not only general customs, or the common law properly so called; but also the particular customs of certain parts of the
kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions."

Such language is an echo of the past, not an accurate account of the facts of the present day. Nevertheless even now
custom has not wholly lost its efficacy. It is still one of the legal sources of the law of England, and an examination of its
nature and operation pertains to modern juridical theory, and not merely to the legal history of antiquities.

Legislature over the years with dev of society has overpowered customary law

Customs can exist in two forms:

- Exists in itself, binding value, need not be incorporated in law

Article 38 (1) (b) of ICJ statute - international custom, as evidence of a general practice accepted as law;

For a practice to qualify as international custom it must practiced by majority states

existence of an established usage is the basis of a rational expectation of its continuance in the future.

Opinio Juris: Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in
question. The International Court of Justice reflects this standard in ICJ Statute, Article 38(1)(b) by reflecting that the
custom to be applied must be "accepted as law".

An essential element of custom, one of the four sources of international law as outlined in the Statute of the
International Court of Justice. Opinio juris requires that custom should be regarded as state practice amounting to a
legal obligation, which distinguishes it from mere usage.

General custom/ Legal customs

Custom itself is a direct source
Eg of intl. Customary law: The precautionary principle indicates that lack of scientific certainty is no reason to
postpone action to avoid potentially serious or irreversible harm to the environment.

Conventional custom
A Conventional custom is one whose authority is conditional on its acceptance in the agreement between the parties to
be bound by it. There is a process by which conventional usage comes to have the force of law

It becomes a source of law, the courts need to recognise the practice

The custom itself is not source, needs to be added to the legislation
Eg of Indian Contract Act

Pg 192-197 salmond fitzgerald

Third way in which custom is a source of law:

PART III FUNDAMENTAL RIGHTS

Article 13. Laws inconsistent with or in derogation of the fundamental rights.

1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they
are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made
in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of
India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India
before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any
part thereof may not be then in operation either at all or in particular areas.

Right to Freedom of Religion 25. Freedom of conscience and free profession, practice and propagation of religion. It’s
an individual right - does not become a source of law as a custom

Role of custom as law? How does it get incorporated as a source under the constitution

A custom or usage if proved would be law in force under this article (must have some leverage or is actually codified
into legislation). These customary rights having the force of law can be taken judicial notice by courts under Section 57
of the Indian Evidence Act 1872.

Article 13 of the Indian Constitution describes the means for judicial review. It enjoins a duty on the Indian State to
respect and implement the fundamental right. And at the same time, it confers a power on the courts to declare a law or
an act void if it infringes the fundamental rights.

The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women
is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws
thus derived must be consistent with the Constitution least they became void under Article 13 if they violated
fundamental rights.

Personal laws have force of law in India- therefore they fall under the definition of laws under article 13- which mentions
that the state shall not make any law which abridges the rights given under law???

answer-

- Justice Chagla opined that, since the Constituent Assembly actively used the expression “Custom and usages”
in the definition of “law” in Article 13, it intended for them to be tested against Part III of the Constitution. At the
same time, however, the definition of Article 13 was purposely made to exclude “Personal Laws” so that
immunity could be granted to these Personal laws from any Constitutional challenges.
 - Justice Chagla argued that it is clear that the Constituent Assembly had intended to test personal laws under
Part III of the Constitution, it would not have specifically inserted Articles 17 and 25(a)(b) to prohibit or invalidate
some facets of Hindu Personal laws for being violative of Articles 14, and 15 etc.

- Entry 5 of the Concurrent List that vests with the Legislatures the power to enact laws is a specific provision that
empowers the Legislatures to amend the Personal laws when necessary and ultimately establish the Uniform
Civil Code.

- the expression “laws in force” under Article 13 has not been used in the “general sense”, and specifically refers
to statutory laws. He asserted that only those laws fell under the expression “laws in force” under Article 13, that
have been passed by the Legislature or other competent authority and until the Personal laws satisfy this test,
they could not be included in the definition of “laws in force” under Article 13.

- Thus, in other word, he argued that since Personal laws in India cannot be considered as “statutory laws”, they
could not be tested against Fundamental Rights under Article 13 of the Constitution. The Personal laws, thus,
were outside the scope of Part III of the Constitution.

Personal Laws vis-à-vis Fundamental Rights, Part III of the Constitution | CJP

Domestic sources for customs as law egs:

- Legislation (ICA)
- Personal laws (Hindu Marriage Act)
- Constitution (FR’s and Article 13)

24th September

International Customary practice:

- General: General majority states following it- entire intl. community

- Local: Customs specific to a particular region of the world (like a continent)

Local Custom: The local customs are those which operate have the force of law in a particular locality. The authority of a
local custom is higher than that of general custom. Suppose, there is an international community having international
customs, there must be some local regions following customs of their own. They will also follow those 5 characteristics
of legal customs

In case of conflict, local usually prevails over general due to lex specialis rule over lex generalis
Harmonious construction is also possible
Adverse Possession:

Elapse of time gives right over territory- by prescription

Adverse possession – Long usage – Rights

Customs – Long usage – Rights/Duties

Still, they are different. Customs are applicable to a particular territory. Adverse possession tells us about who has the
right. Customs are a source of law. Adverse possession is a concept that has arisen of the customary practices

27th September

MEANINGS OF COMMON

EQUITY AS A SOURCE OF LAW UNDER COMMON LAW

See in common law system the system was divided into common law courts and equitable courts

1. Where on the one hand common law courts were meant to provide for reliefs by strictly applying common law
principles, equitable courts were meant to provide for the same in the name of good conscience. Slowly a
 number of reliefs emerged from equitable courts and became a part of the system. Even to this day there are a
number of concepts which historically emerged out of such equitable courts. Now we do not maintain this
distinction between common law courts and equitable courts anymore. But then the idea that in certain
occasions legal gaps can be filled through equity is still maintained . So now equity is understood as an
exception to the strict rigours of law and themselves become a source for certain relief. This is the reason as to
why you mention in your prayer that court may grant any other relief in the name of equity and good conscience

2. To make remedies available for harsh situations, to establish new procedures, and in order to meet all sorts of
new problems, recourse was given to the authority of the King in his sovereign capacity; he delegated this
function to an official called the Chancellor of the Royal Court. In the course of time, this became the Court of
Chancery, through which there developed a substantial body of collateral and independent law. Thus, English
law consisted at the same time of "law" and "equity”

Two different parallel law systems- common law system and equity court system

Even though distinct systems created, the principles equity also developed which took a lot from the common law
principles

Both the courts have similar powers- none is appellate to another

This created a lot of issue with the english law system- court of equity started taking approach where if a particular relief
a party seeks , if appropriate relief is provided under equity court it started barring people from approaching the common
law courts

- Started needing to prove that the matter lies n the jurisdiction of the court
- Issues arose when differences of opinion of courts

To resolve this conflict they decided to launch the Judicature act- it combined both these systems- it’s merged into one

The existence of the court of chancery alongside the courts of common law had real advantages for the development of
the law and the working of justice in individual cases, but it also gave rise to the possibility of conflict when two courts –
one of chancery and one of common law – made conflicting orders in relation to the same facts. The details of the way
in which this conflict was resolved are a fascinating piece of legal history.

Briefly, however, in the early part of the seventeenth century it became established that, where equity and the law
conflict, equity prevails. Furthermore, the enactment of the Judicature Acts 1873–75 merged the administration of the
systems of law and equity, laying the foundations of the present arrangement whereby both systems are applied by the
same courts.

The Judicature Act went on to develop combined court systems- like the High Court and the Court of Appeal. The effect
was thus unification of the courts. In 1876, Appellate Jurisdiction Act came into being which established the House of
Lords as Apex court.
The unification of the courts by the judicature act however did not say anything about substantive law. So, unification
was majorly at institutional level. The relief available through common law and equity law were still different and
distinguashable.
In the context of the Indian legal system, common law and equity have been combined effectively- the codification has
made the difference very very narrow to the point it isn't that practically viable. A way in which the idea of equity still
prevails- the discretionary power of the court to provide relief still exists even if it’s not formally written down or
mentioned strictly

Read glanville williams for equity and ian mcleod

EQUITY AND COMMON LAW IN INDIA

1. We have noted that there never were in India any separate courts administering equity. The Supreme Courts
had both common law and equity jurisdictions.As courts of equity they had power and authority to administer
justice as nearly as may be according to the rules and procedure of the High Court of Chancery in Great Britain.
In a sense these courts combining both common law and equity jurisdictions brought about in advance the
fusion of law and equity jurisdictions which was affected in England by the Judicature Act of 1873. In England
the Judicature Act did not fuse the two systems of rules.

2. In India,however, law and equity were always treated as part of the same system. We have seen how the
principles of English law came to be administered particularly in the mofussil as " justice, equity and good
con-science." In the application of this formula the courts drew liberally both upon English common law as well
as English equitable doctrines. In effect what was applied in India was common law as liberalised by equity.
 3. In India equity worked through and not in opposition to the common law. In England an equitable right or estate
is recognised as something different from a legal right or estate.The interest of a beneficiary in trust property is
in England an equitable interest while the legal interest in the estate is in the trustee. Again in England if a
person agrees to sell land he creates in the buyer an equitable interest in the land. These equitable interests
were the creation of the Court of Chancery.The law in India never recognised any distinction between legal and
equitable interests.

4. As early as 1872 the Privy Council said: " The law of India,speaking broadly, knows nothing of the
distinction between legal and equitable property in the sense in which it was understood when equity
was adminis-tered by the Court of Chancery in England."The same position was reiterated by that court in
1931when it said that by the law of India `` There can be but one owner and where the property is vested in a
trustee the owner must, their Lordships think,be the trustee." It is not surprising, therefore, that some of the
peculiar equitable doctrines were not found acceptable by the Indian courts.

5. However, the statute law of India has incorporated in itself to a substantial extent equitable rules and
doctrines. The Indian Trusts Act of 1882 embodies in a concise form the whole structure of trusts built up by
the equity courts in England. In order to clarify the principles enacted in the sections, illustra- tions have been
appended to some of them which in many cases are based on English decisions.

The Act also deals with " certain obligations in the nature of trusts." These are attempts to enumerate broadly
circumstances under which a person may be placed in the position of a trustee in reference to another. These "
obligations in the nature of trusts " are no different from the implied and constructive trusts found in the decisions of the
English equity courts.

6. Another instance of an almost bodily transplantation of the doctrines of English equity courts is to be found in
the Specific Relief Act of 1877. It deals with cases in which courts will order restitution of specific property and
order contracts to be specifically performed. It also enumerates the circumstances in which the courts will grant
the relief of rectification and cancellation of instruments.

The Act is in a sense a blend of common law and equity inasmuch as it also makes provision in a qualified manner for
the writ of mandamus in certain cases. This statute powerfully illustrates how those who were charged with the task of
drawing suitable codes for India discarded the distinction between law and equity in English jurisprudence, not
hesitating to include in an Act dealing mainly with the equitable relief of specific enforcement, a remedy in the nature of
the Crown writ of mandamus

30th September

Meaning of Common

- Forming a system of unified court mechanism; instead of moving from one place to another, courts were located
in one geographical area, leading to a wholesome legal system. This system was called the common law
 system which was applicable upon everyone in a coherent manner. The rules are common to everybody.
Unification of the system, instead of coming from diff countries it matured into a unified system.

- Common has another connotation, the rule of law is coming from the community as a whole through their
customs and culture, rather than coming from a written text by an authority. The rules will be their rules and
common to them, "coming from us and being applied upon us so it's common to us.

History of Common Law

- The common law, as a legal system, is associated with its origin and development in England, where the social
and economic and political history as well as the foundation of its law stem from the feudal system and its
incidents. One aspect of this system was that the settlement of disputes was conducted on a purely local level,
each region acting independently and without knowledge of what the others were doing.
- The rights and obligations of individuals flowed from the nature of their personal status within the system. When
the king sought to establish a more important central power, he ran into serious conflict with the local
authorities. Nevertheless, in his quality of sovereign judgement and source of justice, and to discharge his
responsibility for the preservation of peace, he established his own courts with judges who went on circuit
throughout the entire country.
- Even though these were not courts of general jurisdiction, but only competent in certain kinds of cases, they
were not well received at first. Suffice it for present purposes to say that the king's courts were the victors in the
ensuing struggle for authority.
- By means of their decisions they created the first uniform rules and the first basis of uniformity in the legal order,
by establishing general norms which were common throughout the whole country. It was a form of gen- eral law
or common law for all parts of the realm; hence the name, common law

Writ System under British common law

- Relief in the form of court given orders and directions

- To initiate proceedings, we approach the king and present your case. If the king approves, he will give you
directions in the form of writs and we have to present it to the court.
- Normally writs were issued by the king’s office or the chancery’s office as a result of claim of an individual right
- The writs once issued by the office could be produced before court, then the court would identify the wrong
caused and provide relief
- This is an important feature of the common law system, because a record of writs is maintained- in the civil law
system a new order is passed everytime by the court according to legislative code. Thus there is no precedent

Prerogative writs (from pov of the system)

Depends on king’s discretion of prerogative- issued as right of the king

Certain writs were issued on king's discretion called prerogative writ as a matter of king's rights. Eg! - habeus
corpus - it is the king's right to order someone to be presented.

Writs like habeas corpus mandamus etc. all of these were originally prerogative writs coming from the king’s
office as a matter of king’s rights
 A record was maintained with reference to the writs available: procedure for writs, classifications- writ as a
cause of action, writ as a matter of right, etc.)

Modern times the writs in India are treated as individual claim of rights- no system of prerogative writs

Recap:

Usually writs exit for most issues and evidence is taken into account for each issue

However, situations exist where the writ might not be appropriate for the issue at hand, people started approaching the
king instead for appropriate relief
In such cases, as a matter of exception the king would digress and provide the appropriate remedy
Later on this work was transferred to the Chancery and he came to be known as the keeper of the king’s good
conscience. This led to formation of a system alongside the common law courts- called the Chancellor’s court in
accordance with king’s conscience called the Equity Courts

Issues of Jurisdiction arose- and codification and amalgamation of the 2 courts

A branch of legal doctrines also arose from the equity courts and the common courts.

1st October

Difference b/w remedies under common law and in equity

Damages are a common law remedy, and the basic principle, sometimes called the compensation principle, is:
‘[Damages] should as nearly as possible … put the party who has suffered in the same position as he would have been
in if he had not sustained the wrong for which he is … getting … compensation.’

In some cases the courts will deviate from the compensation principle and award a sum other than that which a
genuine quantification of the loss requires. These are cases involving contemptuous, nominal and punitive – also
known as exemplary – damages.

Damages quantified according to the compensation principle are known as substantial damages, but this merely
means that they are more than nominal, and not that a large sum is necessarily involved.

COMMON LAW RELIEFS: (exceptions to the compensation principle)

1. CONTEMPTUOUS DAMAGES: An award of contemptuous damages is the court’s way of showing that it
regards the plaintiff with contempt for having brought the action, even though it has been successful. A typical
case for contemptuous damages would be a libel action where the plaintiff has not actually suffered harm, and
the bringing of the case has generated more publicity for the libel than its original publication had achieved.
 Traditionally, they are the smallest coin of the realm, so currently they are one penny. Bearing in mind how
contemptuous damages work, it may seem somewhat artificial to call them a remedy at all. However, they are
still damages, even though only a trifling amount. The point of principle which they illustrate is that, as you will
remember from the origins of equity, the common law has no discretion to refuse a remedy to a successful
litigant.

2. NOMINAL DAMAGES: Nominal damages are essentially different from contemptuous damages, even though
they too are awarded where the plaintiff cannot prove actual loss. The difference is that by awarding nominal
damages the court accepts that the plaintiff was acting reasonably in bringing the case.

For example, in Hanfstaengl v WH Smith & Sons (1905) 92 LT 676, the defendants had infringed the plaintiff’s
copyright. Even though he proved no loss, the plaintiff was awarded nominal damages to mark the fact
that his rights had been infringed and to discourage others from undertaking more serious
infringements in the future. Traditionally, nominal damages are £2, although both smaller and larger sums
have been known.

If there appears to be little difference between nominal and contemptuous damages the appearance is deceptive. The
real significance of the distinction lies in the parties’ liability in costs. The basic principle is that the court always has
discretion as to the award of costs. However, this discretion is exercised according to well-established
principles.

Normally an unsuccessful party will be ordered to pay the legal costs of the successful party, and this will be applied in
the case of nominal damages. In the event of contemptuous damages, however, there is a refinement to the usual
practice, which results in the plaintiff paying the defendant’s costs, even though the plaintiff has won. The plaintiff’s
victory, therefore, is Pyrrhic. Liability for costs is not, however, always limited to the parties

3. PUNITIVE DAMAGES:

Punitive or exemplary damages are the third exception to the compensation principle. Here the court is deviating from
the compensation principle by self-consciously awarding more than the plaintiff has lost, in order to punish the
defendant and make an example of him.

Despite the exceptions, it is important to remember that the usual basis for damages is compensatory. We have seen
that there may be cases where damages are difficult to quantify, but these cases must be carefully distinguished from
cases where damages are wholly inappropriate.

THERE IS CLEAR DISTINCTION B/W RELIEFS EMANATING FROM BOTH THE COURTS DESPITE THEIR
AMALGAMATION

EQUITY RELIEFS:

1. REMEDY OF SPECIFIC PERFORMANCE

- The equitable remedy of specific performance is the order of the court which compels the defendant actually to
perform the contract, rather than paying damages for failing to do so.
 - For example, where there is a contract for the sale of a second-hand example of a popular car, if the seller fails
to perform the contract, the purchaser can easily buy a similar car elsewhere. The measure of the purchaser’s
damages will be the difference (if any) between the price originally agreed and the price actually paid. Because
any loss will be capable of being compensated by money, damages will be an adequate remedy. On the other
hand, if there is a contract for the sale of an ‘old master’ painting, and the seller fails to perform the contract, no
amount of money will enable the purchaser to acquire the practical equivalent of that painting elsewhere, simply
because it has no practical equivalent. Therefore the court may decide to compel the seller to perform his
contract

2. INJUNCTIONS

- An injunction is an order of the court which, if breached, is enforceable by means of committal to prison for
contempt of court.
- However, one of the maxims of equity is that ‘equity like nature does nothing in vain’, and therefore the court will
not grant a remedy which it would be unwilling or unable to enforce
- Order to stop as relied only if there is legal right in the matter
- Copyright example movie not allowed to make

Many more such reliefs coming out of equity exist

- equity began as a court of conscience, attempting to work justice where it thought the common law had failed to
do so. This tradition still endures. One aspect of this is that equity does not bestow its favours indiscriminately,
but may well find relevance in the conduct of those who are seeking its aid. As one of the equitable maxims
puts it, ‘he who comes to equity must come with clean hands’.

- The modern court exercising equitable jurisdiction is the direct descendant of a court which came into being as
a court of conscience does not entitle it to act as a general arbiter of morals, as distinct from the morality of the
individuals concerned in the case in relation to each other. However, all equitable remedies remain discretionary

The judicature act therefore only institutionally amalgamated the two forms of courts but the substantive principles
emanating from the same create a clear distinction b/w how relief is given today.

4th October

Equity and trusts

It would be wrong to discuss equity as if it dealt only with remedies. One of the most important aspects of equitable
doctrine deals with the law of trusts. A trust may be described as the situation which exists when one person (a trustee)
holds property on behalf of another person (a beneficiary). There is a very substantial body of law dealing with the way
in which such relationships can be created and terminated, and the rights and duties of the parties while the relationship
exists.
Concept of trusteeship also emanates from equity, an eg of a legal doctrine that comes from equity

Nobody can have a better interest than the owner of their own property, they can do whatever they want with the
property, now how do we hold the owner responsible

Legal ownership rights and beneficiary rights

Concept of Trust- Owner can use their property to benefit someone else ‘

B) Difference between the Trust And Contract:-

I) A contract is a common law personal obligation resulting from an agreement while a trust is an equitable proprietary
relation which can arise independently of an agreement.
ii)A contract is enforceable at Common Law,it gives a right in personam while trust reposed as a matter of confidence
was enforced in equity courts.
ii Private Trusts are governed by the Indian Trust Act 1882.
iv)Contract gives right in personam while trust gives right in rem.

C) Difference between the Trust and Bailment:-

i) Bailment was recognised at Common Law and the rights and obligations of a bailee are legal whereas a trust is
merely equitable having equitable rights.

ii)Only Person Chattels Can Bailed,while any property maybe holding trust.

iii)A bailee has only a special property in bailment,the bailor keeps general property with himself,while a trustee has the
full legal ownership subject to the obligations attached to the property in trust with him.
IV)Only a bailor can enforce the duties of the bailee,but an obligation under the trust can been forced on anyone without
notice of the trust. V)A bailor uses his special rights for his own benefit but a trustee is bound to use the property on
behalf and for the benefit of the other

5th October
CRIMINAL JURISDICTION

1. MAGISTRATE COURT

- Criminal matters OG jurisdiction w magistrate court

- Virtually all criminal cases begin in magistrates’ courts, and well over 90 per cent also end there
- Ability to pass it’s own sentence

(1st appeal)- defendant approaching as right

- Only defendant has right to appeal against magistrate court in the crown court
- The prosecution has no corresponding right of appeal against an acquittal, nor against a sentence which it
considers to be too lenient.
- An appeal against conviction is a full re-hearing, which means that the witnesses are called again, and their
evidence is assessed afresh. Where there is an appeal against sentence only, no witnesses are called, but the
prosecution presents an outline of the facts.

Court refers case itself:

A) One possibility arises in respect of defendants who have not yet been convicted. These cases will be
transferred to the Crown Court for trial under a procedure

B) This arises where the magistrates convict defendants but feel that their own powers of sentencing (which are
very much more limited than those of the Crown Court) are insufficient to enable them to dispose of the case
appropriately

2. CROWN COURT
(2nd appeal)

Criminal jurisdiction -
The magistrates may send defendants to the Crown Court for either sentence or trial. Strictly speaking, it may be
argued that the prior involvement of the magistrates means that neither of these jurisdictions is at first instance, but on
the other hand neither is appellate. They are best regarded as being effectively a stage in the first instance procedure.

Court refers case itself:

- Matters of indictment/ indictable offences- cases regarding murder, rape, grave offences- magistrate court
can either not try it’s matter or it can try the matter but passing of sentence it feels that it doesnt have the
jurisdiction to pass- the crown court is more appropriate to pass sentence

In such cases the court does not need an explicit appeal to be filed by defendant, can send it by its own

- The decision of the crown court can be appealed to the HC by both plaintiff and defendant
- A certificate would also have to be granted in this case too
- Eg of case stated to be so

(3rd appeal)

Trial by Jury
- If the defendant wants, can be sent to the crown court
- Plaintiff does not have this right
- Based on question of fact

Exceptional case: (cases stated to be so)- plea before

Both defendant and plaintiff can do this

- The reference may be in respect of conviction or sentence or both, and the proceedings will be treated as if they
were by way of appeal. Strictly speaking, however, the proceedings are not appellate because they are
instituted by someone other than the person who is affected by the original decision.
- Although the Act does not say so, the procedure is intended to enable cases to be reopened where it is thought
that there has been a miscarriage of justice
- Certificate is to be applied for, based on discretion of magistrate court
(india context- HC to Sc art 134)

If the defendant is appealing from the magistrates on a point of law, the appropriate route is to the High Court,
using a procedure known as ‘appeal by way of case stated’. In this situation the defence loses the advantage
which it has in relation to appeals on the facts and appeals against sentence, because here the prosecution
does have a corresponding right of appeal.

3. HIGH COURT
 High Court can never be a court of first instance in criminal matters unless its a proceedings of criminal
contempt of court.

-The High Court as an appeal court in criminal cases (available to both parties)

Queen’s Bench Division

- The Queen’s Bench Division has an important appellate jurisdiction relating to appeals by way of case stated from
magistrates’ courts, and from the Crown court sitting without a jury (for example, when hearing an appeal from a
magistrates’ court).
- These appeals are available only on points of law, and not on questions of fact. Appeal by way of case stated is a
procedure whereby the court whose decision is being challenged prepares a document (‘states a case’) asking for the
opinion of the High Court.
- The ‘case’ will contain an account of the facts which the court found to have been proved, a statement of the relevant
law as the court understood it, and an application of that law to those facts.
- The court stating the case then formally asks the High Court whether it was right on the law and on the application of
the law to the facts.

- If the High Court disagrees with the lower court, it may remit the case to the lower court, but it does not always
do so. A typical reason for refusing to remit a case would be lapse of time since the facts giving rise to the case
or since the hearing in the lower court, especially when the case is relatively trivial and the appeal has been
brought principally to clarify the law for the future. In these cases the delivery of the court’s judgment alone will
be thought to be sufficient to serve the real purpose of the appeal.

- In the more usual situation where the case is remitted, the High Court may direct either that the lower court
must find the case proved or not proved, or that the hearing should continue in the light of the law as stated by
the High Court.

- Appeal by way of case stated is somewhat anomalous, being an appeal in name, but having some of the
characteristics of the court’s supervisory jurisdiction, at least to the extent that the court may be unable to
dispose of the matter fully, but may have to remit it to the lower court.

- Appeal by way of case stated is generally available to any party to any proceedings in magistrates’ courts. It is
also generally available in the Crown Court except in respect of matters relating to trials on indictment. This
exception is, of course, very common in practice, and appeals by way of case stated from the Crown Court are
rare. However, they may be brought against, for example, a decision made on appeal from a magistrates’ court.

CARDINAL PRINCIPLE- question of law and question of fact

Higher you go in the ladder- question of law becomes exclusive

Usually judge deals w questions of law while jury deals w question of fact
- Distinction relevant to find out the jurisdiction of judge and jury
 4. Court of Appeal (Criminal Division)

- The appellate jurisdiction of the Court of Appeal (Criminal Division) relates to appeals against
conviction, sentence or both from the Crown Court. (Criminal appeals from the High Court go directly to
the Supreme Court)
- In the case of an appeal against conviction, the Court of Appeal has power to hear witnesses, but
seldom does so because most appeals against conviction turn on an analysis of the quality of the trial
judge’s summing-up to the jury.
- Another major function of the Criminal Division is the issuing of guidelines on sentencing for the
assistance of lower courts

CIVIL JURISDICTION

1. COUNTY COURTS

- The County Courts’ jurisdiction is entirely civil, and is exercisable both at first instance and on appeal
 County Courts as courts of first instance

To a very large extent the jurisdiction of the County Courts makes them into a sort of mini-High Court. They
have jurisdiction in respect of contractual disputes and almost all torts. They also have jurisdiction in relation to
probate and divorce, and may have an Admiralty jurisdiction

Judges have very considerable powers of case management, including the power to allocate cases between
the County Court and the High Court, and to give detailed directions on procedural matters. In very general
terms, however, the most complex matters are more likely to be dealt with by the High Court, as are those
involving large sums of money.

County Courts as appeal courts

The appellate jurisdiction of the County Courts is very limited, but one notable field of activity is in relation to
appeals arising out of certain types of action taken by local authorities in respect of substandard housing, and
certain decisions made by such authorities in cases of alleged homelessness. It is impossible to discern any
basis of principle underlying the statutes which allocate such cases to the County Court rather than to
magistrates’ courts. Historical accident appears to have been the major determining factor

2. HIGH COURT

- The High Court’s jurisdiction has both civil and criminal elements, and is exercisable both at first
instance and on appeal. It also has a supervisory jurisdiction.
- Although the High Court is nominally one court, for administrative purposes it is split into three units,
namely the Queen’s Bench Division, the Chancery Division and the Family Division
- Directly from county court high court can be approached

A) - The Queen’s Bench Division deals with civil matters such as claims in contract and tort without any limit as
to value. In addition to this mainstream work, it also has a number of specialist subdivisions, including the
Administrative Court, the Admiralty Court and the Commercial Court.

- (the QB can deal with both criminal and civil matters unlike the other two distinction)
- The Queen’s Bench Division deals with appeals by way of case stated in civil matters, as it does in
criminal matters

B) The Chancery Division deals with matters such as land law, trusts, the administration of estates, bankruptcy,
partnerships, companies, revenue cases and contentious probate, without limit as to value.
- The Chancery Division deals with a variety of appeals from County Courts, including those in insolvency
cases

C) The Family Division deals with matters such as defended divorces, as well as some matters relating to
children, and some probate cases.
- The Family Division deals with appeals in domestic cases from magistrates’ courts and the Crown
Court, the latter being by way of case stated
3. The Court of Appeal
- The Court of Appeal generally

Although the Court of Appeal is nominally one court, it is divided into the Criminal Division and the Civil Division.
- The principal jurisdiction of both Divisions is appellate, but the Criminal Division also has a limited quasi
appellate jurisdiction.
- The Court of Appeal (Civil Division) deals almost entirely with appeals from County Courts and the High Court.
Appeals are said to be by way of rehearing, but in the vast majority of cases only documentary evidence,
supported by the oral arguments of counsel, is received in practice. The procedure, therefore, is not the same
as the full rehearing which takes place on an appeal from a magistrates’ court to the Crown Court

12th October

CIVIL LAW SYSTEM

The term civil law is borrowed from the Roman Legal system. It referred to a system wherein they started to codify rules,
regulations and laws etc. When we talk about how Roman law developed it was similar to the common law countries in
the sense that in the initial years it developed in consonance with court decisions. Only later on it developed a code of
written laws.

The European continent was influenced by the Roman legal system. Romans were among the first few civilizations to
have a legal system. When Europe developed, the Roman legal system had a role to play in evolving the legal system
there – borrowed Roman principles.

There was an ancient period with a very narrow legal system which had strict and limited procedural forms. When its in-
sufficiencies caused excessive hardship, there was established the office of the "praetor," whereby liberal influences
could make themselves felt and be given concrete application.on. The strict ancient law, the "jus civile," was tempered
and at the same time supplemented by the justice and the equity of the new remedies and procedures developed by the
praetors. As public regard grew for the small number of highly skilled jurists, their opinions were often sought for
clarification and guidance.

It was against this background, and to be understood in the light of it, that Emperor Justinian brought together the great
jurists of his day and had them compile the body of law that immortalized his name. ists and scholars. Roman law was
at one of the peaks of its prestige when the several political unifications of Western Europe led to the unification of the
private law in the national movements of codification, especially in France and in German

The essential characteristics of these legislative codifications fixed the basis and determined the nature of the legal
systems of which they were the expression.

The Roman Law System was bifurcated into two:

 1) Jus Civile- – pertain to matters governing transactions between citizens of same city state, very domestic rules,
particular to that geography, transaction
2) Jus Gentium- pertaining to transactions between non-citizens, applicable universally, not limited to geography.

- The term "civil law" is derived from the Latin words "jus civile," by which the Romans designated the laws that
only the Roman citizens or "cives" were originally privileged to enjoy. For the other people there was the "jus
gentium”

- In Roman Law, there was a lot of mercantilism. The governance system was structured in such a manner that
there was a particular set of laws which were applicable to all irrespective of which country the subject belonged
to. These sets of laws were of such importance and of general nature to human conscience itself that they were
supposed to be applied to everyone irrespective of the nation they belonged to as long as the dispute arose in
the Roman Court, This set of laws were the JUS GENTIUM.

- Certain Laws were specific to Rome itself and were applicable to Roman Citizens only and as far as non-roman
citizens were concerned these laws provided neither any rights nor any obligations. In short, they are not
applicable to non roman citizens and these laws are JUS CIVILE

So when this Roman Law influenced European Countries, it was this Jus Civile which was borrowed from the
Roman Law system and thus the term ‘civil’ came into tradition. Even contract law, certain aspects of property
law are examples of Jus Civile

1) Codification: In the civil law system, the law progressed along with the process of CODIFICATION. Rather
than relying on judicial decision per se for development of law, they had already adopted or borrowed the idea
of written law in civil law countries. So, there are various codes available to arrive at a particular decision

- basic principles of law in a civil law country will be found in an enactment, or a series of enactments, called a
code, whereas in the common law countries the basic principles have evolved through the decisions of the
courts
- much of the basis of English law emerged piecemeal over the centuries as and when suitable cases came
before the courts, rather than being formulated as a coherent whole.

Compared to the Common law system, the ROLE OF JUDICIARY in developing law is not so prominent in the civil law
system.

2) Legal Reasoning: An important implication was that codes had a wider ambit and generally were worded and
went on to make an important classification on the basis of the types of disputes that are brought before the
court. This resulted in the process of adjudication being completely reversed from the common law system. In
civil law, the courts first try to identify the general law principle and apply that to a set of facts. So, they
move from a general principle to a particular conclusion.
- But in common law countries because it was developing on a case to case basis so on the basis of
the particular set of facts and on the basis of the case they would identify the law/principle and apply it.
So here they are moving from a particular case to a general principle. First, they need to identify
whether case facts were similar to previous ones, they would identify these and figure out the material
facts and accordingly look into the application of the previous cases.
 - But in the civil law system they are driven by principle so the first step instead was to identify the
principle to be applied and apply it on a particular set of facts. So Courts largely used deductive
reasoning in civil law countries

3) Substantive and Procedural Rights: The 2nd implication was that when we talk about civil law countries, the
concept of substantive rights arose from legal principles available in the court. Anything which is related to enforcement
of rights or manner in which court is supposed to realise this right falls under the procedural law aspect.

So, in the civil law system the distinction between SUBSTANTIVE and PROCEDURAL law becomes much more clear.
‘WHAT the right is’ is dealt by substantive law and ‘ HOW the right is to be enforced’ is dealt by procedural law.

4) Right and Remedy: Another implication is that there is a distinction b/w Right and Remedy. Right is the matter
recognised by substantive principle and remedy is relief in aspect of right and it comes under procedural law. In
common law countries, there is no proper distinction b/w right and remedy or ‘pre-recognition’ of rights with the follow up
of remedy’ wasn’t very clear.
- So in civil law countries right in itself is arising from the set principles. But in common law countries, rights were
arising from the action itself.

5) Evolution: The civil law System was very well defined in the classification of legal systems from the beginning, but
common law developed over time. The civil law system made a sharp distinction between public law and private law.
That is the law where the state administration body is involved and the law which involves private individuals.

6) Interpretation: Whenever we have written down principles then the role of academic scholars or jurists increases. As
an interpreter, people will interpret it because of the need for academic expertise. So when similar countries, most of the
courts borrowed from Roman law so they were required more academicians two interpreted., understand its history.
Etcetera, and thus the role of jurists was more than that compared to common law countries. A lot of juris. They started
to write commentaries during that point of time.

7) Precedent:

- The most important difference between common and law is the degree of recognition given to decided cases. In
common law countries, the system rests on the principle of “stare decisis” which means adherence to decided
cases.The courts in India, England and other common law countries are not so much concerned with doing
justice to the parties in an individual case as with the following of precedent set by earlier decisions of a similar
case. Thus, in Common law countries an unwritten law and case which the judges have made and which are
found in different reports and digests is seen as binding as the statutory law.

- In civil law countries, the case law has no binding force and the judicial decisions binds neither the court that
established it, nor the lower court. Judicial decisions are not treated as law.
- In this system, judges don’t create rule of law, their function is only to decide disputes. Courts only apply a
statute or custom and in their absence, the decisions of the courts are based on the principles of equity, justice,
eason or traditions.

- Also civil law countries do not strictly follow the concept of Precedent. In civil law countries, the entire purpose
of the court is to find out what general principle is talking about and generally believe that either you are right or
wrong in interpretation. So the entire court’s interpretation is considered a unified decision of the court. This is
why the minority opinion was not written in civil law judgements. In common law countries, on the other hand,
they were more welcome in accepting minority opinion and writing it down.
 - So the precedent holds a PERSUASIVE value and not an AUTHORITATIVE value. Here it is more about the
discretion of the judges and court to follow a past case. Hence, we can’t say that judges don’t have a role to
play, they have but not as much as it was in the development of a law.

- However, despite a lack of a formal doctrine of stare decisis the concept of precedent is still informally
followed. The courts are free to disregard precedents however they do not do so without sufficient
reason. Even the attitude that the lower courts have toward the higher courts is kind of similar to the
common law system.

8) Codification: The principles of the court should be concise, covering all aspects and not to be precise, which is
clearly caught at that time. These principals have to be gentle and broad rather than narrow. Also, if principles are to be
broad, then there would be ambiguity in defining the ambit of the principle. Around the 16th to 17th century in addition to
such a broad code, they started making special legislation that wasn't that broad and had to be read with the court, so
they started moving from general to specific legislation. A general law versus specific law was there. So over-reliance
on general principle was done away with slowly.

3) The role of the judiciary became much more prominent in these years. They don't follow the principle of
precedent but started respecting the decision which is taken by the code in earlier cases. So strict application or
deductive reasoning was done away with so the future courts started giving preference to decisions taken by
earlier courts. This is known as the 'era of de codification' where they relied on rules rather than broad
principles. Also, a lot of issues would develop about conflict of laws because every other matter was referred to.

Eg- For example, let's assume that the ICA is general in comparison to sales of goods act and the transfer of
Property Act. The Insurance Act. All of these are specific ones. Now it is difficult to maintain coherence. So,
rather than changing the specific legislation, they reframe general principles or the code itself, which is ICA
here.

4) This made the Code much more dynamic and accommodating. In the 17th-century enlightenment began in
Europe. Where the role of the church and forming the code was severed or diminishing, and this also led to
change in the substantive content of legislation.

Lecture – 14th OCTOBER

In common law, judges had to develop a lot of procedures to make the codes and all systematic; they had standard of
proof; adjudication principle for it became – JUSTICE SHOULD SEEM TO BE DONE AND NOT JUST DONE;
transparency of the judges were important; judges had a role to ensure consistent

In civil law, they had to just find the law and not form procedures; judge would only focus on applying the law and not if
the justice is done – Procedure was not important; Legislator had a role to play in ensuring consistency
In common law – precedents were followed and hence judiciary had to maintain consistency
In civil law – No precedents were followed and hence the legislature had to make sure while framing the codes that
consistency is followed.

ADVERSARIAL form – common law system

INQUISITORIAL form – civil law system

In civil law, the lawyers are not adversaries of each other, but what matters is the outcome of the case. Curiosity about
the judgement matters and hence, INQUISITORIAL system.

In common law, the lawyers are more inclined towards winning the case by defeating and hence the ADVERSARIAL
system.

Types of Criminal Justice System

There are two main justice systems:

1. Adversary system
2. Inquisitorial system

According to Black’s Law Dictionary, “Adversary system is the court system where a judge decides on a case argued by
a prosecutor who is suing the plaintiff and the defence attorney who defends their plaintiff. A jury has also been used to
decide such cases.’’ “Inquisitorial system is, “proof taking used in civil law, whereby the judge conducts the trial,
determines what questions to ask, and defines the scope and extent of the inquiry’’.

COMPARISON OF THE INQUISITORIAL AND ADVERSARIAL SYSTEMS

1. The binding force of case laws: In the adversarial system, the earlier decisions by the higher courts are
considered to have a binding effect, but in the inquisitorial system, the precedents are not given that much
importance. The judges or jury give judgment independently using the relevant statutes, so much importance is
given to the code of law.

2. Investigation: In the adversarial system, the parties e.g., police and defence have a responsibility of bringing
evidence, whereas in the inquisitorial system the government officials (PP) collects the pieces of evidence, they
themselves can conduct the investigation or they may request the police to do so. PPs can instruct the police
about the priorities. In some inquisitorial systems, a judge may conduct the investigation. Oppositely in an
adversarial system judges do not play any role in the investigation.

3. Examining phase: There is nothing like an independent examination in adversarial system chief and
cross-examination is the part of trial only. In inquisitorial systems interrogation of witnesses and collection of
evidence is done by examining judge

4. Trial: There is a requirement of a counsel representing the state and another acting on behalf of the defendant
before the adjudicator. And the evidence in chief is taken and witnesses are cross-examined or re-examined. In
the inquisitorial system, record of evidence is already done in the examining phase, while there is no cross and
re-examination of witnesses, but witnesses are questioned and challenged.

5. Role of the trial Judge and counsel: The judge ensures that the due process of law is followed in the
courtroom and gives the decision. The counsel introduces evidence and questions witnesses in the adversarial
system. Whereas in the inquisitorial system the judge (or jury) directs the courtroom, proceedings and
interrogates the witnesses and also evaluates evidence to reach their decision.
 6. Use of juries: Juries are used in many cases in the adversarial system but in inquisitorial juries are used in
most serious cases.

7. Rules of evidence: In the adversarial system there is a strong categorization of admissible and inadmissible
evidence and hearsay evidence is more readily allowed if it is reliable. Rules relating to admissibility are more
lenient in the inquisitorial system. If the judge decides particular evidence as relevant, that is admitted. In many
inquisitorial systems, there is no hearsay rule at all

8. Rights of the defendant: In both the systems the defendant has the right to fair trial and self-incrimination.

9. Role of the victim: In the adversarial system, the victim is not a party in the trial the case represents against
the defendant on behalf of the state. In the inquisitorial system, the victim has the status of a party in the trial.

10. Organization of the courts: As the adversarial system is generally followed in common law countries, courts
have general jurisdiction to adjudicate and as the inquisitorial system is followed in civil law countries, there are
special courts to deal with constitutional law, criminal law, administrative law, commercial law, and civil or private
law.

CRITICISM OF ADVERSARIAL SYSTEM

- In this system, the lawyer has the duty to act zealously and faithfully for his client. Zealous, faithful advocacy
means the obligation to search out all favourable evidence, to seek, neutralize or destroy all unfavourable
evidence, and to press the most favourable interpretation of the law for his client.
- Sometimes protection of individual rights and a presumption of innocence and benefit of doubt leads to the
release of a criminal.
- Evidences are presented by parties, sometimes parties intentionally take a too long time to present them.
- The decision maker will hear only the evidences which the parties want to present because evidence gathering
and presentation is fully controlled by parties.
- Parties may bring fake witnesses to distort the truth. 6. Rules require advocacy and client loyalty which
undermines the search for truth.
- The police sometimes may not be able to find sufficient evidence against the accused. He cannot expect any
help from the accused. This leads to dropping-out of the case.

CRITICISM OF INQUISITORIAL SYSTEM

- Examining magistrate and judge both have unchecked power to investigate and adjudicate the case.
- When the court participates in the interrogation it may lead to a biased attitude.
- Privacy of the accused is denied.
- Prosecutor and police exceed or misuse their power because both have separate laws to deal with their
conduct.
- Parties are not able to call own expert.

ADMINISTRATIVE LAW
There was the development of administrative law. They had maintained a distinction between private and public law in
the civil law system. But the separation wasn't done at the institutional level, France started maintaining this distinction
between the courts, by resolving disputes between private parties and resolving disputes amongst administrative
bodies.

Codes in the last two lines meant institutions also. Also, this led to the distinction between administrative law and private
law. In the common law system, they didn't have a different hierarchy of courts for institutions and separate law was
created itself for administrative law.

Written down code – for civil law system however no precedent system

Droit Administratiff- set of laws applicable for those under the administrative sector

Administrative Law – especially in the FRENCH LEGAL SYSTEM

It has a separate set of laws + separate judicial system for administrative cases
Separate judiciary system - Conseil D’etat

Droit- means talented in French, Aristotelian concept – treating people differently with different law sets . Administrative
laws originate from this idea that certain sets of laws should be applied differently to those people under administrative
control than normal people.

Modern concept of administrative law – evolved but origin is in the French Legal System.

There is a distinction between the laws applicable to private individuals and administrative officials – to provide certain
benefits to the state officials.

In contemporary times however, the administrative tribunal now just acts as a check on the powers of the state officials
– it has now become a restriction rather than a privilege.

As far as administrative decisions are concerned, they felt that they should be immune from any part of interference
from the Court, and thus there is a need for a different system altogether in order to address these administrative issues
or administrative law related matters. And then they started developing a dual core system where on one hand they
have ordinary codes to determine jurisdiction between individuals. On the other hand, we have a different system
named administrative tribunals who's basic function is to deal with matters pertaining to administrative issues.

Even in India, there was a distinction between administrative tribunals and ordinary courts. It was based upon the idea
of separation of power, so there should be a clear cut distinction between executive and judiciary, and there should be
no encroachment. The concept of judicial review in its initial years was taken as a violation of the principle of separation
of powers.

15th October

Islamic system

In the 7th century Islamic system of law was introduced as the supremacy of law. It was not a form of a religious system,
but a system of governance. As and when the Arabian Peninsula expanded, the system also expanded.
2 forms of governance:

1) Related to rituals
2) Legal transactions

Legal transactions, firstly, commercial transactions are those having legal sanction in terms of legislation and don't have
a legislation per se but some rules. This means that in the beginning it didn't have Parliament. So there were jurists and
exports who identified what should be the rules of Islam jurists. Jurists were given a high amount of status in the society
with a touch of divine element. So there were neither judicial decisions nor code, so they were distinct from the common
and civil law system. They develop law through juristic writings.

Followed the Quran. Heavily dependent on it.

It is not the entirety of the Quran that is important for this, only certain parts are important for identifying legal
obligations. There were certain patterns, there were certain acts which were allowed and certain acts which were
prohibited. It also provides for punishments. All those matters where the Quran is explicit then it has to be followed, but
where it is silent then jurors came up with their own interpretation of what God's words would be on that matter.

However, the Quran in itself is not complete. There are certain obligations contained in the Qur'an but it does not mean
that all the obligations can be interpreted from the Quran. It in itself is not sufficient.

Apart from the revelations arising out of the Quran, the practices of the Prophet or practices prevalent at that time-
Hadith.

There might be a legal provision provided from the Quran. It might not be complete enough or it might be ambiguous,
therefore the practices will reveal how they are applicable for day to day practices.
If Quran does not state something, what was prevalent at the time of Prophet- how it was dealt with then becomes the
law-
Like the customary practices.

Quran + Sunnah( the customary practices and the sayings of prophet- practiced of community at that time)

Source for providing legal obligation which is otherwise not providing for the same.
Example- Two merchants entering into contract, the specificities might not be given in the Qur'an, but the practice
prevalent in the society will become relevant as a source of law to determine contract law.
Both the Quran and sunnah are helping to interpret the revelations of God himself.

The role of Jurists- it is not merely delegated to secondary level.

The jurists and scholars explain the law and provide for the system. The writings of the jurists and scholars are referred
to as the consensus of those who are learned in the law and were taken as a primary source in the learning of the
system and development of the system.- These are called IJMA. (Juristic Consensus)

Over the years, the scholars themselves started forming various rules of Islamic law following a particular form of
Islamic law. Bifurcation of Islamic laws.

In addition to all these sources- if there is something not provided for in the Qur'an, no juristic opinion, no prevalent
practice then they would create a law by creating an analogy of it.--- this is called QIYAS
Some matters, maybe so new, that neither text of Quran or practices of Sunnah can justify them. Also, there is no
consensus on them, so they read both Sunnah and Quran and try to find analogies and provide for the matter. This is
not a good use of conscience. This is the interpretation of revelation by creating an analogy.

According to the basis of a combination of different sources of law used by different schools were formed which can be
classified as Sunni and Shia.

16th October

In the common law system and civil system, there is no source of interpretation of sources. In religious systems like the
Islamic system, resources are classified on the basis of interpretation. But that was not the case with the common and
civil system, where sources were divided on the basis of the institutions that they were coming from.

There were various teachers who gave their own interpretations for the divine laws on the aspect of day to day living.

There were courts and judges came from several schools and the judgement was dependent upon from which school
that judge was coming from as he would develop an understanding of his master or jurist only. Therefore, personal
schools that each jurist belonged to. Hence arose conflict and issues on how to maintain a commonality and
consistency. Slowly, these personal schools were converted into doctrinal schools.
This personal teaching was converted into doctrinal schools and communitarian schools. They have first different
sources and thus depending upon the sources, personal teaching involved, and then school means a unified doctrinal
way of understanding a law. Such that each school prescribed its own way of reading the law eschool is identified by its
founders and the various sources of Lord used to interpret the law and accordingly they have different precepts and
doctrines.

For exams remember the additional sources of law and how the Islamic legal system differed from the Common and
Civil Law System

- Hanafi & Hanabli

Each school was basically formed by a leader who was a scholar. Hanafi laid more emphasis on Quran, and on
use of analogy while Hanbali School no importance was given to Qiyas

The Hanafi school: The founder was Abu Hanafi. He was more relegated to Egyptian development. The school focus.
More on Edge Ma. And customary practices. The matters that concerned the school could be diverse, ranging from
family laws to criminal laws. Whenever you read the law then first the Quran would be red in addition to it there are lot of
jurists who wrote down the ways of teaching of Prophet Muhammad and these writings were considered important for
various regulations of law on different matters.

➔ HINDU LEGAL SYSTEM

Sources of Hindu Law - There are various sources of the Hindu Law which are relevant to understand the texts - While
Hindu Law lacks the concept of “revelations” as under the Islamic Law, there is still an element of transcendental in the
form of the ideal concept of “dharma”

The sources may be divided into 4 categories;

a. Shruti - Lacking any sacred text per se, these include recitals covering a wide range of subjects – including day to
day transactions which create legal obligations. Shruti involved direct revolutions through sages. They were written
forms of direct Saints, the Shruti consistent with Vedas etc. Shruti meant whatever was heard and directly written down.
There was no human interpretation there. The claim is that whatever is written in Shruti is direct revelations and are not
interpretations. It is not analogous with the Quran because the Koran is a single book but Shruti is involving a number of
books. It is strict in nature.

b. Smriti - Rishis started writing from memory of their teachings. - These writings are known as Smritis. Smriti included
all those aspects which cannot be directly written by Sages, which were written in Smritis. Now Smriti's may also involve
some points which are not in Shruti. Shruti is written as the revolution of what it was, but Smriti's kind of indirect
recollection of what all stages interpreted and partially remembered. In terms of law development, Shruti and Smriti
were considered as ancient sources. So Smriti can be considered as an interpretation of Shruti.

c. Commentaries - As the Smritis and Shrutis are ancient texts, they were being interpreted through commentaries and
digests. - These interpretations functioned as a source in the development of Hindu Law. - These sources are not as
primary as smritis and shrutis. These were more modern in their outlook.

d. Customs - This refers to creation of legal obligations through daily practices. All these sources played a major role in
the development of Hindu Law. In the modern period these were incorporated into the legal systems through legislation.

For example, Section 5 of the Hindu Marriage Act deals with customary practices

Many scholars started interpreting the commentaries in their own way. Each had their own teaching and each
commentary had its own regions and regional courts started following them. This led to the development of two schools,
which were the Dayabhaga and Mitakshara.

Modern times we have various legislations concerning Hindu law like marriage, succession, adoption, et cetera, which
come under personal law. It gives a lot of room to local custom to govern the marriage. Now, Hindu law is not
fragmented as they have formulated codes for it. But this code is also open ended because of it all. Incorporates
different practices. This difference or diversity is limited by the overarching code or its purpose. Thus it is not as diverse
as it was in the initial years.

➔ RIGHTS IN REM AND RIGHTS IN PERSONAM

The terms are derived from the Roman terms "actio in rem" and "actio in personam”

The plaintiff claimed that a certain thing belonged to him and the me Ought to be restored or given to him. An actio in
personam was one the enforcement of an obligation. In such a case, the plaintiff claimed the payment of money, the
performance of a contract or the protection of some other personal right vested in him as against the defendant. The
right protected by an actio in rem came to be called jus in rem and a right protected by actio in personam came to be
called jus in personam. These terms were invented by the commentators of civil law and are not to be found in the
original sources.

Literally interpreted, jus in rem means a right against or in respect of a thing. Jus in personam means a right against or
in respect of a per- son. As a matter of fact, every right is at the same time one in respect of something and against
some person. Every right involves not only a real but also a personal relation.

Although the two relations exist together, their relative importance is not the same. In real rights, it is the relation to the
thing which is very important. In the case of personal rights, it is the relation to other persons who owe the duties which
is important. Real rights are usually derived from some special relation to the object but personal rights are derived from
special relation to the individual or individuals under the duty. A right in rem is available against the whole world but
a right in personam is available against a particular individual only. A right in rem is available against persons
generally.

Examples are rights of ownership and possession. My right of possession and ownership is protected by law against all
those who may interfere with the same.

A right in personam corresponds to a duty imposed upon determinate persons. Rights under a contract are rights in
personam as the parties to the contract alone are bound by it. The right of a creditor against a debtor is a right in
personam. The same is the case with the right of a landlord to recover rent from a tenant. However, my right to
reputation is a right in rem. I have a right to prosecute all those who dare to libel me.

Rights in rem are almost always negative. Those are rights to be left alone. Rights in personam are usually
positive and negative only in exceptional cases. This is so in the case of sale of goodwill when the seller promises
not to set up a rival business within a particular locality and tor a specific period. The right of the purchaser is both
negative and in personam. He acquires the right of exemption from competition from the seller

Rights in personam usually arise out of contracts but a contract alone is not the sole source of personal rights. It is
possible to have rights against a definite individual independently of any agreement with him. One may have the right to
receive compensation from a wrongdoer for the breach of a duty imposed upon him by law and not contract. Such a
right is a personal right arising independently of contract. The rights which arise out of status are also rights in
personam They are not of so definite a character as to be reducible to a money value. The rights and duties which arise
out of coverture or by membership of a family consist often in a lifelong course of conduct and do not always have an
economic significance.

In this respect, they differ from rights in personam that arise out of a contract.
Rights in personam are usually positive rights which correspond to positive duties undertaken by a determined person.

Class notes-
18th October

Issue of Fact and Issue of Law

PRELIMINARY UNDERSTANDING

Issue of Law- The issues which have predetermined laws

Issue of Fact- The issues which do not have a predetermined answer.

For instance:

Whether X murdered Y, whether he took up knife to murder- Issue of Fact

Whether he is liable for murder- Issue of Law
What requirements for him to be liable for murder- issue of law
Whether the murder committed at 8 P.M. or at 9 P.M- issue of Fact.

There can be times when the issue can be of law but we do not have the correct interpretation of law and an already
present answer for the same.

For instance:

1) Kesavananda Bharati- interpretational issues.

2) A driver driving at a speed of 70 km/hr. Law states reasonable speed.

Whether or not he was travelling at 70 Km/Hr - issue of Fact Whether or not that speed is reasonable or unreasonable-
issue of Law which is undecided and is at the discretion of court.

3) Reasonable- such as under article 19. What is reasonable is not predetermined and that is left at the discretion of the
court to decide.

4) Offence of murder. The punishment by law can be in the form of death penalty or life imprisonment. The court has
discretion to decide. This decision is also a matter of law and not fact. Issues rose before the court which did not have a
predetermined answer but were matters of law and not of fact. Therefore, the above distinction does not stand.
Therefore, these distinctions have to be further refined.

Refined distinction b/w Issue of law and Issue of Fact.

Matters which are to be answered with evidence – question of fact

EXAMPLE – whether driving at speed – meter is evidence – these matters are relegated to the jury. Lower courts like
trial courts with original jurisdiction deal with these questions – evidence has been presented.

Sometimes matters of evidences can turn to matters having predetermined laws –

EXAMPLE - precedents when they become binding;
Legal fiction – deeming provision – it doesn’t matter which feature you take into consideration, the law says something
is, so it is – So, a matter which otherwise seems to be requiring evidence, law provides that it is a matter of law by
fictionalizing it.

Example can be - • company declared to be a legal entity by a legislation irrespective of what a physical feature says it
to be because its legal colour says that it is a legal entity so even if feature says it needs an evidence, legality says it
doesn’t – cannot be challenged

Wife died within first 7 years of marriage – presumed to be dowry death – matter of fiction as logic dictates just because
wife died in 7 years, not necessary to be dowry death, can be another accident also – but law presumes it to be due to
dowry – law converted a matter that otherwise required evidence into one which doesn’t – can be challenged

Offence by a child below 7 years – he will not be penalized – intention part is not taken into consideration – might be
true for many children – that is they might have an intention scientifically – legal fiction and this cannot be challenged –
so if a 6-year child commits murder, no penalty – so even if this logically requires evidence, law fictionalized it by saying
it doesn’t require evidences And for matters there can be no evidences – question of law or matters of discretion –
EXAMPLE – whether speed is reasonable or not – cannot be answered with evidence. HCs take up matter as appeals
under appellate jurisdiction only when evidence is presented but can take up matters of fact also when appeal is there
regarding fact as the appellant is not satisfied or new evidence comes up otherwise, they take up cases only when trial
courts have already looked into evidences

Matters of discretion – can be taken up in an appeal – no predetermined answers – there is need of law to keep with
evolution of society – so legislation provides general ideas and rest left on court – times when law required to be flexible
-matters of discretion can become those which have predetermined answers or sometimes matters of predetermined
law can turn into those of discretion When the matter comes first time – matter of fact and discretion and when court has
provided an answer for it – it becomes answered – now when new case comes up regarding similar matters and facts
and laws have developed – courts already have an answer – now a matter of less discretion – matter of discretion
turned into one with predetermined answer

1. Question of Law
= matter with predetermined legal answer

2. Question of Fact
= matter lacking predetermined legal answer and requiring explicit evidences

3. Matter of discretion
= matter lacking predetermined legal answer but not requiring explicit evidences

4. Role of precedents and judicial decisions reduces the discretion available by turning matter of facts into matters of
law

5. Legal fiction
19th October

LEGAL FICTIONS DISTINGUISHED FROM PRESUMPTIONS

Fictions are “false” statements with a utilitarian content and serve specific purposes harnessed to the growth or
development or interpretation of law. They should be distinguished from presumptions which are either conclusive or
rebuttable in as much as the latter may possibly be true while the former is invariably false.

Honourable Supreme Court in the case of Bhuwalka Steel Industries limited and another V. Union of India and others
held that: “One must understand the distinction between a legal fiction and the presumption of a fact.

Legal fiction assumes the existence of a fact which may not really exist. However, a presumption of a fact depends on
satisfaction of certain circumstances.”

And thus, held that Section 112 of the Indian Evidence Act does not create a legal fiction but provides for presumption.

According to Fuller, “A distinction commonly taken between the fiction and the legal presumption runs something as
follows: a fiction assumes something which is known to be false; a presumption (whether conclusive or rebuttable)
assumes something which may possibly be true. This distinction is regarded as being reinforced, as it were, in the case
of the rebuttable presumption because such a presumption assumes a fact which probably is true.”

One of the examples distinguishing legal fiction and presumption is under Indian Penal Code wherein ignorance of law
is not an excuse is a legal fiction and a child below the age of 7 years being incapable of committing an offence under
section 82 is a presumption of law.
Rebuttable and Irrebuttable Presumption

Presumptions

= Inference of 1 fact from another is presumption.

- Example
A. Child under the age of 7 (age leads to presumption of innocence)
B. Dowry Death (marriage and passage of marriage leads to presumption of guilt and shifting of burden)

- Such presumptions are legal presumptions.

- Presumption does not require linking / establishing connection of facts - they are inferred.

- These inferences remove the requirement of having additional facts at each stage.

- Presumption may be rebuttable (jaise dowry death - presumption of guilt) or non rebuttable (7 year old child -
doli incapax).

- Presumption of "innocent until proven guilty" leads to requiring positive assertion to determine guilt in order
to break from the neutrality of status quo.

20th October
Public and Private Law

It is not possible for us to make strict compartmentalizations

Public law and private law are two wide areas of law that sometimes tend to overlap when exercised. Public law is the
body of law which governs the exercise of powers of the government and public authorities. (subject of law is the state)

Under Private Law the state is not a party to the law, it’s involved in its making but the law regulates activities of
individuals not the state.

Thus, the main difference between public and private law is that the private law governs relationships among citizens,
and the public law governs the relationship between individuals and the state.

Aims
Public Law: Public Law aims to protect the public interest.
Private Law: Private Law seeks to protect only private interests.

Sanctions
Public Law: Penal sanctions are more severe; for example, sanctions exacted for criminal activity include fines,
imprisonment or death.
Private Law: Sanctions usually include the payment of damages by the defendant to the plaintiff;sometimes injunctions
or specific performance are granted.

Affected Parties
Public Law: The main parties involved here are the individuals and the state.
Private Law: The main parties involved are the private entities or organizations acting in the private capacity.

Responsibilities
Public Law: This branch of law is responsible for regulating a harmonious relation between the citizens and the state.
Private Law: This branch of law is responsible for regulating the activities between two or more private entities in a just
and fair manner.

Governing Area
Public law: This branch of tries to ensure the public interest of the general population.
Private law: This branch of law tries to secure private interests/freedom of the individuals in the community.

Overall Content
Public law: Public law defines the powers and obligations of the state and establishes the rights and duties of the
relationship among the individuals and the governments.
Private law: Private law characterizes the rights and obligations of people and private bodies, in their relationship among
the either.

Murkier differences:

- Criminal Law- state is a participant while enforcing the law, wrongs are not just against the individual but the
society too
 - Contract with the State- state can perform both public and private functions in its capacity as a state

For eg - entering into a private contract

Differences can not only lie on whether the state is participating or not we need to dig deeper, the focus should be on
the kind of rights emanating from state action- publicness and privateness

The two divisions of public law are Constitutional Law and Administrative Law. It is impossible, however, to draw any
rigid line between these two, for they differ merely in the degree of importance pertaining to their subject-matters.
Constitutional law deals with the structure, powers, and functions of the supreme power in the state, together with those
of all the more important of the subordinate departments of government. Administrative law, on the other hand,. ' is
concerned with the multitudinous forms and instruments in and through which the lower ranges of governmental activity
manifest themselves.

Eg of Taxes enforced by State and Payment under Contract

- Taxation is not voluntary but entering into a contract is voluntary

- Taxation is not mutual, Payment enforced under contract act can be mutual

Distinctions between public administration and private action

Activities such as traffic control, fire-protection services, policing, smoke abatement, the construction or repair of
highways, the provision of currency, town and country planning, and the collection of customs and excise duties are
usually carried out by governments, whose executive organs are assumed to represent the collective will of the
community and to be acting for the common good. It is for this reason that they are given powers not normally conferred
on private persons.

They may be authorized to infringe citizens’ property rights and restrict their freedom of action in many different ways,
ranging from the quarantining of infectious persons to the instituting of criminal proceedings for nonpayment of taxes. To
take another example, the postal laws of many countries favour the post office at the expense of the customer in a way
unknown where common carriers are concerned. Again, a public authority involved in slum clearance or housing
construction tends to be in a much stronger legal position than a private developer.

The result of the distinction between public administration and private action is that administrative law is quite different
from private law regulating the actions, interests, and obligations of private persons. Civil servants do not generally
serve under a contract of employment but have a special status.

Taxes are not debts, nor are they governed by the law relating to the recovery of debts by private persons. In addition,
relations between one executive organ and another, and between an executive organ and the public, are usually
regulated by compulsory or permissive powers conferred upon the executive organs by the legislature.
The law regulating the internal aspects of administration (e.g., relations between the government and its officials, a local
authority and its committees, or a central department and a local authority) differs from that covering external relations
(those between the administration and private persons or interests). In practice, internal and external aspects are often
linked, and legal provisions of both kinds exist side by side in the same statute. Thus, a law dealing with education may
modify the administrative organization of the education service and also regulate the relations between parents and the
school authorities.

Another distinction exists between a command addressed by legislation to the citizen, requiring him to act or to refrain
from acting in a certain way, and a direction addressed to the administrative authorities. When an administrative act
takes the form of an unconditional command addressed to the citizen, a fine or penalty is usually attached for failure to
comply. In some countries the enforcement is entrusted to the criminal courts, which can review the administrative act;
in others the administrative act itself must be challenged in an administrative court

Difference between family law and public intl law

In family for eg succession you do not consent to the transaction, but still it will be considered private law and not public

2 differences covered:

1st model: participation of the state (participants involved- private or state)

2nd model: volition and autonomy

21st October

- 3rd Model: Governed by predetermined state policy is Public law while private isnt

Eg- family law governed by practices of individuals, Private law is always subject to Public consideration and
interests

- Implication- affects the interpretation of law: state or public law is strictly interpreted while private law which is
meant for regulation of individuals and based on their volition can be less strictly interpreted
Territoriality of Law-

The territory thus appropriated to a single legal system is not necessarily identical with the territory of the state whose
legal system it is. The same state may have many systems of law, each of which possesses for itself a distinct territory
within the state's dominions. England and Scotland are not two states, but they are two territories for the application of
different laws. Nor is the territory of a legal system necessarily identical with the territory subject to the jurisdiction of the
court or set of courts by which that system is administered. The same court may have jurisdiction over many territories,
each of which is governed by a different law

Applicability of law is not only dependent on territory but also subject matter of law, the privilege of law may or may not
be taken by people within a territory

- Enforcement works territoriality but application doesn't

Eg- Hindu Marriage Act will apply only to hindu’s

Extradition Treaties made so as to make it easier now to apply law beyond strict territories

All modern and civilised systems of law are thus determined in their application by reference to territorial areas of
jurisdiction. Law so determined is said to be territorial. It is the law of the land to which it is so confined and so
applicable. English law is the law of England, and French law is the law of France. Earlier times, however, show us a
very different con- ception of the application and jurisdiction of a legal system. Law is then conceived as personal rather
than as territorial. It is not the law of a particular territory, but that of a particular body of persons—those, namely, who
are united together by a common citizenship or nationality.

22nd october

In what other ways can law be limited except for territorial jurisdiction? How do we define the scope of law in this sense

Territoriality of enforcement of law

- Only the state power aspect of it
-
Territoriality of application of law

- How should be interpreted

- Who will be subjects
- Who should it be applied to

1. Law will be applicable to everyone regardless of origin-citizens and non citizens if act happen within territory of
india unless this differentiation is made explicitly

2. It can also be on basis of where the act has an effect/impact on- competition act eg

- Section 32 of comp act, even if act itself happens outside india but it has effect within in india
- Extraterritorial application of law

3. Law applies only on basis of satisfaction of a personal characteristic of a person eg- Hindu Marriage Act applies
to Hindus

Personal and Territorial Aspects of application of law can coexist, eg Hindu Marriage Act will apply firstly within a
territory and then on specific people within a territory

Courts will only apply provisions of Indian Legal system

But there are cases where the Indian Legal system itself allows for the reference to foreign law
25th october

Intl laws can be applied in india too

Who are competent to contract.—Every person is competent to contract who is of the age of majority according to the
law to which he is subject , and who is of sound mind and is not disqualified from contracting by any law to which he is
subject.

Under section 11 to understand majority age of a us citizen the court will look into provisions of us majority law but its
only for reference- what is being applied is actually still the contract act

The legal system is the same, it's the contract act which allows us to refer to us law on this issue

Question of fact- whether indian court has referred to the foreign law correctly or not
Question of law- whether indian contract applies or not

Territoriality of law

1.Territoriality of application of law - How law is interpreted and to whom it is applicable

To whom will it be applicable- various ways in which this can be done.
Can be done territoriality. Extent of India, to everyone within India- even non citizens except when distinction is made in
the legislation.
Contract law - a contract made in India, application of Indian Contract Act.
Application of law can be dependent not where it happens but where it has an effect on.Where the effect or
consequences of the law was.
Competition act example- Section 32 of Competition act. If an act has happened outside India, in Australia. It went on to
have an effect of competition within India. Act outside but effect within India.
This is called Extra judicial territoriality of law.
Application can be also on the basis of personal characteristics such as Hindu Marriage act. In addition to the territorial
aspect the application of law can also be defined on the basis of personal characteristics. The driving factor of law is
those characteristics.
One legislation can give both territorial and characteristics provisions. There is a provision in Hindu Act which shows
both. Both aspects have to be read conjointly.

2.Territoriality of enforcement of law- state mechanism or police power of it, political power.

Matter of private international law or conflict of law.

When the court applies the law, not enforce it. The courts will apply the laws of the legal system of which it is a court.
There are certain cases where provisions allow the court to refer to other legal systems( interpretation of this provision
is an issue of law) but that reference is not an issue of law but an issue of fact.

Example:
section 11 of ICA- competence of contract
1) majority
2) not of unsound mind
3) not disqualified by law
Every legal system can have their own ways of deciding Majority
Indian- indian majority act- applicable upon indian citizens
If not Indian then the same will not be applicable. It will be decided by the provision of the legal system of his country.
USA has its own infant act.
Contract act does not provide a specific age of majority.

It allows for the court to refer to the provision of a separate territory altogether.
Eg: if both parties are not indian, then the Indian majority act is not applicable for both parties.
One is Indian, one is US and a contract has been entered in India.
For Indian citizen 18 is the age , for US citizen the courts will apply a particular provision of the US system to determine
majority

Application of law- which law and what extent.

General rule says- the court of the legal system has to apply the rules of that legal system itself. Indian courts will apply
Indian legal rules.
In certain circumstances, the court can apply a legal provision of another legal system. Referred above
When a foreign element is involved, a situation may arise where the application of a different legal system is made by
the court.

Two questions
1) Whether the Indian court have interpreted the Indian law correctly or not - Issue of law
2) Whether the court has interpreted the US provision correctly or not- Issue of Fact
Reasoning-
- interpretation within the facts of the provision provided under section 11.
- normally when the provision of another legal system it cannot have a binding value as the Indian legal system. It is not
interpreting it the same way as it interprets the Indian legal system but in a factual way.
It is in the process of reading Indian rule, it is reading the American system- so factual?:/

Legal Reasoning

1. Deductive reasoning starts with the assertion of a general rule and proceeds from there to a guaranteed specific
conclusion. Deductive reasoning moves from the general rule to the specific application: In deductive reasoning,
if the original assertions are true, then the conclusion must also be true.

2. Inductive reasoning begins with observations that are specific and limited in scope, and proceeds to a
generalized conclusion that is likely, but not certain, in light of accumulated evidence. You could say that
inductive reasoning moves from the specific to the general.

3. Abductive reasoning typically begins with an incomplete set of observations and proceeds to the likeliest
possible explanation for the set. Abductive reasoning yields the kind of daily decision-making that does its best
with the information at hand, which often is incomplete.
Three types or areas of legal reasoning discussed next in this Idea:
1. rule-based reasoning
2. evidence evaluation
3. second-order reasoning about the decision-making process

Rule Based Reasoning

A primary strategy for deciding similar cases similarly is to develop and apply substantive legal rules, which prescribe
particular outcomes for particular types of cases. The substantive rules of law state the conditions under which
particular types of governmental action are justified. Formal logic represents such rules as "conditional propositions."' 18
A "proposition" is the descriptive content of an assertion or statement. It is capable of being either true or false, and is
usually expressed in ordinary language by a sentence or a clause.

26th October

LEGAL REASONING:

1) The legal provisions will enable(contracts) or prohibit (IPC) a particular action. There is always an aspect of action
oriented application of law. It will always be orientated towards a particular kind of action. The application is not done in
isolation. It is applied in a particular context within which a number of actions are allowed, enabled or prohibited. It
makes the law very practical.
Therefore first the action will be taken into consideration, then law will be applied.
2) When any form of reasoning or logic is applied- there is a purpose- whether the conclusion that has been arrived at
is correct or not- aspect of finding out the truth- which will be better if the method of finding truth is based on reasoning.

Law is unique- it is not only concerned about only the truth. There are a number of non epistemic policy goals that have
to be ascertained such as principles of Natural justice, fairness, public health. A balance always have to be maintained
between epistemic (truth finding principles) and non epistemic (natural justice etc). These non epistemic concerns also
have to be taken into consideration.

We cannot prove everything to be 100 % true – it is impractical to reach the ideal state – so we apply a limitation of
beyond reasonable doubt – by proving beyond reasonable doubt, things are taken to be so even if we did not reach
100 % surety - uses limited resources to reach the most practical outcome possible.
In traditional reasoning All these three unique features make law practical and more applicable.

Format of Laws
Certain conditions – consequences to follow or not to follow if conditions are fulfilled.
E.g., Section 10 of the ICA – what is a contract?
Consequence – agreements are contracts if 3 conditions are fulfilled – they can be worded as IF and THEN/ Conditional
format.
Why conditional format? – CONDITIONAL PROPOSITIONS
Most of the legal sections are worded in a condition – consequence format which would tell us which all set of facts
would give a similar consequence – we won’t have different consequences for similar facts – a sort of uniformity in a set
of similar facts – similar conditions in a similar way + differentiate between different conditions.
26th October-
Topic: Legal Reasoning- VernRWalkerDiscoveringthe (1).pdf

court has to always balance between epistemic and non-epistemic rules:

Epistemic- truth seeking. E.g.: whether X murdered Y

Non-epistemic- not truth seeking but facilitate (means) to seek truth. E.g.: Fairness of the judgement.

There are 3 possibilities: true (conditions are fulfilled, thus true) / false (conditions are not fulfilled, thus false) /
undecided (pata nahi whether conditions are fulfilled or no)
- A matter is always brought up and introduced with an undecided case.
- Depending on which presumption is applied (e.g.: innocent until proven guilty), which side has to prove will be
decided.
- Thus, some kind of presumption is always needed to begin a case.
- Every legal rule can be pictured in the downward tree shape.

1st November
brewer-1996-analogy.pdf
Page: 945-956

2 major forms of reasoning- Deductive & Inductive

Deductive- begins from general proposition- will give accurate conclusion all times – 100% truth- but cannot be used
every time
• Relevance: important to understand what is similar or dissimilar in facts, cases etc. before giving a reasoning/
conclusion.
o It is necessary to understand which aspect is to be considered as relevant fact.
o E.g.: Under Art 12- whether the State funding or functionality test or the non- monetary authority of the State is
to be considered a relevant fact for the ratio can get tricky.
• Inductive- opposite of Deductive- takes pieces of information – creates cause & effect relation between two or
more phenomenon that on observation seem related to each other
o Chicken example- classical conditioning
Induction - chicken example; chicken hears a bell and is then fed food.
Inductive generalization- since event 1 led to event 2 x number of times in the past, therefore Event 1 would
lead to Event 2 in the future as well. Chicken hears a bell, bell means food.
Inductive Analogy - since event 1 led to event 2 x number of times in the past, therefore Event 1 would lead to
Event 2 in the particular instance as well. Chicken hears a bell, bell would mean food.
• Legal rule is not ONLY inductively applied.
o In Inductive, the majority of facts help arrive at what can be concluded/ not concluded.
o If 90% facts are similar does not mean that rule can be applied since none of those 90% facts may be
applicable to the case. Rather the 10% would be pertinent.
o Similarity as a tool to consider facts that are relevant/ irrelevant.
o However, there is no strict one- method of reasoning used. Both are used.
By arguing, we are helping create a right analogy (examples) between the events and present a conclusion on
what is relevant/ irrelevant.
What is an analogy; How to determine the correct /incorrect analogy cannot be answered purely in deductive or
inductive sense.
2nd November
Page: 963-967
• Analogy - using relevant facts to determine the similarities between two different situations.
o Steamboat and innkeeper- analogy used to find similarity/ dissimilarity.
X, y, z – page 966
Steam boat/Railway/Hotel comparison.
Hotel - has certain characteristic X because of which the hotel owner can be held liable if something is stolen
from a person's room.
Steam Boat - Shares the X characteristic, and also has Y characteristic which is that steam boat is a
locomotive.
Railway Coach - does not share the X characteristic, but shares the Y characteristics. Here, the railway owner
will not be liable if something gets stolen from a person's coach.
• Application of analogy used in Ejusdem generis- ‘of the same kind’
o E.g.: apples, watermelon and others. It is assumed then that ‘others’ belongs to the same class as apple and
watermelon i.e. fruit. Thus, analogy applied between apple/watermelon & fruit, others & fruit.
• Art 12- ejusdem generis NOT applied for word ‘other’.
• Abduction - giving probable reasons for the presence of certain events
o since fire causes smoke, therefore the smoke is because of fire. ( here, the validity of the argument is not as
strong as that of a deductive argument wherein if the premises are valid we can be sure that the conclusion will be valid
too)

3rd November

•In a legal judgement every case will have a certain set of facts. The first and the foremost thing the court tries to do is it
tries to understand the context in which the set of facts can be appreciated and they look for various other examples. So
they try to siff through various case laws to understand the case better. This is very similar to the process of abduction.

If there is any doubt or ambiguity , more often than not the court will try to understand the context and for that they apply
abduction process.
• When court looks through examples and comes at a principle by abduction, after that deduction is used on the
principle to apply on the present case.
8th November
Informal Fallacies in Legal Argumentation (1).pdf
Page: 344-349 & 353- 355
• Statement which is untrue is a fallacy. They may make sense prima facie but when you go in depth, they may
not make sense.
• Error can be of 2 types:
o Formal – error in not following principle of coming to logic
o Informal - error that does not violate any principle/ rule but does not make sense.
E.g.: attacking the arguer rather than argument.
o Often the fallacies are informal.
• Argumentum Ad hominem
o attacking the arguer rather than argument.
o In some cases, it is a fallacy, in some it is not.
For insuring credibility of information, the person’s personality/ using ad hominem is questioned. E.g.: X person
is a liar and betrayer, thus, what he is saying may also most probably be false. Y has always been helpful, kind and
honest, thus, what he says can most probably be true with not bad intention.
• Argument ad Vericundiam
o Validity of statement should not be dependent on authority from where it is coming.
E.g.: assurance that what we are taught in legal methods cannot be justified by saying that we are taught by a
legal method teacher so the information is correct. There can be a circumstance that the teacher may give wrong
information.
o Though sometimes it may be valid. E.g.: when we back information with credibility of expert knowledge of a
person like Dr. Anthony Fauci said xyz on Covid. The General Secretary of WHO declared abc may help authenticate
the information.
Thus, the court may consider the argument in some cases because it is coming from an authority, expertise of a
body and not consider it as a fallacious reasoning.
E.g.: SC judgment having impact on HC due to its authority.

• Ignorentio Elenchi (strawman)

o Attacking the argument without addressing the main issue.
o Like beating about the bush.
E.g.: argument is on demonetization affecting black money. Counter argument on people troubled is a strawman
reasoning because it is not addressing black money which is the main topic under discussion.
9th November
Page 355- 359
• Post hoc ergo proctor hoc
o False cause fallacy- non causa pro causa
o Faltu ka two events ko link karna bina matlab
o Mere timing cannot be considered as cause of an effect
Isacken case
Bradshaw case – Court accepted the reasoning

• Argumentum ad Antiquitam
o the fallacy that holds that determinations and customs of our fathers and forebears must not be changed
o an argument cannot be presented with the reason that just because our forefathers practiced it/ said so, the
argument should be considered.
o These arguments help understand the past legislature functioning or drafters intention.
o A historical background may help make legal arguments unlike its day to day usage.
o However, this has to be used cautiously, majorly in cases where the text is ambiguous shall the past
background be referred to.

• Hasty Generalization
o Fallacy of over generalization

• Non- sequitor (not following from given premise)

o Argument does not follow from the premise that we began with.
o If p true then q true. We CANNOT SAY if p false then q false (CLAT sufficient reasoning – box method)
o Above statement would be a non- sequitor
Since there can be other reasons for q to be true
We CAN say that is q false then p false
o Harry Levitch case- page 379
Just because will says that if there is an exclusion – ‘will’ will be admissible we CANNOT SAY that because
exclusion is not there- ‘will’ will not be admissible.
 If p- q, not p-not q principle applied above which Court refused

• If p the q, we CANNOT ALSO SAY that if q is true, then p is true

o Wright v Royse- page 380