17. S K Vermam&AfzalWani, Legal Research and Methodology, Indian Law Institute, 2nd edn.

,
1st Reprint 2006

18. S.R. Myneni, Legal Systems in the World, Asia Law House, 1st edn., 2007

19. Sharon Hanson, Legal Method and Reasoning, Cavendish Publishing Ltd., 2nd edn, 2003

20. Steven J Burton, An Introduction to Law and Legal Reasoning, Wolters Kluwer Publishers
Co., 1st edn., 2007.

21. Sukumar Roy, Alternative Dispute Resolution, Eastern Law House, 1st edn., 2012

22. T. K. Sinha, Textbook on Legal Methods, Legal Systems and Research, 1st Edition, 2010,
Universal Law Publishing Co. Ltd.

23. V D Mahajan, Jurisprudence and Legal Theory, Eastern Book Co., 5th edn., Reprint 2010

24. William Glanville, Learning the Law, 15th edn. Sweet and Maxwell, 2011.

UNIT-1
LAW-MEANING AND DEFINITION
Learning Objective: On completion of this Unit, students will be able to have a
conceptual understand on the meaning of law and to distinguish between the different
types of laws.

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Topics:
1. Meaning and Classifications of law.
2. Function of law.
3. Classifications of law.
4. Public and private laws
5. Substantive and procedural law.

Meaning and classification of laws:

Law is the cement of the society and an essential medium of change. Various
legal theorist has tried to define the concept of “Law”, every theorist has
attempted to define the concept from different perception. However, a group
of thoughts and perceptions could be classified under one category, which
gives rise to a common thought in a theory, though individually every theory
would differ from the other one. The theorist could be classified in variety of
ways, for the sake of convenience. The theories of law could be broadly into
five categories, i.e., Natural law theory, Positivist Theory, Sociological theory,
Realist theory and Critical law school theory.

Natural law theory:

In jurisprudence, the term means those rules and principles which are
considered to be have emanated from some supreme source other than any
political and worldly authority. Natural law theory has a history of reaching
back centuries BC, and the vigour with which it flourishes notwithstanding
periodic eclipse, especially in 19th century, is indicative, of its validity.

Different ways, how Natural laws has been applied:

1. Ideals which guide legal development and administration.

2. A basic moral quality in law which prevents a total separation of the “is”
from the “ought”.
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.

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5. The conditions sine quibus non for the existence of law.

The idea that in reality law consists of rules in accordance with reason and
nature has formed the basis of a variety of natural theories ranging from
classical times to the present day. The central notion is that there exist objective
moral principles which depend on the essential nature of the universe and
which can be discovered by natural reason and that ordinary human law is only
truly law in so far as it conforms to these principles. These principles of justice
and morality constitute the natural law which is valid of necessity, because the
rules for human conduct are logically connected with truths concerning human
nature. This connection ascertains the principles of natural law by reason and
common sense, and in this the natural law differs from rules of ordinary human
law (positive law) which can be found only by reference to legal sources such
as constitutions, codes, statutes, and so on. But since law can only be true law
if it is obligatory, and since law contrary to the principles of natural law cannot
be obligatory, a human law at variance with natural law is not really law at all,
but merely an abuse or violation.

Natural law theory by St. Aquinas’s Theory:

St. Thomas Aquinas’s theory has to be understood in its background put in

short as follows. Firstly, his theory is an outcome of the need for stability in a
world emerging out of dark ages. Secondly, there was a need for church to
establish its supremacy over the State in their conflict which each other. Lastly,
there was a need for Christendom to unite. Aquinas’s theory tried to
accomplish all these needs through his theory as under. He defines law as “An
ordinance of reason for the common good, made by Him who has the care of
the community, and promulgated” In light of this definition he has classified
law into four categories i.e. Lex-Aterna, Lex- Naturalis, Lex- Divina, and Lex-
Humana, which means Eternal Law, Natural Law, Divine Law and Human
made law respectively. He believes that though man can to a greater extent
control his own destiny, he too is subject to certain basic impulses, which can
be perceived by observing human nature. These impulses are firstly, at the
basic level impulse towards self- preservation, secondly, impulses to reproduce
species and rear children, these two are shared with other creatures by the man.
Lastly, the impulse to improve and progress which is unique to human kind.
Hence, according to St. Thomas Aquinas human nature itself is a means to
achieve certain ends that are pre-decided by the nature. This relation between
the means and ends could only have originated in the reason of some Super
human legislator. This according to Aquinas is Eternal Law. In other words,

11
‘the eternal law is nothing else than the plan of divine wisdom considered as
directing all the acts and motions’. However, man has a capacity to act contrary
to eternal law owing to the free and rational nature of man. Therefore, Aquinas
believes that this eternal law needs to be promulgated or emanated to the man.
This promulgation of eternal law to man is called Natural law. Thus Natural
Law is ‘nothing else but a participation of the eternal law in a national creature.
‘Further in addition to eternal and natural law exists ‘Divine Law’ which is
revealed through scriptures. And lastly, there is human law which has to
conform to reason and thus to the law of God. Thus St. Thomas Aquinas’s
theory propounds that laws are arranged in a hierarchy where the human made
laws are based on scriptures and in return these enshrine in them the principles
of Natural Law, which in turn are derived from the Eternal Law. Thus,
following examples could depict the application of the theory- Article 21 of the
Indian Constitution is an example of Human- made law, which could be said
to have based on the sacrosanct of Life and respect for mankind as stated in
various Scriptures, which in turn depicts the divine revelations of almighty,
which is derived from the Eternal Law.

Positivist theory:

The start of the nineteenth century might be taken as marking the beginning of
the positivist movement. It represented a reaction against the a priori methods
of thinking that characterised the preceding age. Prevailing theories of natural
law shared the feature of turning away from the realities of actual law in order
to discover in nature or reasons principle of universal validity. Actual laws
were then explained or condemned according to these canons. Scrutiny of
natural law postulates had damaging results for they were shown to be without
foundation or else the products of extrapolation.
The term ‘positivism’ has many meaning whish were tabulated by professor
Hart as follows:
1. Laws are commands.
2. The analysis of legal concepts is,
a. Worth pursuing
b. Distinct from sociological and historical inquiries
c. Distinct from critical evaluation
d. Decisions from critical evaluation.
3. Decisions can be deduced logically from pre-determined rules without
recourse to social aims, policy or morality.
4. Moral judgements cannot be established or defended by ration
argument, evidence or proof.

12
 5. The law as it is actually laid down, positum, has to be kept separate from
the law that ought to be.

Jeremy Bentham – Bentham was an advocate of codified law and reformation of

English law, which according to him was in utter chaos. He believed that law should
be reformed from time to time, however, in order to reform it should have a form in
first place, this form according to him could be given by codification, and that analysis
of structure of law was very important before reforming any law. Hence he set himself
on a task of defining the structure of law. He defined law as “An assemblage of signs,
declarative of a volition, conceived or adopted by the sovereign in a state, concerning
the conduct to be observed in a certain case by a certain person or a class of persons,
who in the case in question are or are supposed to be subject to his power” Hence
Bentham’s concept of law is imperative one, for which he prefers using the term
mandate. Having defined the law, he further expressed the structure of law, he stated
that every law may be considered in eight different respects, which is as follows:

Source – According to Bentham the source of law is the will of the sovereign, who may
conceive laws which he personally issues, or adopt laws previously issued by the
former sovereign. He defines sovereign as “Any person or assemblage of persons to
whose will a whole political community are no matter on what account supposed to
be in a disposition to pay obedience and that in preference of any other person”. For
e.g. Origin of all the legislations in India is sourced in the assemblage of persons called
Legislature.

Subjects – Bentham states that every law has subjects which could be broadly classified
as persons or things which he calls them as agible or passible. For e.g. Subject matter
of Sale of Goods Act is moveable goods which are passible things whereas subject
matter of constitution of India is the citizens and authorities in India who are agible
persons.

Objects – according to Bentham every law has an object which is act-situation i.e. an
act or forbearance e.g. a law may expect positively performing something or
forbearing from doing something, thus if a person wants to enter in to a contract he
has to act in accordance with the essential laid down in Indian Contract Act. On the
other hand, the Act forbears the parties from entering into void contract.

Extent – Every law in opinion of Bentham has an extent of its application which could
again be broadly divided as direct extent and indirect extent. Direct extent means that
a law covers a portion of land; indirect extent refers to relation of an actor to a thing
in terms of time of act, duration etc. e.g. direct extent of Indian Penal Code states that
it is applicable to whole of India except state of Jammu and Kashmir, whereas indirect
extent is Indian Penal Code covers acts of offences only.

13
Aspects- Bentham states that every law has decided (obligative) and undecided
(unobligative) aspects. The decided aspects are mandatory directives of the law. These
are further divided as commands which are positive directives and prohibition which
are negative directives. Thus, law of taxation is an example of command whereas law
of crimes is an example of prohibition. Undecided aspects are further divided as non
-commands and non- prohibitions e.g. laws in the form of non- prohibition give a
permission to do something whereas non commands give a permission not to do
something. Thus the provision of income tax which permits to donate an amount to
charity and claim exemption from tax is an example non prohibition, because it is not
mandatory for a person to donate, but if he wishes he has permission to do so and
which is not prohibited. On the other hand, a person aggrieved of civil trespass may
file a suit against the trespasser or may not, thus it an example of non -command
where the person has a permission to not to file a suit against the trespasser, which is
not so in case of the criminal trespass.

Force of law- Bentham believes that the law is dependent upon motivations for
obedience. This motivation according to him is a force of law. Which could be
sanctional or incitative, hence punishment for commission of an offence is a sanction
whereas leave on payroll to an inmate is incitative for being a law abiding citizen.

Remedial appendages – According to Bentham every law has remedial appendages,

which refers to creation of remedies or to the judges who are expected to cure the evil
or preventing future evil e.g. consumer protection act having dealt with the above
mentioned aspects lastly creates remedial appendage in the form of creation of
consumer forums.

Expression – Lastly every law must be expressed completely i.e. the law should be
complete in its expression, connection and design. E.g. Indian Penal Code defines and
expresses the concept of crime in one place exhaustively.

John Austin – Austin’s method – Analytical – The method, which Austin applied, is
called analytical method and he confined his field of study only to the positive law.
Therefore, the school founded by him is called by various names, - ‘analytical’,
‘positivism’, ‘analytical positivism’. Some have objected to all the three terms. They
say that the word ‘Positivism’ was started by Auguste Comte to indicate a particular
method of study. Though this positivism, later on, prepared the way for the 19th
century legal thought, it does not convey exactly the same sense at both the places.
Therefore, the word ‘positivism’ alone will not give a complete idea of Austin’s school.
In the same way analysis also did not remain confined only to this school, therefore,
it alone cannot give a separate identity to the school. ‘Analytical positivism’ too may
create confusion. Austin’s theory could be divided into two parts for convenience of
understanding it as – Austin’s conception of Law and His method. Austin’s

14
Conception of Law – He defined law as “A rule laid down for the guidance of an
intelligent being by an intelligent being having power over him” Thus he divided law
into two broad categories- Laws Properly so called which are in the form of commands
and carry a material sanctions and Laws improperly so called are the laws without a
command and do not carry a sanctions. The former are followed by people they being
the commands and carrying sanctions, whereas the latter are also generally followed
by though there exists no sanction. He further classifies the Laws properly so called
as, Laws of God set by God for men and Secondly Human laws set by men for men.
Human Laws are divided into two classes as – Positive Laws – These laws according
to him are the laws set by political superiors as such, or by men not acting as political
superiors but acting in pursuance of legal rights conferred by political superiors. Only
these laws are the proper subject- matter of jurisprudence. E.g. All the legislations in
India are example of Positive Laws Other Laws – These are the laws which are not set
by political superiors or by men in pursuance of legal rights, but by other category of
men in some other capacity other than political. E.g. the code of conduct of a family
or a community custom fall under the category of laws set by men for men not in
capacity of political superiors. These laws Austin also calls them Positive Morality.
The Laws improperly so called are the rules in the form of opinions or sentiments of
an indeterminate body of men, as laws of fashion or honour. Austin places
International Law under this class. In the same way there are certain other rules which
are called laws metaphorically. They too are laws improperly so called. (the chart in
the Power Point presentation is explanatory) Law is a Command – Austin states that
only the positive laws are the proper subject – matter of study of jurisprudence. “The
matter of jurisprudence is positive law- laws strictly so called – or laws set by political
superiors to political inferiors” Hence he says jurisprudence is the general science of
positive law. The characteristics of laws properly so called are stated by Austin as
under- Law is a command of the sovereign – Command implies duty and sanctions –
Laws properly so called are species of commands. But being a command, every law
properly so called flows from a determinate source, or emanated from a determinate
author. In other words, the author from whom it proceeds is a determinate rational
being, or a determinate body, or aggregate of rational beings. For whenever a
command is expressed or intimated, one party signifies a wish that another shall do
or forbear; and the latter is obnoxious to an evil which the former intends to inflict in
case the wish be disregarded. But every signification of a wish made by a single
individual, or made by a body of individuals as a body or collective whole, involves
the same supposition. The power and purpose inflict penalty for disobedience are the
very essence of a command. The person liable to the evil or penalty is under the duty
to obey it. The evil or penalty for disobedience is called sanction. Command, duty
and sanction are, therefore, inseparably connected terms; that each embraces the same
ideas as the others, though each denotes those ideas in a peculiar order or series. Only

15
General Commands are laws- However, according to Austin, all the commands are
not laws, it is only the general command, which obliges to a course of conduct is law.
Exceptions to the above characteristics- These general commands, as defined above
are the proper subject of matter of jurisprudence. But according to Austin, there are
three kinds of laws which, though not commands, are still within the province of
Jurisprudence which are –

1. Declaratory or Explanatory Laws- Austin does not regard these as commands,

because they are passed only to explain laws already in force.

2. Laws to repeal laws- These too are not commands but are rather the revocation of a
command.

3. Laws of imperfect obligations- these laws have not sanctions attached to them, still
they are laws.

Hence, it could be concluded that Austin’s conception of law has no place for notions
as justice or morality. The basis of laws is the power of the superior and not the ethics
or the principles. Austin stands at par with absolutists like Hobbes, while stating laws
as commands of sovereign.

H.L.A. Hart – A very comprehensive reformulation of analytical positivism has been

done by Hart in his ‘Concept of Law’ His theory on the one hand builds on its own
and on the other hand makes important modifications to the theories of other
positivists like Austin and Kelsen. “Two aspects of Hart’s analysis of the concept of
law are of special importance, in the first place, he bridges the age old conflict between
the theories of law emphasising recognition and social obedience as the essential
characteristic of a legal norm, and those that see the distinctive characteristic of law in
the correlated elements of authority, command, and sanction.” The former approach
is that of the Savigny, Ehrlich and others. The latter is that of Austin, Kelsen and their
followers. Primary rules of obligation and secondary rules of recognition - Social
acceptance predominates in primitive societies and organised authority predominates
in more developed societies. This distinction is expressed in terms of contrast between
primary rules of obligation and secondary rule of recognition. Primary rule give way
to secondary rules - “Both historically and logically, the primary rules of obligation
generally give way to secondary rules, in which the forms of recognition, change and
adjudication are systematised, usually through the centralisation of authority, the
articulation of definite procedures for the making, application and execution of law,
and a system of official sanction.” Conditions necessary for the existence of a legal
system – Hart says that for the existence of a legal system, two minimum conditions
are necessary: “There are therefore two minimum conditions necessary and sufficient
for the existence of a legal system. On the one hand, those rules of behaviour which
are valid according to the system’s ultimate criteria of validity must be generally

16
obeyed, and on the other hand, its rules of recognition specifying the criteria of legal
validity and its rules of change and adjudication must be effectively accepted as
common public standards of official behaviour by its officials. The first condition is
the only one which private citizens need satisfy: they may obey each ‘for his part only’
and from any motive whatever; though in a healthy society they will in fact often
accept these rules as common standards of behaviour and acknowledge an obligation
to obey them, or even trace this obligation to a more general obligation to respect the
constitution. The second condition must also be satisfied by the officials of the system.
They must regard these as common standards of official behaviour and appraise
critically their own and each other’s deviations as lapses. Of course it is also true that
besides these there will be many primary rules which apply to officials in their merely
personal capacity which they need only obey.”

SOCIOLOGICAL SCHOOL

Roscoe Pound: He concentrates on the functional aspect of law – Pound is considered

to be the ‘American leader’ in the field of sociological jurisprudence. It is in the
writings of Roscoe Pound that the most influential exposition of the American
sociological viewpoint is to be found. He comes from Harvard Law School and has a
great academic favour. He is the most systematic writer on sociological jurisprudence.
Pound concentrates more on the functional aspect of law, that is why some writers
name his approach as ‘functional school’. For Pound, the law is an ordering of conduct
so as to make the goods of existence and the means of satisfying claims go round as
far as possible with the least friction and waste. According to him, the end of law
should be to satisfy a maximum of wants with a minimum of friction. The task of law
is ‘social engineering’ - Pound’s main thesis is that the task of law is ‘social
engineering’. He says: - “For the purpose of understanding the law of today, I am
content with a picture of satisfying as much of the whole body of human wants as we
may with the leas sacrifice. I am content to think of law as a social institution to satisfy
social wants, the claims and demands involved in the existence of civilized society –
by giving effect to as much as we may with least sacrifice, so far as such wants may be
satisfied or such claims given effect to by an ordering of human conduct through
politically organised society. For the present purpose I am content to see in legal
history the record of a continually wider recognising and satisfying of human wants
or claims or desires through social control; a more embracing and more effective
securing of social interests; a continually more complete and effective elimination of
waste and precluding of friction in human enjoyment of the goods of existence – in
short, a continually more efficacious social engineering.” ‘Social engineering’ means
a balance between the competing interests in society: The jurist must work with a plan
– By ‘social engineering’ Pound means a balance between the competing interests in

17
society. He entrusts the jurist with a commission. He should ’study the actual social
effects of legal institution and legal doctrines, study the means of making legal rules
effective, sociological study in preparation of law-making, study of judicial method, a
sociological legal history and the importance of reasonable and just solutions of
individual’s cases’. He thinks it to be the duty of the jurist to classify and expatiate
upon the interests to be protected by law. He himself enumerates the various interests
which are to be protected by law. He classifies them under three heads: Private
interests, Public interests and Social interest. Private, Public and Social interests – The
private interests to be protected by the law are: (a) the individual’s interests of
personality: These includes his physical integrity, reputation, freedom of volition and
freedom of conscience. They are safeguarded by the Criminal Law, Law of Tort, Law
of Contracts and by limitation upon the power of Government to interface in the
matter of belief and opinion, (b) Individual’s interests in domestic relations: These
include marriage, relations of husband and wife, parents and children, and claims to
maintenance, (c) Interests of substance: These includes proprietary rights, inheritance
and testamentary succession, and occupational freedom. The principal public interests
are: (a) Interests in the preservation of the State as such, and (b) Interests of the State
as the guardian of the social interests. The social interests deserving legal protection
are : (a) Interest in the preservation of peace and order and maintaining general
security, (b) Interest in preserving social institutions like marriage and religious
institutions, (c) Interest in preserving general morals by counteracting corruption,
discouraging gambling and invalidating transactions repugnant to current morality,
(d) Interest in conserving social resources, (e) Interest in general progress which is to
be achieved by freedom of education, freedom of speech and expressions, freedom of
property, trade, and commerce, and (f) Interest in the promotion of human
personality.

THE REALIST SCHOOL

A branch of sociological approach; They concentrate on decisions; Law only on

official action – Roscoe Pound has defined ‘realism’ as: “Fidelity to nature, accurate
recording of things as they are, as contrasted with things as they are imagined to be,
or wished to be or as one feels they ought to be.” Llewellyn says that realism is not a
school of jurisprudence. At the best it may be called a branch of sociological
jurisprudence. That is why sometimes it is called the ‘left wing of the functional
school.’ It differs from the sociological school in this respect that it is little concerned

18
with the ends of law. It concentrates on a scientific observation of law in its making
and working. This movement is named as ‘realist’ because this approach studies law
as it is in actual working and its effects. They reject the traditional definition of law
that it is a body of rules and principles that courts enforce. They avoid any dogmatic
formulation and concentrate on the decisions given by the courts. The decisions are
not based only on formal law but also on the ‘human factor’ in the judge and the
lawyer. According to them, law is only an official action, and therefore, the forces that
influence a judge in reaching a decision (including bribery and corruption) are within
the field of study. Origin of the Thought Holmes and Gray – Two great jurists in
whom the germs of the realist approach have been traced are Gray and O.W. Homes.
Gray defined law as “what the judges declare”. He emphasized the fact that the
personality and the personal views of a judge play an important role in decisions. He
prepared the grounds for a more sceptical approach which proceeded to point out
with greater emphasis the importance of non-logical factors in decisions. Holmes put
the thing in a more concrete form. O. W. Holmes stated that to ‘tell it as it really is’, or
to find the ‘truth’ of law, we must look at ‘law in action’, as opposed to the doctrinal
analysis of ‘law in books’. A passage from an address by him also cited to present his
views in this respect.

“Take the fundamental question what constitutes the law… You will find some text
writers telling you that it is a system of reason, that it is a deduction from principles
of ethics or admitted actions, or what not, which may or may not coincide with the
decision. But if we take the view of our friend, the badman, we shall find that he does
not care two straws for the action of deduction, but that he does want to know what
Massachusetts or English courts are likely to do in fact. I am much of his mind. The
prophesies of what the courts will do in fact, and nothing more pretentious are what
is mean by the law.”

It is submitted that Holmes never meant what has been interpreted from the above
passage. If the whole address from which the above passage is cited is read, it appears
that he emphasised the “study of laws as a rational system based on history.” For him,
“the theory is the most important part of the dogma of law,” and, therefore, he stresses
the need for a legal theory. Though the law does not operate with mathematical
accuracy, there are certain principles on which it normally proceeds. Holmes never
seems to have adhered to the view contained in the above passage but later writers of
Realist movement made this isolated passage as their basic text. Characteristics of
Realistic movement Following are some important points stated by Llewellyn as
characteristics of this movement:

There is no realist school, realism means a movement in thought and

work about law.

19
 Realism means a conception of law in flux and as a means to social ends,
so that any part is to be examined for its purpose and effect. It implies a
concept of society which changes faster than the law.

Realism assumes a temporary divorce of the ‘is’ and ‘ought’ for purposes
of study. This means that the ethical purposes which according to the
observer, should underline the law, are ignored and are not allowed to
blur the vision of the observer.

Realism distrusts traditional legal rules and concepts in so far as they

purport to describe what either courts or people are actually doing. In
view of the definition of rules (as “generalised predictions of what the
court will do”) realism groups cases and legal situations into narrower
categories than was the practice in the past.

Realism insists on the evaluation of any part of the law in terms of its
effect.

The Function and Purpose of law: Justice, Stability and Good Conscience:
Generally speaking, the function and purpose of law is to ensure Justice, stability and
good conscience.

Aquinas and Salmond have claimed justice as the goal of law. According to Aquinas
following Augustine, an unjust law is no law while to Salmond, law is those principles
applied by the state in the administration of justice. Justice can be used in a wider or
a more restricted sense. In the wide sense, such as is used by Aquinas in his contention
that an unjust law is no law, justice appears to be roughly synonymous with morality.
In the narrower sense, as in the expressions, “court of justice”, “natural justice” and
“denial of justice”, The term refers to but one area of morality.

“Justice” has this narrower sense can be seen by examining the converse concept that
of injustice.

E.g.; Father picks on one child and makes a favourite of another is an unjust parent.

An examiner who for personal reasons and not on their merit, marks certain
candidates more leniently or harshly than the rest, is an unfair examiner.

For justice consists precisely in not singling persons out for special treatment in the
absence of significant differences, but in treating like cases alike and meting out fair
and equal treatment to all.

Justice operates at two different level: Distributive justice and corrective justice.

20
Distributive justice: It works to ensure a fair division of social benefits and burden
among the member of the community. Distributive justice then serves to secure a
balance or equilibrium among the members of the society.

This balance, however, can be upset.

E.g.: Suppose one citizen, X, is prevented by another. Now, the balance is upset
because, Y, has deprived X of a right that should be equally enjoyed by all. At this
point “corrective justice.” Will move in to correct the disequilibrium by forcing “Y”
to make “X” some compensation.

Justice, then, in its distributive aspect serves to secure, and in its corrective aspect to
redress, the balance of benefits and burdens in the society.

But fair and equal dispensation of justice demands more than equality, it requires that
all be equal before law. It means that the legal rights which each person has should be
given equal protection by the court.

E.g. Where certain categories of persons, such as minors and lunatics, lack certain
rights, all are not legally equal; but, in so far as the rights possessed by each citizen are
equally respected by the courts, to this extent all are equal before the law.

Justice at this level provide an equitable division between the actual members of the
society.

Next functions and purpose of law is to maintain law and order, maintain social
control, resolve conflicts, to bring orderly change through law and social reform.

Classification of law:
There are several ways of classifying law and the idea of classification of law is not
new. Even in ancient civilizations, the jurists were well aware of the difference
between civil and criminal laws. However, with the passage of time, many new
branches have come into existence and therefore, the old classification has become
outdated. Law can be classified in many ways with respect to time and place.
However, law may be broadly divided into the following two classes in terms of its
usage:

i. International Law
ii. Municipal Law

International law is an important branch of law. It deals with those rules and
regulations of nation which are recognized and are binding upon each other through
reciprocity. Many jurists however, do not give much importance to this branch. In
recent times, this branch of law has grown manifold and has acquired increasing
importance on account of globalization and other related factors.

21
 I. International law:
International law has been further classified as follows:

Public International law:

This branch of law relates to the body of rules and regulations which governs the
relationship between nations. Countries mutually recognise these sets of rules which
are binding on them in their transactions on a reciprocal basis.

Private International law:

Private international law is that part of law of the State, which deals with cases having
a foreign element. Private international law relates to the rights of private citizens of
different countries. Marriages and adoption of individuals belonging to different
nations fall within its domain.

II. MUNICIPAL LAW

Municipal laws are basically domestic or national laws. They regulate the relationship
between the State and its citizen and determines the relationship among citizens.
Municipal law can be further classified into two segments:

Public law:
Public law chiefly regulates the relationship between the State and its' subjects. It also
provides the structure and functioning of the organs of States. The three important
branches of public law are the following:

(a) Constitutional Law: Constitutional law is considered to be the basic as well as the
supreme law of the country. The nature of any State is basically determined by its
Constitution. It also provides the structure of the government. All the organs of states
derive their powers from the Constitution. Some countries, such as India, have a
written Constitution, while countries such as the United Kingdom have an 'uncodified
Constitution'. In India, the fundamental rights are granted and protected under the
Constitution.

(b) Administrative Law: Administrative law mainly deals with the powers and
functions of administrative authorities - government departments, authorities, bodies
etc. It deals with the extent of powers held by the administrative bodies and the
mechanism whereby their actions can be controlled. It also provides for legal remedies
in case of any violation of the rights of the people.

(c) Criminal Law: Criminal law generally deals with acts which are prohibited by law
and defines the prohibited act as an offence. It also prescribes punishments for

22
criminal offences. Criminal law is very important for maintaining order in the society,
and for maintaining peace. It is considered a part of public law, as crime is not only
against the individual but against the whole society. Indian Penal Code, 1860 (also
known as IPC) is an example of a criminal law legislation, in which different kinds of
offences are defined and punishments prescribed.

Private law:
This branch of law defines, regulates, governs and enforces relationships between
individuals and associations and corporations. In other words, this branch of law
deals with the definition, regulation and enforcement of mutual rights and duties of
individuals. The state intervenes through its judicial organs (e.g. courts) to settle the
dispute between the parties. Private or Civil law confers civil rights which are
administered and adjudicated by civil courts. Much of the life of a society is regulated
by this set of private laws or civil rights. This branch of law can be further classified
into the following:

(a) Personal Law: It is a branch of law related to marriage, divorce and succession
(inheritance). These laws are based on religion, ritual and customs of marriage,
divorce, and inheritance. In such matters, people are mostly governed by the Personal
laws laid down by their religions. For example, the marriage of Hindus is governed
by Personal laws like the Hindu Marriage Act, 1955 while Muslim marriages are
governed by the Muslim personal law based on a Muslim customary law which is
largely uncodified.

(b) Property Law: This branch of law deals with the ownership of immovable and
movable properties. For example, the Transfer of Property Act, 1882, deals with
transfer of immovable property, whereas the Sales of Goods Act, 1930, deals with
movable property.

(c) Law of Obligations: This branch of the law pertains to an area where a person is
required to do something because of his promise, contract or law. It puts an obligation
on the person to perform certain actions which generally arise as a consequence of an
enforceable promise or agreement. If someone violates his promise, that promise may
be enforced in a court of law. According to the Indian Contract Act, 1872, a contract is
an agreement which is enforceable by law. In other words, contract is an agreement
with specific terms between two or more persons in which there is a promise to do
something in lieu of a valuable profit which is known as consideration.

For example, ‘A' has offered his mobile phone to 'B' for Rs. 15,000. 'B' agreed to
purchase the same. This has created a legal relationship" both have made a promise
which is enforceable by law.

23
Law of Torts: Tort is a civil wrong. This branch of law creates and provides remedies
for civil wrongs that do not arise out of contractual duties. A tort deals with negligence
cases as well as intentional wrongs which cause harm. An aggrieved person may use
Law of Tort to claim damages from someone who has caused the wrong or legal injury
to him/ her. Torts cover intentional acts and accidents.

For instance, if 'A' throws a stone and it hits another person namely 'B' on the head,
'B' may sue 'A" for the injury caused by the accident.

Substantive and procedural law:

Substantive laws are “the part of the law that creates, defines, and regulates the rights,
duties, and powers of parties.” Substantive laws govern people and organizations in
their daily interactions—they are the “laws” that non-lawyers usually think of when
they think about what law is. For example, the substantive law of torts says an
uninvited guest cannot intrude upon another person’s land; the substantive law of
estates governs the formalities necessary to draft a “will”; and the substantive law of
crime lays definitions of different kinds of offences and the punishments prescribed
for them.

However, a different set of laws, which we call procedural law, governs what happens
when a party challenges that will or corporate formation in court. In other words,
procedural laws are the door to litigation. They set forth “the rules that prescribe the
steps for having a right or duty judicially enforced, as opposed to the law that defines
the specific rights or duties themselves. It may be easier to think of procedural laws as
the “rules” that govern litigation—the rules the parties must follow as they bring their
case and the rules for the courts’ administration. These rules proscribe such things as
who gets to bring cases, which courts those cases are brought before, how the cases
proceed through the judicial process, the rules of proof, the available remedies, and
the manner in which the judgment is enforced. Procedural law is created either by the
legislature, by the judiciary, or by a combination of the two. Procedural laws have
three major purposes.

The classification, provided is not an exhaustive and conclusive one. It is just an

attempt to develop a basic understanding of the classification of law. With the passage
of time, many new branches of law have emerged and there is always scope for
revising and classifying laws based on the new developments in the field of law.

24
Answer the following questions:
Q1. Describe briefly the natural law theory. How is it different from the positivist
theory?

25
Q2. Explain the functional aspect of law as propounded by Roscoe Pound.

26
Q3. Elaborate on functions and purposes of law.

27
Q.4. Can morals be the basis of law? Explain citing cases.

28
Tick the correct option:
1. Bentham’s philosophy was based on:

a. Utilitarian individualism

b. Utilitarian socialism

c. Utilitarian communalism

d. Utilitarian fundamentalism.

29
2. Laws set by political inferior to political superior to political inferior are:

a. Positive law

b. Negative law

c. Law by analogy

d. Law of metaphor.

3. Which of the following statements are true, about Austin’s concept?

1. All commands are law

2. Only general commands are law

3. Every command is law which imposes a duty enforced by sanction

4. Sovereign command does not imply duty and sanction.

a. 1,2,3

b. 2,3

c. 1,2,3,4

d. 1,2,3,4

4. According to Bentham law as:

a. “A rule laid down for the guidance of an intelligent being by an

intelligent being having power over him”

b. “Laws of God set by God for men and Secondly Human laws set by men
for men.”

c. “Command of the sovereign”

d. “what the judges declare?”

e. “Will of the Sovereign.”

5. According to pound the talk of law is:

a. Social solidarity

b. Social engineering

c. Social commitment

d. Social utilitarian

e. All of the above

30
6. Social engineering means:

a. Satisfaction of maximum wants with least friction and least waste

b. Satisfaction of maximum wants

c. The way for going least friction and less waste

d. Satisfaction of wants which are more valuable.

7. Match the following:

(a) Sociological school 1. Roscoe Pound

(b) Historical school 2. Savigny

(c) Philosophical School 3. Kant

(d) Analytical school 4. Austin

a. (a,1), (b,2), (c,3), (d,4)

b. (a,4), (b,3), (c,2), (d,1)

c. (a,3), (b,2), (c,1), (d,4)

d. (a,4), (b,1), (c,2), (d,3)

8. Three important branches of public law are:

a. Constitution law, administrative law, criminal law

b. Law of torts, criminal law, civil law.

c. Administrative law, contract law, property law

d. Corporate law, criminal law, civil law.

9. “Justice” is:

a. Function of law

b. Both function and purpose of law

c. Goal of law

d. Goal of law, according to Salmond

e. Only B is correct

f. B&D is correct

10. [A] promised [B], a grand big mansion, if [B] succeed in killing [A]’s wife.

31
 Above example is:

I. an agreement.

II. an agreement, since consideration is involved.

III. This is a contract under Indian Contract Act.

IV. According to the Indian Contract Act, 1872, a contract is an agreement

which is enforceable by law.

V. This is not a contract and IV is the correct explanation for it.

VI. Both I and V are correct.

Remarks
_______________________________________________________________

32
33
 Marks Awarded

UNIT-2
SOURCES OF LAW

Learning Outcome: On completion of this Unit students will be able to tell the
different sources of law and their relationship inter se.

1.Meaning;

34
2.Primary and Secondary sources;
3.Custom;
4.Precedent- Categories of precedents,
5.dissenting and concurring opinion,
6.overruling of judgments,
7.Article 141 of the Constitution;
8.stare decisis,
9.Ratio decidendi- Tests to determine ratio decidendi, obiter dictum;
10.Legislations,
11.Juristic writings; Justice, Equity and Good Conscience,
12.International law as a source of Municipal Law.

Meaning and Introduction

To have a clear and complete understanding of law, it is essential to understand the

sources of law. Sources of law mean the sources from where law or the binding rules
of human conduct originate. In other words, law is derived from sources. Jurists
have different views on the origin and sources of law, as they have regarding the
definition of law. As the term 'law' has several meanings, legal experts approach the
sources of law from various angles.

For instance, Austin considers sovereign as the source of law while Savigny and
Henry Maine consider custom as the most important source of law. Natural law
school considers nature and human reason as the source of law, while theologians
consider the religious scripts as sources of law. Although there are various claims
and counter claims regarding the sources of law, it is true that in almost all societies,
law has been derived from similar sources.

Classification of sources:

Salmond, an English Jurist, has classified sources of law into the following
categories:

Formal Sources of Law: These are the sources from which law derives its force and
validity. A law enacted by the State or Sovereign falls into this category.

35
Material Sources of Law: It refers to the material of law. In simple words, it is all
about the matter from where the laws are derived. Customs fall in this category of
law.

However, if we look around and examine the contemporary legal systems, it may be
seen that most legal systems are based on legislations. At the same time, it is equally
true that sometimes customs play a significant role in the legal system of a country.
In some of the legal systems, court decisions are binding as law.

Therefore, we may say that, three major sources of law can be identified in any
modern society are as follows:

i. Custom
ii. Judicial precedent
iii. Legislation

Custom
A custom, to be valid, must be observed continuously for a very long time without
any interruption. Further, a practice must be supported not only for a very long time,
but it must also be supported by the opinion of the general public and morality.
However, every custom need not become law. For example, the Hindu Marriages Act,
1955 prohibits marriages which are within the prohibited degrees of relationship.
However, the Act still permits marriages within the prohibited degree of relationship
if there is a proven custom within a certain community.

Custom can simply be explained as those long established practices or unwritten rules
which have acquired binding or obligatory character.

In ancient societies, custom was considered as one of the most important sources of
law; In fact, it was considered as the real source of law. With the passage of time and
the advent of modern civilization, the importance of custom as a source of law
diminished and other sources such as judicial precedents and legislation gained
importance.

Can Custom be law?

There is no doubt about the fact that custom is an important source of law. Broadly,
there are two views which prevail in this regard on whether custom is law. Jurists
such as Austin opposed custom as law because it did not originate from the will of the
sovereign. Jurists like Savigny consider custom as the main source of law. According

36
to him the real source of law is the will of the people and not the will of the sovereign.
The will of the people has always been reflected in the custom and traditions of the
society. Custom is hence a main source of law. Saptapadi is an example of customs as
a source of law. It is the most important rite of a Hindu marriage ceremony. The word,
Saptapadi means "Seven steps". After tying the Mangalsutra, the newly-wed couple
take seven steps around the holy fire, which is called Saptapadi.

The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu
Marriage Act, 1955.

Kinds of custom:
Customs can be broadly divided into two classes:

i. Customs without sanction: These kinds of customs are non-obligatory in

nature and are followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are
enforced by the State.
These customs may further be divided into the following categories:

(a) Legal Custom: Legal custom is a custom whose authority is absolute; it

possesses the force of law. It is recognized and enforced by the courts. Legal
custom may be further classified into the following two types:

• General Customs: These types of customs prevail throughout the

territory of the State.
• Local Customs: Local customs are applicable to a part of the State, or a
particular region of the country.

(b) Conventional Customs: Conventional customs are binding on the parties to an

agreement. When two or more persons enter into an agreement related to a
trade, it is presumed in law that they make the contract in accordance with
established convention or usage of that trade. For instance, an agreement
between landlord and tenant regarding the payment of the rent will be
governed by convention prevailing in this regard.

All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law. These
tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in
existence for a long time, even beyond human memory. In England, the

37
 year 1189 i.e. the reign of Richard I King of England has been fixed for
the determination of validity of customs. However, in India there is no
such time limit for deciding the antiquity of the customs. The only
condition is that those should have been in practice since time
immemorial.

Continuous: A custom to be valid should have been in continuous

practice. It must have been enjoyed without any kind of interruption.
Long intervals and disrupted practice of a custom raise doubts about the
validity of the same.

Exercised as a matter of right: Custom must be enjoyed openly and with

the knowledge of the community. It should not have been practised
secretly. A custom must be proved to be a matter of right. A mere
doubtful exercise of a right is not sufficient to a claim as a valid custom.

Reasonableness: A custom must conform to the norms of justice and

public utility. A custom, to be valid, should be based on rationality and
reason. If a custom is likely to cause more inconvenience and mischief
than convenience, such a custom will not be valid.

Morality: A custom which is immoral or opposed to public policy cannot

be a valid custom. Courts have declared many customs as invalid as they
were practised for immoral purpose or were opposed to public policy.
Bombay High Court in the case of Mathura Naikon v. Esu Naekin,
((1880) ILR 4 Bom 545) held that, the custom of adopting a girl for
immoral purposes is illegal. Status with regard to: In any modern State,
when a new legislation is enacted, it is generally preferred to the custom.
Therefore, it is imperative that a custom must not be opposed or
contrary to legislation. Many customs have been abrogated by laws
enacted by the legislative bodies in India. For instance, the customary
practice of child marriage has been declared as an offence. Similarly,
adoption laws have been changed by legislation in India.

Importance of custom as a source of law in India:

Custom was the most important source of law in ancient India. Even the British
initially adopted the policy of non-intervention in personal matters of Hindus
and Muslims. The British courts, in particular, the Privy Council, in cases such
as Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922 PC 59) observed and

38
underlined the importance of custom in moulding the law. At the same time, it
is important to note that customs were not uniform or universal throughout the
country. Some regions of the country had their own customs and usages.
These variances in customs were also considered a hindrance in the integration
of various communities of the country. During our freedom struggle, there
were parallel movements for social reform in the country. Social reformers
raised many issues related to women and children such as widow re-marriage
and child marriage.
After independence and the enactment of the Constitution, the Indian
Parliament took many steps and abrogated many old customary practices by
some progressive legislation. Hindu personal laws were codified and the
Hindu Marriage Act, 1955 and the Hindu Adoption Act, 1955, were adopted.
The Constitution of India provided a positive environment for these social
changes. After independence, the importance of custom has definitely
diminished as a source of law and judicial precedent, and legislation has gained
a more significant place. A large part of Indian law, especially personal laws,
however, are still governed by the customs. Hindu Personal Laws that have
been codified are as follows:

Hindu Personal Laws:

Hindu Marriage Act, 1955

Hindu Succession Act, 1956,
Hindu Minority and Guardianship Act. 1956
Hindu Adoptions and Maintenance Act, 1956

JUDICIAL PRECEDENT AS A SOURCE OF LAW:

In simple words, judicial precedent refers to previously decided judgments of

the superior courts, such as the High Courts and the Supreme Court, which
judges are bound to follow. This binding character of the previously decided
cases is important, considering the hierarchy of the courts established by the
legal systems of a particular country. In the case of India, this hierarchy has
been established by the Constitution of India.
Judicial precedent is an important source of law, but it is neither as modern as
legislation nor is it as old as custom. It is an important feature of the English

39
legal system as well as of other common law countries which follow the English
legal system.
In most of the developed legal systems, judiciary is considered to be an
important organ of the State. In modern societies, rights are generally conferred
on the citizens by legislation and the main function of the judiciary is to
adjudicate upon these rights. The judges decide those matters on the basis of
the legislations and prevailing custom but while doing so, they also play a
creative role by interpreting the law. By this exercise, they lay down new
principles and rules which are generally binding on lower courts within a legal
system.
Given this background, it is important to understand the extent to which the
courts are guided by precedents. It is equally important to understand what
really constitutes the judicial decision in a case and which part of the decision
is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio Decedendi (Reason of Decision):'Ratio Decedendi' refers to the binding

part of a judgment. 'Ratio Decedendi' literally means reasons for the decision.
It is considered as the general principle which is deduced by the courts from
the facts of a particular case. It becomes generally binding on the lower courts
in future cases involving similar questions of law.
Obiter dicta (Said by the way) : An 'obiter dictum' refers to parts of judicial
decisions which are general observations of the judge and do not have any
binding authority. However, obiter of a higher judiciary is given due
consideration by lower courts and has persuasive value.

Having considered the various aspects of the precedent i.e. ratio and obiter, it
is clear that the system of precedent is based on the hierarchy of courts.
Therefore, it becomes important to understand the hierarchy of courts in order
to understand precedent.
Every legal system has its own distinct features. Therefore, the doctrine of
precedent is applied differently in different countries. In India, the doctrine of
precedent is based on the concept of hierarchy of courts.
The modern system of precedent developed in India during the British rule. It
was the British who introduced the system of courts in India. By the Regulating
Act of 1773, a Supreme Court was established at Calcutta (Kolkata). Later on,
other Supreme Courts were established in other presidency towns also. After
that, High Courts were established in provinces. However, there was no
hierarchy of courts between the Supreme Court and High Courts, and they
were independent of one another.

40
The hierarchy of courts could be established only when the judicial committee
of the Privy Council became the final appellate tribunal. Another milestone
regarding the hierarchy of courts was the Government of India Act, 1935, which
established the Federal Court. Therefore, as far as hierarchy of courts in India
before Independence was concerned, the Privy Council was the final appellate
court while other courts below it like the Federal Court, High Court, the
Presidency and Mofussil courts were bound to follow the decisions of their
superior courts.

Answer the following question:

Q1..Explain the circumstances destroying orweakening the binding force of a

precede-nt.

41
Q.2. Compare the sources of Municipal Law with the sources of International Law.
What is the status of custom as a source of law in the municipal and international
context?

42
Q.3.Not all portion of a judgment is binding, even of the higher courts'. Analyse this
statement in the light of the tests to determine ratio decidendi.

43
Tick the correct answers:
1. Which one is not essential for providing custom?

a. Certainty

b. Consistency

c. Peaceable enjoyment

d. Written

2. Which of the following id not true about the conformity of custom?

a. It should be in conformity with public policy

b. It should be in conformity with statutory law.

44
 c. In England custom will be recognised even if it is in conflict with some
fundamental principle of the common law.

d. The custom must not be in conflict with the custom.

3. Salmond further divided material sources of law into:

a. Legal and historical

b. Political and philosophical

c. General and particular

d. Social and individual.

4. In case there is a conflict between the decision of two co-equal bench,

a. Court can follow any of the two decision

b. The decision later in time must be followed

c. The decision of both the courts will be of no value

d. The matter will be referred to the Supreme Court.

5. Direction: Assertion (A) and reason (R) Code:

(A) Both (A) and (R) are individually true and (R) is the correct explanation of
(A).

(B) Both (A) and (R) are individually true and (R) are individually true and (R ) is
not correct explanation of (A).

(C) (A) is not true but (R) is false.

(D) (A) is false but (R) is true.

Assertion: The quintessence of Ancient Indian Legal system is the belief in

the existence of higher law Dharma.

Reason: Dharma a long governed and bound all people including the
ruler.

6. A decision given by higher court has binding effect:

a. Even if it was given in ignorance of a statute or a rule having the force

of statute.

b. Only if it was not given in ignorance of an existing statute.

c. Ignorance of statute carries no weight, if the decision having

inclination towards public welfare.

45
 d. None of the above is true.

7. Which of the following statement is true?

a. Decision of privy council were binding on the federal court.

b. Decision of privy council are binding on the Supreme court of India.

c. After independence decision of privy council and federal court has no

legal sanctity.

d. All the above.

8. Legislation as a source of law include:

a. Custom

b. Convention

c. Precedent

d. Law framed by organized or defined body.

9. Which of the following statements are true?

I. Legislation is superior to custom

II. Custom is superior to legislation

III. Legislation can abrogate custom

IV. Custom can abrogate legislation

a. 1,3

b. 2,4

c. 2,3,4

d. 1,3,4

10. Legislation cannot abrogate custom if it is:

a. Existing in the form of precedent

b. Existing in the form of legislation

c. Existing in the form of custom before 1189.

d. None of the above.

46
 REMARKS
____________________________________________________________

47
48
 Marks awarded

UNIT-3
LEGAL RESONING
Learning Objective: On completion of this Unit, students will be able to read, analyse
and understand different legal materials, and to narrate the reasoning employed by
judges in their judgements.

TOPICS:
1.Legal Material:

i. Case law
ii. Case briefing

49
iii. Statutes
iv. Reports
v. Journals
vi. Manuals
vii. Digests

2.New Dimension of Legal Research:

i. Use of Online Database and e-resources

ii. Techniques of Legal Research
iii. Legal writings and citations
iv. Judicial Reasoning
v. Analogizing
vi. Case synthesis.

Legal Material:
Case Law

According to Black’s Law Dictionary – the words “Case Law” denotes a professional
name for the aggregate of reported cases as forming a body of jurisprudence; or for
the law of a particular subject as evidenced or formed by the adjudged cases; in
distinction to statutes and other sources of law.

According to Nolo’s Plain-English Law Dictionary - The law based on judicial

opinions (including decisions that interpret statutes), as opposed to law based on
statutes, regulations, or other sources. Also refers to the collection of reported judicial
decisions within a particular jurisdiction dealing with a specific issue or topic.

Case Law Court has complete discretion to either take the tough or the weak decision.
Our point of departure is the observation that under Case Law, whenever a Court of
Law exercises discretion it does so necessarily ex-post. It is hard to argue with the
view that Courts (if at all) intervene ex-post in the parties’ relationship. This affords
the Case Law Courts the flexibility to fine tune its rulings to the realized state of
nature. Statute Law, on the contrary, by its assumed incompleteness, does not have
the possibility to make rulings contingent on the realized state and hence commits all
Courts to the same, predetermined ex-ante, decision. This has far reaching
implications for the behaviour of Courts under the two regimes. Under Case Law,
when a Court exercises discretion on whether to take a tough or a weak decision, the
ex-ante actions of the parties no longer matter because the parties’ strategic decisions
are sunk. This biases the Court’s decision away from ex-ante efficiency. In short, under
Case Law, because Courts exercise discretion ex-post, they suffer from a time-
inconsistency problem. If they just maximize the (ex-post) welfare of the parties in

50
Court, they would choose the weak decision. What affords Case Law Court the
possibility to make contingent rulings—the fact that a Court decides only at an ex-
post stage—is also the source of the time-inconsistency problem that affects these
Courts. Under Case Law, the Courts’ bias towards weak decisions is mitigated,
although not entirely resolved, by the dynamics of precedents. Each Court is tempted
to take the weak decision even when it should not do so. However, taking the tough
decision, through precedent setting, increases the probability that future Courts will
be constrained to do the same, thus raising ex-ante welfare. The choice of each Court
between a weak or a tough decision is determined by the trade-off between an
instantaneous gain from a weak decision, and a future gain from a tough one, via the
dynamics of precedents. The time inconsistency problem that characterizes the Case
Law regime simply does not arise under Statute Law. In this regime, all Courts are
committed in advance to a given decision, determined by the Statute Book. In our
stylized world, under Statute Law the Courts are completely inflexible. They cannot
tailor their decision to the case drawn each period from a heterogeneous pool.
Inflexibility is the cost that the Statute Law regime bears while solving the time
inconsistency problem. Our key finding is that the time-inconsistency problem
prevents the Case Law regime from reaching full efficiency. This, surprisingly, is true
under very general conditions on the dynamics of precedents, and regardless of the
rate at which the future is discounted, provided it is positive. Eventually, under Case
Law, the Courts must succumb to the present-bias. This is because they trade off a
present increase in (ex-post) welfare, which does not shrink as time goes by, against a
marginal effect on the decisions of future Courts. The latter eventually shrinks to be
arbitrarily small. It is then relatively straightforward to argue that if the heterogeneity
of the pool of cases that come before the Courts is “sufficiently small,” then Statute
Law will be superior to Case Law. As the pool of cases becomes more and more
homogeneous, the loss from the inflexibility of Statute Law eventually becomes
smaller than the loss from the time-inconsistency problem under Case Law. Under
some further restrictions on the mechanics that govern the dynamics of precedents,
we are able to characterize more stringently the equilibrium behaviour of the model.
Besides being of independent interest as we will argue below, this gives us the chance
to establish conditions of both a legal and an economic nature under which Case Law
dominates Statute Law. In particular, we verify that when the degree of heterogeneity
of the pool of cases is high the optimal regime is in fact Case Law. The degree of
heterogeneity of the pool of cases in our model can easily be reinterpreted as the “rate
of legal innovation.” Our results then lead us to conclude that when this is high — for
instance in finance — Case Law dominates, while when it is low — for instance
ownership rights, or inheritance law — Statute Law is instead the optimal regime. Our
findings rely on a characterization of the evolution of precedents through time in a
Case Law regime.

51
Case Briefing:

A case brief is a condensed, concise outline-form summary of a court opinion. Hence,

the term “brief.” It is generally used for more efficient self-study (it’s easier and more
simple than re-reading a 100-page long case every time you want to refresh your
memory about the case). It is also used to present the case to others (it’s easier and
more simple than reading a 100-page long case verbatim). In other words, a case brief
boils down a court opinion to the key elements and discusses the essence of the court’s
opinion. These basic elements are the facts of the case, the particular legal issue that
is at question in the case, the specific legal rule of law that is applicable to the case, the
application of that rule of law to the facts of the case, and then the court’s
holding/conclusion. With the exception of the specific rule of law (which should
almost always be quoted), the case brief should be a summary and paraphrasing of
the court’s opinion “in your own words”. This forces you to understand the court’s
opinion much more deeply.
Statutes:
Statutes are the most important source of law in modern times. The law which comes
into being through legislation is called enacted or statute law. Statutes are the
declarations of legal rules by a competent authority. Legislation is the act of laying
down of legal rules by sovereign or subordinate legislators. Legislators can lay down
rules purely for the future and without reference to any actual dispute. Statute
includes every expression of the will of the legislature, whether directed to the making
of rules of law or not. In this way every Act of the parliament is an instance of
legislation, irrespective altogether of its purpose and effect, an act of Parliament
becomes a statute. An act of Parliament cannot be held void for unreasonableness or,
it seems, upon any other ground except as against the spirit of the constitution of that
country. Enacted law is the statute law. Statute can be amended or replaced or
modified or abolished by the Parliament only according to the changed conditions.
There is no legal limit upon the power of Parliament. Enactment would qualify as a
statute having the force of law.
Acts of legislature are generally cited by their short title, for example, “The Patent
Act,1970.”. It also called as Act No.39 of 1970. Acts are numbered serially throughout
each calendar year in the order in which they receive he assent of the President or
Governor of a state.
The statutes consist of the following parts in their body:
Title
Chapters or parts
Preamble
Sections and subsections
Definitions
Marginal notes

52
Punctuation
Proviso
Explanation
Illustrations
Schedules

Researching statues:
The following are the steps to following researching any statute:
1. Identify the statute to be studied
2. Locate the appropriate statute where it was published.
3. Read the statute
4. Scan the content of the statue to see if there are cases or articles that
should be read.
5. Examine the updating sources. Law is never static. Law changes every
day.
6. Find out the constitutionality of the constitutionality of the provisions
of statute.
7. Find out whether the statute is practicable.

Reports:
The legal research report is the statement that contains in brief the
procedure adopted and the findings arrived at by the researcher of a
legal problem. A legal report is not a complete description of work done
by the researcher. It is only a brief statement of most significant facts
that are necessary for understanding the generalizations drawn by the
investigators. After the collected data have been drawn, the report has
to be prepared. It is the last phase of the research.
A vast planning and preparation is necessary for writing he report.
Writing the report requires considerable thought, effort, patience and
penetration. Writing a legal research report is a technical activity which
demands skills and patience from the researcher. The report should
focus on the target audience. Report should be simple, interesting and
lucid. Only hard and patient work on facts, careful and critical
assessment and intelligent planning of the organisation of the report can
facilitate the communication. There is no standard criterion for the
organisation of legal research report.

Contents or essentials of a Research Report:

Pauline V. young summarized the contents of a good as given below:

53
 (A) Introduction
i. Clear-cut statements as to the nature of the study,
ii. Aims,
iii. Sources of information (including persons consulted and
library material used),
iv. Scope of study.

(B) Brief statement of the working hypothesis which guided the study.
(C) Explicit definitions of units of study.
(D) Brief statements of techniques used in study:
i. Types of observations used and conditions under which
observations are made;
ii. Types of schedules formulated and conditions under which
information was secured;
iii. Types of case history data secured, their sources, manner of
presentation, and preliminary analysis made;
iv. Sampling procedures and conditions of selection and testing
for appropriateness, representativeness, and errors;
v. Statistical procedures, sources of statistical data, conditions
under which they were obtained;
vi. Types of scaling techniques used.
(E) Brief description of experimental treatment of data and techniques
in experiments.
(F) Major findings
(G) Major conclusions reached about findings.
(H)Special remarks:
i. Problems encountered in gathering the data, classifying
them, analysing them;
ii. Possible discrepancies in the data collected.
iii. Suggestions to subsequent investigators on same topics in
same context.
(I) Bibliographical references found useful I study (with annotations).
(J) Appendixes might include sample questionnaires, transcription
sheets, sample interviews and the like.
All research ventures need not follow all these lines or stages. They mostly are in the
nature of philosophical exposition. Generally, the legal research report consists of
three parts:
i. Preliminaries
ii. The text

54
 iii. The references materials.

Law Journal:
A scholarly or academic publication presenting commentary of emerging or topical
developments in the law, and often specializing in a particular area of the law or
legal information specific to a jurisdiction. The information is presented in the form
of essays or articles.

Also known as:

legal periodicals;
legal journals; or
law review.
Law journals are usually published by one of the following sources:

Those edited and published by students at a law school such as

the Harvard Law Review;
Those edited and published by a commercial law publisher; and
Those edited and published by a law association such as a bar association
or law society.
"Law journals are critical to the proper functioning of legal systems. They contribute
invaluably to the development of the law by influencing statutory law reforms and
case law. Law reviews, it may be added, also perform the important function of
facilitating access to the law.

"(A law) journal offers an opportunity for unbiased reflection on specific legal issues,
which is critical to the proper development of the law."

Manuals

A comprehensive direct, published annually that gives information about

government emphasising more on the executive, regulatory agencies, also
information about the judicial branch.

Digest:

A collection or compilation that embodies the chief matter of numerous books, articl
es, court decisions, and so on, disposedunder proper heads or titles, and usually by a
n alphabetical arrangement for facility in reference.

55
An index to reported cases, providing brief statements of court holdings or facts of c
ases, which is arranged by subject and subdivided by jurisdiction and courts.

As a legal term, digest is to be distinguished from abridgment. The latter is a summa

ry of the contents of a single work,

inwhich, as a rule, the original order or sequence of parts is preserved, and in which
the principal labor of the compiler is in thematter of consolidation.

A digest is wider in its scope, is made up of quotations or paraphrased passages, and

has its ownsystem of classification and arrangement. An index merely points out the
places where particular matters may be found,
without purporting to give such matters in extenso. A treatise or commentary is not
a compilation, but an originalcomposition, though it may include quotations and exc
erpts.
New Dimension of Legal Research:

Use of online data base and e-resources-

Before this discussion begins, one should be familiar with general search techniques,
such as the use of Boolean operators and wild cards.

Boolean operator -Boolean Operators are simple words (AND, OR, NOT or AND
NOT) used as conjunctions to combine or exclude keywords in a search, resulting in
more focused and productive results. This should save time and effort by eliminating
inappropriate hits that must be scanned before discarding. Using these operators can
greatly reduce or expand the amount of records returned. Boolean operators are useful
in saving time by focusing searches for more 'on-target' results that are more
appropriate to your needs, eliminating unsuitable or inappropriate. Each search
engine or database collection uses Boolean operators in a slightly different way or may
require the operator be typed in capitals or have special punctuation. The specific
phrasing will be found in either the guide to the specific database found in Research
Resources or the search engine's help screens. Proximity Operators (with, near and
others) can also help in searching.

E.g. AND—requires both terms to be in each item returned. If one term is contained
in the document and the other is not, the item is not included in the resulting list.
(Narrows the search).

56
For instance, a search about Law and psychology would include results containing:
Law and Psychology - Joint Degree and Cooperative Programs ..., Careers in
Psychology and Law - APA Divisions, Legal psychology etc.…

A search about law or psychology would include, Law Degree Vs. Psychology
Degree, Psychology vs Law.

Wild cards- In regular expressions, the period (., also called "dot") is
the wildcard pattern character that matches a single character. Combined with the
asterisk operator .* it will match any number of characters. In this case, the asterisk is
also known as the Kleene star.

There are various ways to get started:

(1) Books on using the internet for legal research. Such as Law on the internet.
(2) Using general search engines like google.com.
(3) Law university home pages. More or less all universities or colleges are
quite likely to have a homepage with relevant links, but in addition, other
publicly available site, such as Cambridge Law Faculty website could
also be used.
Say for example, in our college website, we have an option called Library, after
clicking there, it would take us to a definite page, http://library.christuniversity.in/,
there all we need to do is to click on the online journal option, a dialogue box would
appear that would contain four more options that includes, journals, e-books,
magazines, newspapers and can browse them according to our needs.

Manupatra, Lexis Nexis, west law etc. are some of the commonly used journals and
databases by legal researchers.

Legal writing and citations:

Introduction

When lawyers present legal arguments and judges write opinions, they cite authority.
They lace their representations of what the law is and how it applies to a given
situation with references to statutes, regulations, and prior appellate decisions they
believe to be pertinent and supporting. They also refer to persuasive secondary
literature such as treatises, restatements, and journal articles. As a consequence, those
who would read law writing and do law writing must master a new, technical
language – "legal citation. "For many years, the authoritative reference work on "legal
citation" was a manual written and published by a small group of law reviews.

57
Western Approach:

Known by the colour of its cover, The Bluebook was the codification of professional
norms that introduced generations of law students to "legal citation." So completely
do many academics, lawyers, and judges identify the process with that book they may
refer to putting citations in proper form as "Bluebooking" or ask a law student or
graduate whether she knows how to "Bluebook." The most recent edition of The
Bluebook: A Uniform System of Citation, the twentieth, was published in 2015. In 2000 a
competing reference appeared, one designed specifically for instructional use.
Prepared by the Association of Legal Writing Directors, the ALWD Guide to Legal
Citation (5th ed. 2014) has won wide acceptance in law school legal writing programs.

Differences between the two are microscopic (and noted here). In the way that
dictionaries both prescribe and reflect usage, so do these manuals. Both also reflect
their origins. They are prepared in law schools with comprehensive print libraries and
access to the most expensive commercial online legal information systems. Their
principal focus is on the type of writing that law students and law professors do and
that academic law journals publish. The realities of professional practice in many
settings, particularly at a time when digital distribution of legal materials has largely
displaced print, lead to dialects or usages in legal citation neither manual includes.
And the type of writing required of lawyers and judges and the context lead to citation
practices quite different from those appropriate to published articles. This
introduction to legal citation is focused on the forms of citation used in professional
practice rather than those used in journal publication. For that reason, it does not cover
the distinct typography rules for the latter. Furthermore, it aims to identify the more
important points on which there is divergence between the rules set out in the two
manuals and evolving usage reflected in legal memoranda and briefs prepared by
practicing lawyers. As is true with other languages, learning to read "legal citation" is
easier than learning to write it fluently. The active use of any language requires greater
mastery than the receiving and understanding of it. In addition, there is the potential
confusion of dialects or other nonstandard forms of expression. As already noted,
"legal citation," like other languages, does indeed have dialects. Most are readily
understandable and thus pose little likelihood of confusion for a reader. To the
beginning writer, however, they present a serious risk of misleading and inconsistent
models. As a writer of "legal citation," you must take care that you check all references
that you find in the work of others. This includes citations in court opinions. In part
this is because commercial publishers have long viewed citation as a subtle form of
advertising through branding. Thus, citations in decisions published in the multiple
series of the National Reporter System of the Thomson Reuters unit known as West
(from the Atlantic Reporter to the Federal Supplement) have been altered by its editors to
refer to other West publications. In addition, several important state courts, California,

58
Illinois, and New York among them, have idiosyncratic citation norms for their own
decisions. Many more cite their state's statutes and administrative regulations without
repetition of a full abbreviation of the state's name in each reference, that being
implied by context. While each of these courts is likely to accept – indeed, may even
prefer – briefs using the same citation dialect, Federal courts in the same state may
not. In short, copying and pasting citations from decisions and other references into
one's own writing is almost certain to yield inconsistent, nonstandard, and even
incomplete citations. Changes in citation norms over time also caution against relying
on source material for proper citation form. The Bluebook has been revised six times
since 1990, substantially in 1991, controversially in 1996, and again in 2000, 2005, 2010,
and 2015. Because of these changes, citations you find in legal documents published
in prior years, although they may have been totally conformed to citation standards
at the time of writing, may need reformatting to comply with current ones. In other
words, imported citations, even those imported from the most carefully edited pre-
2015 journal articles, books, or opinions, may not be in proper current form. It should
also be noted that The Bluebook itself has throughout these revisions set forth two
distinct versions of citation – one for journals and an alternative set of "practitioner
rules. "What about the feature now part of many online services that enables users to
block text and copy it together with its “citation” into their notes? With some services
users are even invited to select among a number of different citation formats.
Regrettably, even the best (and most expensive) do not remove the need for
researchers to know and apply the detailed citation norms applicable to the brief or
memorandum they will ultimately prepare. There are several reasons for this gap
between promise and performance. To begin, the most prominent services continue
to view citation as a means of branding. Any statutory provision retrieved with
citation from Westlaw or Lexis will cite to the publisher’s proprietary version of the
jurisdiction’s code rather than provide the reference in its official or generic format.
Case citations retrieved from Westlaw give unnecessary prominence to the
publisher’s National Reporter System volume and page numbers. Secondly, none of the
services delivers all the information that a writer will need for a complete citation
across all types of material. Many fail to include the page or paragraph number of a
specific passage copied from within a case. All fail to include the subsection,
paragraph, and subparagraph numbers of a copied statutory or regulatory provision.
What this means is that before you can safely rely on citations delivered by an online
service you must have mastered legal citation sufficiently to know what additional
information you will need to append to them manually in your notes, what portion of
the citations furnished you can safely delete, and the extent to which you will need to
reformat what remains. Few people find a dictionary the best starting point for
learning a new language. For many of the same reasons neither The Bluebook nor
the ALWD Guide to Legal Citation is a good primer. Like dictionaries, both manuals are

59
designed as comprehensive reference works. This introduction refers to them
throughout. But while they aim at exhaustive coverage, these materials seek to
introduce the basics through concise statements of principles and usage linked to
examples. The aim is not to separate you from a full reference work; inevitably you
will encounter unusual situations that require "looking up" the proper "rule" or
abbreviation in a more comprehensive manual. Instead, this introduction aims at
building a basic mastery of "legal citation" as codified in the two major references – a
level of mastery that should enable you to do all of your legal reading and much of
your legal writing without having to reach for them. Since both The Bluebook and
the ALWD Guide to Legal Citation embrace the full range of journal writing, they
furnish guidance on how to cite all manner of references infrequently used in
practitioner writing, including a variety of foreign law materials and historic
references. By contrast, this introduction is limited to contemporary U.S. legal
material. Because this introduction is not a substitute for a comprehensive reference,
you would be wise to introduce yourself to one as you proceed through this material.
Read through its table of contents and introductory material. Each topic covered here
includes links to tables providing references to coverage in The Bluebook and
the ALWD Guide to Legal Citation. Observing how the manual that you have chosen (or
others have chosen for you) arrays its more detailed treatment should be part of your
initial exploration of each topic here. There is no question but that striving for proper
citation form will for a time seem a silly distraction from the core project of writing.
But as is true with other languages, those who use this one carefully make negative
assumptions about the craft of those who don't. Being a simple language at its core,
this one should fairly quickly become a matter of habit and, thus, no longer a
distraction.

Indian approach:

SIGNS AND SIGNALS SIGNS, SIGNALS, AND ABBREVIATIONS

i. Signs and Signals

a. Ibid: Ibid is used to refer to an immediately preceding authority, either exactly as

it has been cited, or at a different page number. In the first case, only the term ‘Ibid’,
is used, whereas in the latter case, a different page number is alluded to by following
‘Ibid’, with the word ‘at’ and the relevant page number.

Example:

P.C. Markenda, Law Relating to Arbitration & Conciliation, 98 (6th ed., 2006)
Ibid.

60
 Ibid, at 64. (NOTE: Here 64 is the page number from where the author has
taken the cited statement/text).

b. Supra: When an authority has been fully cited previously by the author, ‘Supra’
is used to refer to that same authority at a later point. Supra should only be used
where it is inappropriate to use ‘Ibid’.

Example:
V.N. Shukla’s Constitution of India, 219 (M.P. Singh, 12th ed., 2013).
S. Sen, The Principle of Common Heritage of Mankind in Outer Space: A
Framework of Ambiguity and Ineffectiveness?, 26, 39 in Outer Space Law:
From Theory to Practice (Sandeepa Bhat B., 1st ed., 2009).
Ibid.  46 Supra 43. (NOTE: Here 43 is the footnote number where the
authority was first cited in the paper).
Supra 21, at 991. (NOTE: Here 21 is the footnote number where the authority
was first cited in the paper and 991 is the page number from where the author
has taken the cited statement/text).

c. See: When the cited statement is not directly related to the given authority, ‘See’
needs to be added as a prefix in that footnote.

See R. v. Sinclair (2010) 2 SCR. 310. (NOTE: This may be used while giving an
example in the citation. This signal can be used alone or attached with any other
signal.).

ii. Abbreviations and Details :

a. Dates: When providing dates, always provide dates in

the format of day/month/year.

Example:

June 3rd, 2012 will be cited as 03/06/2012.

December 22nd, 2005 will be cited as 25/12/2005.

b. Abbreviating Names:

First names and middle names of authors shall be abbreviated

by using the first letter of the name followed by a period. The
last name shall be provided in full.

Example:

61
 Jawaharlal Nehru will be abbreviated as J. Nehru.

Mahendra Pal Singh will be abbreviated as M.P. Singh.

c. URLs: When providing a URL in a citation, the URL should

be provided in its full form and should, if possible, provide one
click access to the referred web page. The URL should always
be preceded by the phrase ‘available at’ and followed by ‘last
seen on’ and the date on which the URL was last accessed.

Example: J.V.M. Sarma & V. Bhaskar, A Road Map for

Implementing the Goods and Services Tax, 47(31) Economic &
Political Weekly 68, 70 (2012), available at
http://www.epw.in/system/files/pdf/201247/31/A_Road_
Map_for_Implementin g_the_Goods_and_Services_Tax.pdf,
last seen on 1/11/2013.

INDIAN SOURCES:

CASES : A case citation for a published judgment includes the

full name of the case, the citation as per the reporter in which
it is published and the first page of the case. In order to cite an
un-published judgment, first note the name of the parties
followed by the case/appeal number. It should be followed by
the name of the Court and the date the judgment was passed
in parenthesis. The name of the parties should be separated
with a ‘v.’. The case/appeal number will be the number
assigned to the judgment by the Court.

How to cite: Names of the Parties, Citation. Example:

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461,
1480.

Other reporters:

Charan Lal Sahu v. Union Carbide, (1989) 1 SCC 674.

Singh v. Punjab, (1980) 2 SCJ 475, 524.

R. v. Sinclair (2010) 2 SCR. 310.

62
 Navjot Sandhu and Mohd. Arif v. State of Delhi, 2011 (8)
SCALE 328; 2012 (1) ACR 477 (SC); 2012 1 AWC 246 SC; 2012
(2) CGLJ 229; 2011 (3) Crimes 228 (SC); JT 2011 (9) SC 563.

How to cite Unpublished Decisions: Names of the Parties,

Appeal Number (Court name, Date).

Examples:

Mohammed Ajmal Mohammad Amir Kasab v. State of

Maharashtra, Criminal Appeal No. 1899-1900 and 1961 of 2011
and Transfer Petition (Criminal) No. 30 of 2012 (Supreme
Court, 29/08/2012).

State of Bihar v. Nirmal Kumar Gupta, Civil Appeal No. 128

of 2013 (Supreme Court, 08/01/2013).

Rakeysh Omprakash Mehra v. Govt. of NCT of Delhi, W.P.

(Crl.) 1188/2009 & Crl. M.A. 9918/2009 (Delhi High Court,
02/01/2013).

i. Securities Appellate Tribunal

Orders of the Securities Appellate Tribunal of India are cited

by providing the names of the parties, the application or appeal
umber, and in parenthesis ‘Securities Appellate Tribunal’ and
the date of the order. The name of the parties should be
separated with a ‘v.’.

How to cite: Name of the Parties, Application/Appeal No. (as

applicable) (Securities Appellate Tribunal, Date of Order).
(NOTE: this is for unpublished cases. Published cases are cited
as per the reporter in which they are published.)

Example:

Sahara India Real Estate Corporation Ltd. v. Securities and

Exchange Board of India, Misc. Application No. 133 of 2013
and Appeal No. 206 of 2013 (Securities Appellate Tribunal,
04/02/2014).

ii. Competition Commission of India

63
Orders of the Competition Commission of India are cited by
providing the names of the parties, the case number, and in
parenthesis ‘Competition Commission of India’ and the date of
the order. The name of the parties should be separated with a
‘v.’.

How to cite: Name of the Parties, Case No. (Competition

Commission of India, Date of Order).

Example: Ajay Devgn Films v. Yash Raj Films Private

Limited, Case No. 66 of 2012 (Competition Commission of
India, 05/11/2012). DLF City Club Members Welfare
Association v. DLF Recreational Foundation Ltd, Case No. 25
of 2013, (Competition Commission of India, 01/07/2013).

LEGISLATIVE MATERIALS

i. Statutes : In order to cite a primary legislation, first mention

the Section/ Order/ Rule number, followed by the name of the
Statute and the year it was passed. To indicate a section, a
capitalized letter ‘S.’ should be used. To indicate multiple
sections, ‘Ss’. should be used.

How to cite: S. | Section number/Order Number/ Rule

Number, Name of the statute, Year. Examples: S. 376(2) (g),
The Indian Penal Code, 1960. Ss. 25, 26 & 27, The Indian
Contract Act, 1872. Order 1, Rule 3, The Code of Civil
Procedure, 1908. Rule 7, Depositories (Appeal to Securities
Appellate Tribunal) Rules, 2000.

ii. Bills :In order to cite a Bill first mention the name of the Bill,
then the year it was drafted, and the current status of the Bill,
if available, in parenthesis. If it is unavailable, the author can
say so.

How to cite: Name of the Bill, Year (Status of the Bill).

Examples:

The Competition (Amendment) Bill, 2012 (pending).

The Prevention of Money Laundering (Amendment) Bill,

2011 (passed by Lok Sabha, 29/11/2012).

64
 The Rights of Persons with Disabilities Bill, 2012 (draft bill,
Sep 2012). The Constitution (116th Amendment) Bill, 2012
(pending). The Constitution (117th Amendment) Bill, 2012
(passed by Rajya Sabha, 17/12/2012).

iii. The Indian Constitution :In order to cite any

Article/Schedule of the Constitution, first mention the
criterion followed by its number and the phrase ‘the
Constitution of India’. To indicate an Article, ‘Art.’ should be
used.

How to cite: Art./Schedule| Article/Schedule number, the

Constitution of India. Examples:

Art. 14, the Constitution of India.

Schedule 9, the Constitution of India.

iv. Parliamentary Committee Reports: Parliamentary

Committee Reports are cited by first mentioning the name of
the Committee that passed the Report, followed by the House
of Parliament that set-up the Committee, the Title of the Report
in italics, and the year.

How to cite: Name of the Committee, House of Parliament,

Title of the Report, Year. Example: Committee on
Agriculture, Lok Sabha, The Multi-State Co-Operative
Societies (Amendment) Bill, 2010.

v. Reports by Ministries :In order to cite a Report by a Ministry,

first mention the name of the Ministry which released the
Report followed by the parent Government, i.e. Government
of India, and the title of the Report in italics. For Reports
available on the internet mention the phrase ‘available at’
followed by the web address (also known as the Uniform
Resource Locator or URL), the phrase ‘last seen on’, and the
date the web-source was last seen by the user.

How to cite: Name of the Ministry, Government of India, Title

of the Report, URL, last seen on dd/mm/yyyy. Example:
Ministry of Finance, Government of India, Annual Report
2012-13, available at

65
http://www.finmin.nic.in/reports/AnnualReport2012-
13.pdf, last seen on 11/11/2013.

vi. Parliamentary Debates : Parliamentary Debates are cited by

first referring to the type of debate followed by the name of the
Speaker/Participant, the title of the debate in italics, the House
of Parliament which held the debate, and the date of the debate
in parenthesis.

How to cite: Type of debate | by/to | Speaker/Participant,

Title of Debate, House of parliament (Date).

Example: Statement by Prime Minister, Statement

Regarding Civil Nuclear Energy Cooperation with the USA,
Lok Sabha (27/02/2006).

ARTICLES:

i. Law Reviews and Journals : Articles published in Law

Reviews or Journals are cited by mentioning the name of the
author, the title of the article in italics, the volume number of
the Law Review/Journal, the full name of the Law
Review/Journal, the first page/starting page of the article in
the Law Review/Journal, the page number containing the
relevant information, and the year of publication of the Law
Review/Journal in parenthesis. In case the Law
Review/Journal is available on the internet, it is followed by
‘available at' and the web address (the URL) and the phrase
‘last seen on’ and the date the web-source was last seen by the
user. The first and middle names of the author are to be
abbreviated to initials, using only the last name in its entirety.

How to cite:

Hard copy: Name of Author(s), Title of Article, Volume no.

Full Name of Journal| Starting page, Cited page (year).

Online: Name of Author(s), Title of Article, Volume no. |Full

Name of Journal| Starting page, Cited page| (year), URL, last
seen on dd/mm/yyyy.

66
Example:

C.D. Singh, P. Pranjal & S. Arora, The Protection of Children

from the Sexual Offences Act, 2012: A Critique of the Decision
to Raise the Age of Consent for Sexual Relations, 3 Journal of
Indian Law & Society 286, 300 (2012).

C.D. Singh, P. Pranjal & S. Arora, The Protection of Children

from the Sexual Offences Act, 2012: A Critique of the decision
to raise the age of consent for sexual relations, 3 Journal of
Indian Law & Society 286, 300 (2012), available at
http://jils.ac.in/wpcontent/uploads/2012/11/chitwan-
prashant-sahil1.pdf, last seen on 11/11/2013.

ii. Magazines (With Volume Number) :Articles published in

Magazines (which are available in volumes) are cited by
mentioning the name of the author(s), the title of the article in
italics, volume number of the Magazine, the issue number in
parenthesis, the full name of Magazine, the first page/starting
page of the article in the Magazine, the page number
containing the relevant information, and the year of
publication of the Magazine in parenthesis. In case the
Magazine is available on the internet, it is followed by
‘available at' and the web address (the URL) and the phrase
‘last seen on’, and the date the web-source was last seen by the
user. The first and middle names of the author are to be
abbreviated to initials, using only the last name in its entirety.

How to cite:

Hard copy: Name of author(s), Title of Article, Volume no.

(Issue no.) | Full Name of Magazine| Starting page, Cited
page (year).

Online: Name of author(s), Title of Article, Volume no. (Issue

no.) | Full Name of Magazine| Starting page, Cited
page(year)URL, last seen on dd/mm/yyyy.

Example:

67
 J.V.M. Sarma & V. Bhaskar, A Road Map for Implementing the
Goods and Services Tax, 47(31) Economic & Political Weekly
68, 70 (2012).

J.V.M. Sarma & V. Bhaskar, A Road Map for Implementing

the Goods and Services Tax, 47(31) Economic & Political
Weekly 68, 70(2012) available at
http://www.epw.in/system/files/pdf/2012_47/31/A_Road
_Map_for_Implementing_the_Goods_and_Services_Tax.pdf,
last seen on 11/11/2013.

V. Venkatesan, Uncertain Principles, 30(1) Frontline, (Jan 12-

25, 2013) available at
http://www.hindu.com/fline/fl3001/stories/2013012530011
0000.htm last seen on 11/11/2013.

iii. Magazines (Without Volume Number): Articles published

in Magazines are cited by mentioning the name of the
author(s), the title of the article in italics, the full name of the
Magazine, the first page/starting page of the article in the
Magazine, the page number containing the relevant
information, and the date of publication of the Magazine in
parenthesis. If the Magazine is available on the Internet, it is
followed by ‘available at' and the web address (the URL) and
the phrase ‘last seen on’, and the date the web-source was last
seen by the user. The first and middle names of the author are
to be abbreviated to initials, using only the last name in its
entirety.

How to cite:

Hard copy: Name of author(s), Title of Article, Full Name of

Magazine Starting page, Cited page (Date).

Soft Copy: Name of author(s), Title of Article, Full Name of

Magazine (Date), URL, last seen on dd/mm/yyyy.

Example:

68
 R. Dixit, The Incensed and the Insensitive, The Week 35, 37
(06/01/2013). R. Dixit, The Incensed and the Insensitive,
The Week (31/12/2012), available at
http://week.manoramaonline.com/cgibin/MMOnline.dll/p
ortal/ep/theWeekContent.do?programId=1073755753&conte
n tId=13134055&tabId=13, last seen on 11/11/2013.

iv. Newspaper Articles (Print Version) :Newspaper Articles

(print versions) are cited by mentioning the name of the
author(s), the title of the article in italics, the full name of the
newspaper, the page number containing the relevant
information, and the city edition and the date of publication of
the Newspaper in parenthesis. The first and middle names of
the author are to be abbreviated to initials, using only the last
name in its entirety.

How to cite: Name of Author(s) (if given), Title of Article,

Name of newspaper page number (City edition, date).
Example:

T. Jaipuria, In Strong Message to Road Firms, NHAI may Bar

GMR from Bids, The Financial Express 1 (Kolkata,
11/01/2013).

v. Newspaper Articles (Online version): Newspaper Articles

(online versions) are cited by mentioning the name of the
author(s), the title of the article in italics, the full name of the
newspaper, the date of publication of the Newspaper in
parenthesis, and the web address (the URL). The first and
middle names of the author are to be abbreviated to initials,
using only the last name in its entirety

How to cite: Name of Author(s) (if given), Title of Article,

Name of newspaper (date), URL, last seen on dd/mm/yyyy.

Example: P. Swami, Runaway Grandmother Sparked Savage

Skirmish on LoC, The Hindu (09/01/2013), available at
http://www.thehindu.com/news/national/runawaygrandm
other-sparked-savage-skirmish-on-loc/article4291426.ece, last
seen on 21/12/2013.

BOOKS

69
i. Authored Books : Authored books are cited by mentioning
the name of the author(s), the title of the book in italics, the
page number containing the relevant information and name of
the editor(s), edition number, and the year of publication in
parenthesis. The first and middle names of the author are to be
abbreviated to initials, using only the last name in its entirety.

How to cite: Name of Author(s), Title of Book, Page Number

(Editors(s), edition, Year). Example:

P.C. Markenda, Law Relating to Arbitration & Conciliation,

98 (6th ed., 2006).

H.V. Hande, Ambedkar & the Making of the Indian

Constitution, 73 (1st ed., 2009).

ii. Edited Books: Edited books are cited by mentioning the title
of the book in italics, the page number containing the
information referred to, and the name of the editor(s), edition
number, and year of publication of the book in parenthesis.
The first and middle names of the author are to be abbreviated
to initials, using only the last name in its entirety.

How to cite: Title of Book, Page Number (Editors(s), Edition,

Year). Example:

V.N. Shukla’s Constitution of India, 219 (M.P. Singh, 12th

ed., 2013).

iii. Edited Books with Articles

Edited books with articles are cited by mentioning the name of

the author(s), the title of the article in italics, the number of the
first page of the article in the book, the page number containing
the information referred to, followed by the word ‘in’, which
in turn is followed by the title of the books. The name of the
editor(s), edition number, and year of publication of the book
are to be parenthesized. The first and middle names of the
author are to be abbreviated to initials, using only the last name
in its entirety.

70
How to cite: Name of Author(s), Title of the Article, First page,
cited page number in |Name of the Book (Editors(s), Edition,
Year).

Example: S. Sen, The Principle of Common Heritage of

Mankind in Outer Space: A Framework of Ambiguity and
Ineffectiveness? 26, 39 in Outer Space Law: From Theory to
Practice (Sandeepa Bhat B., 1st ed., 2009).

INTERNET SOURCES

i. Websites: Web-resources are cited by mentioning the title of

the web-page in italics followed by the name of the website and
the web-address (the URL).

How to cite: Title of Page, Name of website, URL, last seen on

dd/mm/yyyy.

Example:

About Us, Kulraj Broadway, available at

http://www.hdilbroadway.in/aboutus.html, last seen on
23/12/2013.

ii. Blogs :Blogs are cited by mentioning the name of the

author(s), title of the blog-post in italics followed by the name
of the blog, the web-address (the URL) and the phrase ‘last
seen on’, and the date the web-source was last seen by the user.

How to cite: Author(s), Title of Blog Post, Name of Blog, URL,

last seen on dd/mm/yyyy.

Example: G. Loomba, Will the Scourge of Manual

Scavenging End: Analyzing the 2012 Bill, JILS Blog, available
at http://jilsblognujs.wordpress.com/2013/01/13/will-the-
scourgeof-manual-scavenging-end-analyzing-the-2012-bill/,
last seen on 21/12/2013.

RESERVE BANK OF INDIA/SECURITIES AND EXCHANGE

BOARD OF INDIA/ MINISTRY OF CORPORATE AFFAIRS
CIRCULARS AND NOTIFICATIONS:

71
Notifications/Circulars published by regulatory authorities
like the RBI, SEBI, and MCA are cited by first mentioning the
subject/ title in italics, the criterion of notification followed by
the date of publication in parenthesis, the web-address (also
known as the URL) and the phrase ‘last seen on’, and the date
the web-source was last seen by the user.

How to cite: Subject/Title, SEBI/RBI/MCA

Notification/Circular (date), URL, last seen on dd/mm/yyyy.

Examples:

Standardisation of Interest Rate Swap Contracts, RBI

Notification No. RBI/2012-13/396 (28/01/2013), available at
http://www.rbi.org.in/scripts/NotificationUser.aspx?Id=782
8&Mode=0, last seen on 21/12/2013.

Guidelines for Providing Dedicated Debt Segment on Stock

Exchanges, SEBI Circular CIR/MRD/DP/03/2013
(24/01/2013) available at
http://www.sebi.gov.in/cms/sebi_data/attachdocs/1359035
278359.pdf, last seen on 21/12/2013.

Guidelines for Providing Dedicated Debt Segment on Stock

Exchanges, SEBI Circular CIR/MRD/DP/03/2013
(24/01/2013) available at
http://www.sebi.gov.in/cms/sebi_data/attachdocs/1359035
278359.pdf, last seen on 21/12/2013.

Easy Exit Scheme, 2011, MCA General Circular No. 1/2011

(03/02/2011) available at
http://www.mca.gov.in/Ministry/pdf/Circular_EES2011_03
feb2011.pdf, last seen on 21/12/2013.

LAW COMMISSION REPORTS: Law Commission Reports are

cited by first mentioning the Report number followed by the
phrase ‘Law Commission of India Report’, the title/ subject of
the Report in italics, the page number containing the relevant
information and the date of publication of the Report in
parenthesis. In case the Report is available on the internet, it is
followed by ‘available at’ and the web address (the URL) and

72
the phrase ‘last seen on’, and the date the web-source was last
seen by the user.

How to cite: Report number Law Commission of India Report,

Title/Subject, cited page number (year), URL, last seen on
dd/mm/yyyy. Example: 181st Law Commission of India
Report, Amendment to Section 106 of the Transfer of Property
Act, 1882, 8 (2002), available at
http://lawcommissionofindia.nic.in/reports/181rpt.pdf, last
seen on 11/11/2013.

WORKING PAPERS: Working Papers are cited by mentioning

the name of the author(s), the title of the Working Paper in
italics, the title of the Working Paper Series, the page number
containing the relevant information, the Working Paper
number, the Name of the Institution, and the year in
parenthesis. The first and middle names of the author are to be
abbreviated to initials, using only the last name in its entirety.

How to cite: Name of Author(s), Title of Paper, Title of

Working Paper Series, Page Number, Working Paper Number,
Name of Institution (Year). Example: Dr. S. Bhat & Shyamala
D., Euthanasia Regime: A Comparative Analysis of Dutch and
Indian Positions, NUJS Working Paper Series, 10, Working
Paper Number NUJS/WP/2011/03, National University of
Juridical Sciences, Kolkata (2011).

FORTHCOMING PAPERS:

Forthcoming Papers are cited by mentioning the name of the

author(s), the title of the Working Paper in italics, the title of
the journal/ publisher who will be publishing the paper, and
the forthcoming volume/ issue number/ month and the year
in parenthesis. The first and middle names of the author are to
be abbreviated to initials, using only the last name in its
entirety.

How to cite: Name of Author(s), Title of Paper, Name of

Journal/Publisher (forthcoming in Vol./Issue/Month (if
known), Year).

73
Example: K. Sanjana, Forest Dwellers as Deemed Homeless,
Journal of Indian Law & Society (forthcoming in Vol. 4, 2013).

INTERNATIONAL SOURCES:

CASE LAW:

i. United Kingdom Cases: A citation for a published judgment

from the United Kingdom includes the full name of the parties,
volume number, the name of the Reporter in the abbreviated
form, the first page/starting page number of the case in the
published case report, the page number containing the
relevant information, and the year and the name of the Court
in parenthesis. The name of the parties should be separated
with a ‘v.’

How to cite: Name of the parties, Volume number Reporter

abbreviation | Starting Page, Cited page (Year, Name of the
Court). Example:

R (R) v. Durham Constabulary, 2 All ER 369, 371 (2005,

House of Lords).

ii. United States Cases: A United States case citation includes

the full name of the parties, volume number, the name of the
Reporter in the abbreviated form, the first page/starting page
number of the case in the published case report, the page
number containing the relevant information, and the year and
the name of the Court in parenthesis. The name of the parties
should be separated with a ‘v.’

How to cite: Name of the Parties, Volume number, Reporter

abbreviation, Starting page, Cited page (Year, Name of the
Court). Example:

Grutter v. Bollinger, 539 U.S. 306 (2003, Supreme Court of

the United States).

iii. Cases from Other Jurisdictions: Cases from other

jurisdictions are cited as they are cited in their own jurisdiction.
Assuming that the name of the law report arrangement
referred to does not itself show the court, and the name of the

74
court is not clear from the given citation format, the name of
the court should be provided in parenthesis after the citation.

Example:

R. v. Tang, [2008] HCA 39 (High Court of Australia).

R v. Big M Drug Mart Ltd, [1985] 1 SCR 295, 300 (Supreme

Court of Canada).

STATUTES:

i. United Kingdom Statutes: A United Kingdom statute is cited

by mentioning the section number, the name of the statute, and
‘United Kingdom’ in parenthesis. In order to indicate the
section number, the symbol ‘S.’ should be used.

How to cite: S. Section Number| Name of the Statute (United

Kingdom).

Example:

S. 10, Financial Services Act 2012 (United Kingdom).

ii. United States Statutes: A statute from the U.S.A. is cited by

mentioning the title number of the Code followed by ‘U.S.C.’,
the section number, and ‘United States’ in parenthesis. In case
the name of the legislation is available, it should be cited by
mentioning the name of the Code followed by the section
number and ‘United States’ in parenthesis. In order to indicate
the section number, the symbol ‘S.’ should be used.

How to cite: Title number U.S.C. S. Section number (United

States).

Example:

32 U.S.C. S. 201(c) (2) (C) (ii) (United States).

How to cite: Name of the Code S. Section number (United

States). Example:

75
 The Social Security Act (Act of August 14 1935) S. 3(a)
(United States).

iii. Statutes from other Jurisdictions: Legislation from another

jurisdiction should be cited as it would be in its own
jurisdiction, followed by a comma, and the name of the
relevant jurisdiction in parenthesis at the end of the citation.

Example:

S. 21, Social Security Act 1991, (Australia).

CONSTITUTIONS:

i. The U.S. Constitution: Provisions of the U.S, Constitution are

cited by mentioning the ‘U.S. Constitution’, the Article
number, the section number, and if available, the clause
number. The section and clause number are indicated by using
‘S.’ and ‘Cl.’

How to cite: U.S. Constitution | Article | Article

number/Amendment number, | S. | Section number, | Cl. (if
any) | Clause number (if any). Example:

U.S. Constitution, Article III, S. 1, Cl. 1. U.S. Constitutional,

Amendment XI, S. 1.

ii. Other Constitutions: Constitutions from other jurisdictions

are cited as they would be cited in their own jurisdictions. The
name of the relevant jurisdiction should be mentioned in
parenthesis at the end of the citation if the name of the
Constitution is not self-explanatory.

Example:

Australian Constitution s. 41.

UNITED NATIONS SOURCES:

i. Verbatim or Summary Records: Verbatim or Summary

Records of the United Nations are cited by first mentioning the

76
name of the organ, the record category in italics, the session
where the records were made, the supplement number of the
record, the U.N. document symbol, the page number
containing the relevant information, and the web-address (the
URL) and the phrase ‘last seen on’, and the date the web-source
was last seen by the user.

How to cite: Name of the organ, Record Category, Session,

Supplement, U.N. document symbol, Cited page, URL, last
seen on dd/mm/yyyy.

Example:

U.N. General Assembly, Official Records, Sess. 56, Suppl. 10,

U.N. document A/56/10, 55, (12/09/2001) available at
http://www.un.org/documents/ga/docs/56/a5610.pdf, last
seen on 12/11/2011.

ii. Resolutions: Resolutions of the United Nations are cited by

first mentioning the name of the U.N. organ whose resolution
is referred to, the title of the resolution (if available) in italics,
the Resolution number, the session where the records were
made, the symbol of the U.N. organ of which the record is
from, the page number containing the relevant information,
and the web-address (the URL) and the phrase ‘last seen on’,
and the date the web-source was last seen by the user.

How to cite: Name of the organ, Title of the resolution if

available, Resolution, Session or Meeting, U.N. document
symbol, Cited page, URL, last seen on dd/mm/yyyy.

Example:

U.N. General Assembly, Capital Master Plan, Res. 65/269,

Sess. 65, U.N. Document A/RES/65/269, 4, (14/03/2011)
available at http://daccess-
ddsny.un.org/doc/UNDOC/GEN/N10/528/68/PDF/N105
2868.pdf?OpenElement, last seen on 12/13/2013. U.N.
Security Council, Res. 1540 (2004), Meet. 4956, U.N. Document
S/RES/1540 (2004), 3, (28/04/2004) available at
http://daccess-

77
ddsny.un.org/doc/UNDOC/GEN/N04/328/43/PDF/N043
2843.pdf?OpenElement, last seen on 29/12/2012.

iii. Reports:

a. Reports in the Official Records: Official Reports of the United

Nations are cited by first mentioning the title of the Report, the
period for which the Report was made, name of the U.N. organ
whose resolution is referred to, ‘Official Record’, the session
where the Reports were adopted, the supplement number, the
symbol of the U.N. organ of which the Report is from, the page
number containing the relevant information, ,the date
mentioned in the Report parenthesis, the phrase ‘available at’
followed by the URL, and the phrase ‘last seen on’, and the date
the web-source was last seen by the user.

How to cite: Title of the report, period if mentioned, Name of

the organ, Official Record, Session, Supplement, U.N.
document symbol, Cited page, (date) URL, last seen on
dd/mm/yyyy. Example: Report of the Security Council,
August 1, 2012 - July 31, 2013, U.N. General Assembly, Official
Record, Sess. 68, Suppl. 2, U.N. Document A/68/2, 14,
(30/10/2013) available at
http://www.un.org/en/ga/search/view_doc.asp?symbol=A
/68/2, last seen on 26/02/2014.

b. Conference Reports: Conference Reports of the United

Nations are cited by first mentioning the title of the Report in
italics, the name of the Conference whose Report is being
referred to, the name of the country where the Conference was
held, the date of the Conference, the U.N. document symbol,
the page number containing the relevant information, the web
address (the URL), and the phrase ‘last seen on’, and the date
the web-source was last seen by the user.

How to cite: Title of the Report, Name of the Conference,

Country where held, Dates, U.N. document symbol, Cited
page, URL, last seen on dd/mm/yyyy

78
Example:

Report of the Global Conference on the Sustainable

Development of Small Island Developing States, Barbados,
April 25 - May 6, 1994, U.N. Document A/CONF.167/9,
(October, 1994), available at
http://www.un.org/documents/ga/conf167/aconf1679.htm,
last seen on 29/12/2013.

c. Other Reports: Other Reports of the United Nations are cited

by first mentioning the title of the Report in italics, name of the
U.N. organ whose Report is referred to, the session or meeting
where the Report was adopted, the U.N. document symbol, the
page number containing the relevant information, the web-
address (the URL), and the phrase ‘last seen on’, and the date
the web-source was last seen by the user.

How to cite: Title of the Report, Name of the Organ, Session or

Meeting, U.N. document symbol, Cited page, URL, last seen on
dd/mm/yyyy. Example: Report of the Secretary-General on
the Peacebuilding Fund, General Assembly, Sess. 66, U.N.
Document A/66/659, 9, (16/01/2012) available at
http://www.un.org/ga/search/view_doc.asp?symbol=A/66
/659, last seen on 29/12/2013.

iv. Mimeographed/ Masthead Documents: Masthead

documents of the United Nations are cited by first mentioning
the title of the document, the symbol of the U.N. organ of
which the Document is from, the page number containing the
relevant information, and the web-address (also known as the
URL) followed by “last seen on’, and the date it was last seen.

How to cite: Title of the Document, U.N. Document Symbol,

Cited page, URL, last seen on dd/mm/yyyy.

Example:

Note verbale dated 29 April 2013 from the Permanent

Mission of Colombia to the United Nations addressed to the
Secretary-General, U.N. Document A/67/852, 2, (02/05/2013)
available at

79
http://www.un.org/ga/search/view_doc.asp?symbol=A/67
/852, last seen on 29/12/2013.

v. Press Releases : Press Releases of the United Nations are

cited by first mentioning the name of the U.N. organ whose
Press Release is referred to, ‘Press Release’, the title of the Press
Release in italics, the U.N. document symbol, the web-address
(also known as the URL), and the phrase ‘last seen on’, and the
date the web-source was last seen by the user .

How to cite: Name of the Organ, Press Release, Title of the

Document, U.N. document symbol, URL, last seen on
dd/mm/yyyy. Example:

U.N. Security Council, Press Release, Security Council Press

Statement on Bomb Attack in Mogadishu, U.N. Document
SC/11170-AFR/2748 (09/11/2013) available at
http://www.un.org/News/Press/docs//2013/sc11170.doc.
htm, last seen on 27/02/2014.

vi. Sales Publications: U.N. Sales Publications are cited by first

mentioning the title of the Publication, ‘U.N. Sales, the page
number containing the relevant information, and the year of
publication in parenthesis.

How to cite: Title of the Publication, U.N. Sales, cited page

(Year of Publication).

Example:

Economic Survey of Latin America and the Caribbean 2013:

Three Decades of Uneven and Unstable Growth, U.N. Sales
13.II.G.3 P, 154 (2013).

Periodicals and Yearbooks: Periodicals and Yearbooks of the

United Nations are cited by first mentioning the title of the
Publication, the volume number, the part number, ‘U.N. Sales’,
the page number containing the information relied on, and the
web-address (also known as the URL). The year of publication
should be mentioned at the end in parenthesis.

80
How to cite: Title of the Publication, Volume, Part, U.N. Sales,
cited page, (Year of Publication), URL, last seen on
dd/mm/yyyy.

Example:

The United Nations Disarmament Yearbook, Volume 37, Part I, U.N. Sales
E.13.IX.1, 5, (2012) available at
http://www.un.org/disarmament/publications/yearbook/en/EN-YB-VOL-
37- 2012-part1.pdf last seen on 29/12/2013.

81
 Activities and class work:

Model Case Brief Template and Sample:

Case: Name of the case, (and year of the decision).

Facts: Who are the parties to the lawsuit, what is their dispute, and how did they get
to the Supreme Court? In your own words, only include the few important facts
necessary to understand the case; e.g. the time of day a defendant was arrested is
usually not important, etc.

Issue: What is the basic legal question regarding what specific provision of law that
is to be decided in the case?

Holding: What is the majority’s basic answer to the basic legal question in the case.
Also include the vote count: majority/plurality—concurrence(s)—dissent(s)

Majority Opinion Reasoning:

What is the majority’s explanation why it reached its holding? You will want to create
a summarized, condensed, paraphrased outline of the court’s reasoning. The
reasoning simply consists of two things: the RULE and the APPLICATION (of the
rule to the facts of the case):
A. Rule: What rule of law is announced in the case? A court first must
announce a specific controlling principle of law (e.g. the court's
interpretation of a constitutional provision, NOT the constitutional
provision itself!) that applies to the issue in the case. This is also the
abstract, general legal principle that will be applied to all future cases
involving this issue, using this case as a precedent, and it is important to
understand under what factual circumstances the rule applies. Often the
court will usually explain why the rule is being created or applied, such as
the origin of the rule, or the policy behind the rule existing, and also will
often explain why any alternative rules proposed by the parties or the
dissenting justices are being rejected. Here the court usually looks at the
words of a constitutional or statutory provision, the original intent behind
that law, and public policy arguments. These are not the rule itself, but the
explanation of, or justification for, the rule. You must quote precisely the actual
rule itself (but not the explanation for the rule) that the court finally adopts
and decides to apply; the actual wording of the rule itself is known as the
“black letter law.” The rule itself must be quoted because every word

82
 matters: there is a huge difference between “a” and “the” or between “may”
and “must” etc. But the justification for the rule should be primarily in your
own words.

B. Application: How does the rule of law specifically apply given the specific
facts of the case at issue? In other words, given the rule of law that should
apply, which party wins according to that rule given the facts of the case
being heard? The reasoning of the court here should consider the facts of
the case, and might analogize or distinguish the facts of the current case to
the facts of earlier similar or related cases. You should explain all this in
your own words, quoting only an occasional word or phrase.

C. Concurring Opinion(s) Reasoning: What is the reasoning of each separate

concurrence (justices who agreed with the majority’s holding but disagreed
with the majority’s reasoning)? How do they differ in their proposed rule
or application (or both)?

Dissenting Opinion(s) Reasoning: What is the reasoning of each separate dissent

(justices who disagreed with both the majority’s holding and its reasoning)? How do
they differ in their proposed rule or application (or both)?

Activity: Use the above model and write a case briefing on:

1. Reyland V. Fletchers
2. Naz Foundation V. Government of NCT of Delhi

Answer the following questions:

83
Q.1. Explain the importance of reports and journals in legal research.

84
Q.2. What are the different parts of a statute?

85
Q.3.Ritam wants to conduct Legal Research on“Evolution of Contract Law in India
”. Guide him whether he can conduct Doctrinal or
Non-Doctrinal Research with reasons and relevance.

Q5. Report writing:

86
Topics would be distributed in the class after completion of the module.

_______________________________________________________________
REMARKS
_______________________________________________________________

87
88
 UNIT- 4
READING AND ANALYSIS OF JUDGMENTS AND
STATUTES

89
Learning Objective: On completion of this Unit, students will be able to read and
analyse judgments in order to understand the principles laid down in them and to
read and interpret statutes using different aids.
Topics:

1.Reading and analysis of various landmark judgements in Constitutional Law,

2. Criminal Law and the Law of Torts;

3. FILAC and IRAC methods;

4. Reading and Understanding of Statutes- Aids to the interpretation of Statute

(Internal and External Aids).

List of landmark cases:

1. Champakam Dorairajan Vs State of Madras.

2. K.M. Nanavati Vs State of Maharashtra.
3. Golaknath Vs State of Punjab.
4. Madhav Jiwaji Rao Scindia Vs Union of India.
5. Indira Gandhi Vs Raj Narain
6. A.D.M. Jabalpur Vs S. Shukla
7. Maneka Gandhi Vs Union of India
8. Minerva Mills Vs Union of India
9. Ramesh Dalal Vs Union of India
10. Rajan Case
11. Kehar SinghVsDelhi Administration
12. Babri Masjid, Ayodhya Case
13. Best Bakery Case
14. Shah Bano Case
15. Indira Sawhney Vs Union of India
16. St. Stephen's College Vs University of Delhi
17. S.R. Bommai Vs Union of India
18. R. Rajagopal Vs State of Tamil Nadu
19. P.A. Inamdar Vs State of Maharashtra
20. Sarla Mudgal Vs Union of India
21. Jamaat-e-Islami Hind Vs Union of India
22. Ministry of I&B Vs Cricket Association of Bengal
23. Vishaka Vs State of Rajasthan
24. Samatha Vs State of AP
25. Rupan Deol Bajaj Vs K. P. S. Gill
26. Representation of the People (Amendment) Act

90
27. Tamil Nadu Vs Suhas Katti
28. Om Prakash Vs Dil Bahar.

Law of Torts and criminal law:

The word ‘tort’ s derived from the Latin tortus, meaning ‘twisted’. It came to
mean ‘wrong’ and it is still so used in French: ‘J’ ai ‘tort’; ‘I am wrong’. In
English, the word ‘tort’ has a purely technical legal meaning- a legal wrong
for which the law provides a remedy.
In order to understand what tort law involves, it is necessary to distinguish
tort from other branches of the law, and in so doing to discover how the aims
of tort differ from the aims of law such as contract law or criminal law.
In order to differentiate tort from criminal law, let us take the help of an
example:
Case of road accident may give may give rise both to criminal prosecutions
and to tort actions. Tort, as part of civil law, is concerned with claims by
private individuals against other individuals or legal person. Criminal law is
concerned with prosecutions brought on behalf of the state for breaches of
duties imposed upon individuals for the protection the society. Criminal
prosecutions are dealt with by the criminal court and the standard of proof is
more stringent than in civil cases. The consequences of finding a criminal
guilt may be regarded as more serious for the individual concerned than the
consequences of civil liability.
Both areas of law are concerned with the breach of duties imposed by law,
but the criminal law has different priorities. It is concerned with the
protection of society by deterring wrongful behaviour. It is also concerned
with the punishments of criminals
These concerns may also be found in tort, but are secondary to the main
objective. A motorist who is speeding is far more likely to be worried about
being caught by the police than being sued by a person whom he may happen
to injure if he is negligent. Nevertheless, tort does have some deterrent value.
For example, motorist who have been negligent have to pay higher insurance
premium.
To complicate matters, criminal law does make some provisions for
compensating victims I some cases but this is not the main objective of the
criminal law.
Similarities and differences may be found between tort and criminal law, and,
at the very least, Winfield’s definition should have made clear that tort is
branch of civil law to be distinguished from criminal law.

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FILAC Method

To brief the cases properly, the student must use FILAC.

FILAC-FACTS, ISSUE, LAW, ANALYSIS CONCLUSION:

FACTS-The facts describe the events that led to the controversy in question. All that
is required is a brief statement of the acts, physical events, and other matters that
caused the parties to seek relief from the judicial systems. Should be no more than
six sentences.

ISSUE: This issue is the reason why the parties are in court. It is a one sentence
statement followed by a question mark. The issue is what the court must answer in
granting or denying relief. LAW: In reaching a decision, the court must apply the
law. In each case, the student must find the applicable law. In a full text case, the
law will be explicitly stated. However, in the text, these are partially briefed cases
and sometimes the authors omit the law. In this instance, please refer to the
preceding section to find the law. Remember, when reading a case there will be
references to other cases, principles. However, the cases and other references in the
case assist the court in applying the law. Remember, write the applicable law (code,
constitutional provision, treaty etc.

ANALYSIS: The analysis is the application of the facts to the law in deciding the
case. The analysis will include the court’s rationale in deciding the case. The
analysis will include
a review of cases, distinguishing past cases from the current case,
acknowledgement that a certain case is applicable and is the governing principle in
applying the law. Think of an analysis as where the court combines the facts to the
law to reach a conclusion. This section should be no more than five or six sentences.

CONCLUSION: The conclusion is only who won the case. In many instances the
case has been appealed and the original plaintiff is now the defendant and the
original defendant is the plaintiff. Remember, determine which court you are in
(superior, appellate, supreme) and if it is the appellate court, determine who the
original plaintiff was and whether the case has been appealed.

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IRAC method
How to Brief a Case Using the “IRAC” Method When briefing a case, the main goal
is to reduce the information from the case into a format that would provide a
helpful reference for review.

Most importantly, by “briefing” a case, you will grasp the problem the court faced

(the issue); the relevant law the court used to solve it

(the rule); how the court applied the rule to the facts

(the application or “analysis”); and

the outcome (the conclusion). You will then be ready to not only discuss the case,
but to compare and contrast it to other cases involving a similar issue.

Before attempting to “brief” a case, read the case at least once. Follow the “IRAC”
method in briefing cases:

Facts: Write a brief summary of the facts as the court found them to be. Eliminate
facts that are not relevant to the court’s analysis. For example, a business’s street
address is probably not relevant to the court’s decision of the issue of whether the
business that sold a defective product is liable for the resulting injuries to the
plaintiff. However, suppose a customer who was assaulted as she left its store is
suing the business. The customer claims that her injuries were the reasonably
foreseeable result of the business’s failure to provide security patrols. If the
business is located in an upscale neighbourhood, then perhaps it could argue that
its failure to provide security patrols is reasonable. If the business is located in a
crime-ridden area, then perhaps the customer is right. Instead of including the
street address in the case brief, you may want to simply describe the type of
neighbourhood in which it is located. (Note: the time of day would be another
relevant factor in this case, among others).

Procedural History: What court authored the opinion: If a trial court issued the
decision, is it based on a trial, or motion for summary judgment, etc.? If an appellate
court issued the decision, how did the lower courts decide the case?

Issue : What is the question presented to the court? Usually, only one issue will be
discussed, but sometimes there will be more. What are the parties fighting about,
and what are they asking the court to decide? For example, in the case of the
assaulted customer, the issue for a trial court to decide might be whether the
business had a duty to the customer to provide security patrols. The answer to the
question will help to ultimately determine whether the business is liable for
negligently failing to provide security patrols, whether the defendant owed

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 plaintiff a duty of care, and what that duty of care is, are key issues in negligence
claims.

Rule(s): Determine what the relevant rules of law are that the court uses to make
its decision. These rules will be identified and discussed by the court. For example,
in the case of the assaulted customer, the relevant rule of law is that a property
owner’s duty to prevent harm to invitees is determined by balancing the
foreseeability of the harm against the burden of preventive measures. There may
be more than one relevant rule of law to a case: for example, in a negligence case in
which the defendant argues that the plaintiff assumed the risk of harm, the relevant
rules of law could be the elements of negligence, and the definition of “assumption
of risk” as a defences.

Don’t just simply list the cause of action, such as “negligence” as a rule of law: What
rule must the court apply to the facts to determine the outcome?

Application/Analysis: This may be the most important portion of the brief. The
court will have examined the facts in light of the rule, and probably considered all
“sides” and arguments presented to it. How courts apply the rule to the facts and
analyse the case must be understood in order to properly predict outcomes in
future cases involving the same issue. What does the court consider to be a relevant
fact given the rule of law? How does the court interpret the rule: for example, does
the court consider monetary costs of providing security patrols in weighing the
burden of preventive measures? Does the court imply that if a business is in a
dangerous area, then it should be willing to bear a higher cost for security? Resist
the temptation to merely repeat what the court said in analysing the facts: what
does it mean to you? Summarize the court’s rationale in your own words. If you
encounter a word that you do not know, use a dictionary to find its meaning.
Conclusion What was the final outcome of the case? In one or two sentences, state
the court’s ultimate finding. For example, the business did not owe the assaulted
customer a duty to provide security patrols.

Note: “Case briefing” is a skill that you will develop throughout the semester.

Reading and Understanding of Statues-

The process of ascertaining the meaning of the letters and expressions by the court is
called interpretation. The task of interpreting a statute is to ascertain the ‘the intention
of the parliament’ as can be gathered from the meaning of the word used. Statutes
seek to control the future by using broad terms of classes and categories. These are
man-made, there are inevitable mistakes or omission so that a measure of discretion
is imported into every decision as to whether a provision applies to a case in hand or
not. Nor do words have proper meaning. A word may bear the meaning put upon it

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by the user, that understood by the recipients, or that usual meaning. Although most
words do have an area agreed application they are also surrounded by a hinterland of
uncertainty, which is where disputes arise. Here comes the need arises for the
interpretation of statutes. The method by which the courts ascertain the meaning of
the language of a statute is called interpretation of enacted laws or statutes.
Interpretation is creative function of the court. There is no single set of rules of
statutory interpretation. Courts have laid down, indeed, not rigid rules, but principles
which have been found to afford some guidance when it is sought to ascertain the
intention of Parliament.

The literal rules:

Granted that the words have certain elasticity of meaning, the general rule remains
that the judges regard themselves as bound by the words of a statute when these
words clearly govern the situation before the court. The words must be applied with
nothing added and nothing taken away. More, precisely, the general principle is that
the court can neither extend the statute to a case not within its terms though perhaps
within its purpose nor curtail it by leaving out a case that the statute literally includes,
though it should not have.

The literal rule has often been criticised by writers. Blindly applied, it is a rule against
using intelligence in understanding language. Anyone who in ordinary life
interpreted words literally, being indifferent to what the speaker or writer meant,
would be regarded as a pendant, a mischief-maker or an eccentric. Applying the rule
also occasions difficulty. There could be both real and fancied ambiguity.

One practical reason for the literal rule is that judges have no wish to be accused of
making political judgements at variance with the purpose of parliament when it
passed the Act. this fear is sometime understandable, but not all statutes divide
parliament on party lines.

Other reasons advanced for the literal rule may be briefly answered. Many statutes
are passed by political bargaining and snap judgements of expediency; court can
rarely be sure that Parliament would have altered the wording if it had foreseen the
situation.

Lord Diplock says that there may be differences of opinions to what is expedient, just
and moral, and that parliament’s opinion on these questions is paramount. This is
obviously true once parliament’s opinion is established. It is also true that
parliament’s opinion is ascertained primarily from raise serious from the word’s it has
used. Nevertheless, the facts of the case may be such as to raise serious doubts whether
Parliament intended its words to apply. The decision by a court that a particular

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situation was not intended to come within the ambit of a statute, though within its
words in what may be their most obvious meaning, does not deny the supremacy of
parliament, for if parliament disagrees with the decision it can pass another Act
dealing specifically with the type of case. However, the hard truth is that Parliament
generally pays little attention to the working of the law. It is not merely that
Parliament fails to keep old law under continuous revision; it loses interest in its new
creations as soon as they are on the statute book.

Purposive approach (mischief rule):

As from the above content it is very clear that the task of interpreting statute gives
judges the chance of expressing their own opinions as to social policy; and inevitably,
their opinions as to social policy; and inevitably, their opinions do not always
command universal assent. However, the judges are on fairly safe ground if they
apply the mischief rule, otherwise known as the rule applied in Heydon’s case. This
bids them to look t the common law (i.e. the legal position) before the Act, and the
mischief that the statute was intended to o remedy. The Act is then to be construed in
such a way as to suppress the mischief and advance the remedy. This approach to the
reading of statutes is an early example of what is now commonly referred to as a
“purposive approach”, which goes rather wider than merely ascertaining the
mischief.

According to Lord Nicholls, nowadays the court looks at the external aids for more
than merely identifying the mischief the statute is intended to cure. In adopting a
purposive approach to the interpretation of statutory language, courts seek to identify
and give effect to the purpose of the legislation. To the extent that extraneous material
assists in identifying the purpose of the legislation, it is a useful tool.

So stated, the purposive approach is rather wider than the mischief rule, since it does
not suppose (as the older rule does) that all statutes are passed for the purpose of
remedying a mischief, as opposed to promoting some social good or purpose. In
recent years the purposive approach has supplanted both the literal rule and the
mischief rule as the proper approach to the ascertainment of Parliament’s will.

Interpretation to avoid absurdity: Golden rule:

The courts sometimes allow themselves to construe a statute in such a way as to

produce a reasonable result, even though it involves departing from the prima facie
meaning of the words. The rule that a statute may be construed to avoid absurdity is
conveniently called as ‘the golden rule’. It is by no means unlimited, and seems to
apply only in three types of case.

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The golden rule allows the court to prefer a sensible meaning to an absurd meaning,
where both are linguistically possible. It does not matter that the absurd meaning is
more natural and obvious meaning of the words.

Lord Reid’s views: Where a statutory provision on one interpretation brings about a
startling and inequitable result, this may lead the court to seek another possible
interpretation which will do better justice.

On another occasion he was of the view that, it is only where the words are absolutely
incapable of a construction which will accord with the apparent intention of the
provision and will avoid a wholly unreasonable result that the words of the enactment
must prevail.

This application of the golden rule does not contradict the literal rule, provided that
the absurdity of the particular proposed application of the statute is conceded to be a
reason for finding an ambiguity in it. If one accepts the golden rule, this involves
rejecting lord Diplock’s opinion that the inexpediency, injustice or immorality of the
proposed application of the statute cannot in itself be a reason for finding an
ambiguity in the statute. According to the golden rule it can be a powerful motivating
force leading the court to detect such an ambiguity.

It is frequently said that the question of absurdity cannot influence a decision in any
type of case except the one just stated nevertheless, the courts sometimes act on a
second principle, stated by Cross as follows:

“the judge may read in words which he considers to necessarily implied by words
which are already in the statute, he has limited power to add to, alter or ignore
statutory words in order to prevent a provision from being unintelligible or absurd or
totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.”

Acting on the principle judges have occasionally corrected a statute that foolishly said
“and” when it meant “or”, or that foolishly said “or” when it meant “and”. However,
the argument must be very strong to induce the court to meddle with a statute.
Instances occur where the courts feel obliged to construe a statute in a way that they
themselves acknowledge creates outrageous injustice.

Presumptions :

In interpreting statutes, various presumptions may be applied, most of which are of a

negative or restrictive character, they are the back-ground of legal principles against
which the Act is viewed, and in the light of which Parliament is assumed to have
legislated, without being expected to express them. Some embody traditional notions
of justice, such as the rule that a state is presumed not to be retrospective (except in
procedural matters). Others reflect what was almost certainly the intention of
Parliament, as that an Act applies only to the United Kingdom unless the contrary is

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expressed. The most controversial presumptions are those enshrining the values of a
capitalist society-the presumption against interference with vested rights, the
presumption against the taking of property without compensation, and the
presumption against interference with contract. The last of these now has few
followers, but the first two still retain vitality. Even so, the judges are hampered by
the thought that they must not run counter to political trends, for example by implying
a right to full compensation for the appropriation of property when a legislature
(acting for reasons of wealth redistribution) did not in terms provide for such
compensation. The traditional presumption upon which a clear consensus still exists
is that against interference with personal liberty.

Presumptions may be regarded as instances of the proposition that the duty of the
judges goes beyond the automatic enforcement of the dictates of the parliament. The
judge’s function is also to do justice in accordance with certain settled principles of
law in a free society; and they are entitled to assume that parliament does not intend
to subvert these principles; unless there is a clear statement that it does. For these
reason the courts apply the rule that when Parliament has conferred a judicial or
quasi-judicial power upon a person, that power must be exercised in accordance with
the rules of natural justice. When parliament creates a new crime, this is presumed to
be subject to certain defences at common law, such as self-defence and duress, and
also very frequently to the requirement of a state of mind (intention, knowledge or
recklessness). These are judge-made principles required by our ideas justice and
grafted on the statute by implication although there may be no words in the statute to
suggest them. The common law provides quite an armoury of such principles and
new applications can be found for them by bold judge.

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Activity and questions:
Q1. Use FILAC method to read and analysis anyone one the cases mentioned above
in the module. Write a case note on that particular case. (For this activity, the class
would divided into groups and cases would be prescribed by the teacher).

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Q2. Use IRAC method to read and analysis anyone one the cases mentioned
above in the module. Write a case note on that particular case. (For this activity,
the class would be divided into groups and cases would be prescribed by the
teacher).

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Q.3. What could be the possible relationship between law reporting and the
Doctrine of precedent?

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Q.4. What are the differences between criminal law and tort?

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Q.5. Explain the use of online databases and eresources in legal research.

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______________________________________________________________

Remarks
_______________________________________________________________

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Marks Awarded

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