LM Final Term Notes

Rishabh Jain, BBA-LLB(A)
LEGAL METHODS NOTES FINAL SEM

SPELUNCEAN EXPLORERS-
Natural law – Natural law is a philosophical and ethical concept that suggests there is a set of fundamental
principles or moral rules that govern human nature and are inherent in nature. These principles are
considered to be universal and unchanging, providing a basis for ethical reasoning and guiding decent
human conduct. This enables us to say that the principles of natural law can be found through human
reason and common sense.
Critiques of Natural Law-
1. Moral truths/propositions can not be logically determined from factual truths/propositions.

2. Lack of agreement on Natural Law, critiques argue that there is no universally agreed upon set of
natural laws.
3. Natural Law theories often have strong ties with religious/cultural beliefs.
4. Natural Laws are highly subjective and open to interpretations.
5. Natural Laws at times conflict with the principles of positive law.
6. Natural Laws are based on certain assumptions, which means the claim that moral truths are
derived from pure reason is very disputable.
7. Legal disputes can be settled whereas moral disputes/NL disputes always remain open.
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Positive Laws – Positive law refers to laws that have been enacted or formally established by a recognized
authority, such as a legislative body. Unlike natural law, which is derived from universal principles, positive
laws are man-made and are specific to particular societies or legal systems.
CRITIQUES OF POSITIVE LAW-
1. Critics argue that just because a law is established by a legitimate authority does not make it
morally right.
2. The universality of legal principles is not present in positive law because it varies from place to
place.
3. Positive laws can be rigid or slow to societal changes.
4. Positive and legislative laws can take time to respond to emerging issues.
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IMPERATIVE LAWS- The term imperative law refers to laws that prescribe certain actions or behaviors and
are backed by penalties for non-compliance.
CRITIQUES OF IMPERATIVE LAW-
1. The issue of Law’s need to have moral legitimacy ignored.

2. If the law Is always the sovereign’s command, then what about laws like Int. Law that does not
originate from a sovereign command. Can they be referred as mere positive morality.
3. Imperative laws may put too much emphasis on punishment instead of rehabilitation.
4. Imperative laws are often criticized for lack of flexibility.
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LEGAL REALISM – Legal realism challenges traditional views of the law, particularly the idea that legal
decisions are purely based on neutral and objective application of legal rules. Instead, legal realism focuses
on a variety of factors. Legal realism does not represent a single unified theory but rather a set of diverse
perspectives within legal philosophy.
1. Legal realists argue that decisions are influenced by a variety of non-legal factors, such as the
judge’s personal belief, social context, etc, and that a judge must look beyond the law to make an
informed decision.
2. Legal realists argue the importance of considering social and economic factors under which legal
issues arise.
CRITIQUES OF LEGAL REALISM-
1. Legal realism in decision-making might affect the consistency of legal outcomes and may even
undermine the rule of law.
2. Critiques explain that legal realism might open the doors to judicial activism wide open and the
decisions might be affected by the judge’s personal bias.
3. The role of judges in legal realism in decision-making might overlook other legal actors such as
legislators, legal scholars and other legal institutions.
COMMON LAW AND CIVIL LAW TRADITIONS

COMMON LAW-
1. Common law is generally uncodified, which means there’s no compilation of legal rules.
2. Common law relies on scattered statutes and precedents, meaning the judicial decisions that have
already been made in similar cases.
3. The precedents to be applied in the decision of each new case are determined by the presiding
judge. As a result, judges have an enormous role in shaping American and British law.
4. A judge decides the appropriate decision according to the facts of the case and the jury’s verdict.
5. PROS – The role of judges is very flexible and the decision-making is comprehensive and can
change according to the changing societal norms.
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CIVIL LAW-
1. Civil Law, in contrast, is codified, which means there are applicable procedures for each offense,
found in legal codes and statutes.
2. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions
of the applicable code.
3. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators
and legal scholars who draft and interpret the codes.
4. PROS – Uniform and accessible.
STATUTES:
1. Statutes are the paramount source of law in both civilian and common law jurisdictions. But there
the similarities superficially end. For while in civilian systems codes – complemented by statutes –
form the core of the law, and jurisprudence plays only a secondary role, in common law
jurisdictions case law is the backbone of the system, and statutes apply only in certain areas.
2. Both codes and statutes within civil law systems make extensive use of definitions and
classifications, and they offer a highly systematic and exhaustive overview of the law.
3. Statutes in common law systems, on the other hand, address only selective areas of the law, but
they normally cover these areas in depth. Moreover, since statutes in common law systems are
often quite technical, it can be difficult to understand the law without recourse to other materials.
For this reason, statutes in common law jurisdictions can initially strike the civilian as being
extremely detailed but at the same time incomplete as an explanation or description of the
relevant area of law.
4. In introducing the common law to civilians it is therefore necessary to impart the concept that
statutes within a common law system are not supposed to be read alone and that they are part of
a bigger picture. A civil lawyer will therefore be discouraged from trying to read the whole of a
statute to gain an overall understanding of the area of law as he might do with a civil code. Instead,
he will be trained to use texts and other explanatory materials to assist in his understanding of the
applicable area of law, and he will be encouraged to focus on the part or parts of the statute which
are relevant to the issue before him.
JURISPRUDENCE:
1. Perhaps the most striking aspect of the common law system lies in the hugely influential role of
judges.
2. In common law systems, however, judges play a pivotal role, moulding and changing the law
through case-by-case development. This inherently flexible and efficient system allows for a timely
and relevant response to the changing requirements of society and the formulation of detailed
provisions to cater for developing areas of law.
3. The first response of many civil lawyers is to see judge-made law as somewhat inefficient, given
that the development of the common law is dependent on particular fact patterns coming before
the courts. Although in time many come to appreciate the benefits of a system which provides for
response to changing social circumstances, some are never converted to the system and find its
fluidity, and the inevitable gaps in the law to which it gives rise, incompatible with their idea that
law must be predictable and certain.
4. In fact, the extent to which certainty is valued in both the civil law and common law traditions is
what really lies at the heart of the differences between them.
5. Certainty is achieved through the rules of stare decisis, or binding precedent.3 The rules of stare
decisis – under which a lower court must follow decisions of courts above it in the judicial
hierarchy, thus preventing a multiplicity of inconsistent rules developing in any given area – are
fundamental to the common law system. Under the rules of stare decisis only the ratio of a case –
i.e., the decision on the facts, is binding. Obiter dicta – i.e., observations which are not crucial to
the decision, are not binding, even if they are statements by the most eminent judges in the
highest courts
6. The process is complicated by the fact that in common law systems, all decisions of higher courts
contain multiple judgments, and judges often give separate judgments even when they agree on
the outcome. Moreover, because it is often difficult to determine the precise ratio of a previous
decision, judges in subsequent cases frequently distinguish (and thus treat as not binding)
authorities which might appear to other lawyers to be on point. To a civilian, these aspects of the
common law can be a source of frustration and consternation.
ROHIT DE
1. The Indian constitution was made by Indians, unlike former British colonies like Kenya & Malaysia.
2. Indian leaders were able to agree upon a constitution, unlike Pakistan and Israel.
3. The Indian constitution is the longest-surviving constitution in the post-colonial world.
4. The Constitution is based on the desirability of the rule of law rather than the arbitrary rule of
men, but both seem to exist simultaneously in India. The SC is the most powerful constitutional
court that exercises wide powers of judicial review, on the other hand, Corruption, expense, and
chronic delays have been endemic to the legal system.
5. Neoliberalism and globalization lead to a greater dispersal of governance and fragmentation of
authority granting law a greater communicative force.
6. The institution of adult suffrage and the institutionalization of the social revolution are the markers
of radical change in the Indian Constitution.
7. The DPSP incorporated a wide range of constitutional aspirations, from economic questions to
moral precepts. It also linked freedom to the removal of socio-economic disparities.
8. Mangu’s story was a metaphor for independence and the constitution as a “spectacle of
emancipation. That is the gap between the vision of emancipation that the law promises and the
reality of violence that the law performs.
9. Critics argue that the Constitution had its roots attached to the colonial laws and that it was made
in slavish imitation of Western constitutions.
10. The power granted to the state and high courts was widened after they were empowered to issue
writs against the state for the violation of fundamental, legal or any other rights.
11. Before the constitution, only Calcutta, Bombay and Madras high courts had the power to issue
writs.
WRITS IN INDIA
1. Habeas Corpus- to have the body; prevent unlawful detention

2. Quo Warranto- by what authority; prevent unlawful establishment of authority and usurping
(take illegally or by force) of public office
3. Prohibition- forbid lower courts from exercising some power not within their jurisdiction
4. Certiorari- writ for re-examination of a decision of a lower court by a higher court
5. Mandamus- commanding of a lower authority by higher authority to perform some particular
act
KM NANAVATI CASE-
Facts-
1. Appellant, Kawas Manekshaw Nanavati, a commander in the Indian Navy was charged for the
murder of deceased Prem Ahuja under sections 302 and 304, part 1 of IPC. When the appellant
was away for his work, his wife, Sylvia, nurtured an illicit relationship with Mr. Ahuja, a friend of
Nanavati.
2. ➢ On 27th April 1959, Nanavati returned from one of his voyages. Coming home he sensed a
difference in his wife’s behavior, to which Sylvia confessed about her affair with Ahuja. That
evening, Nanavati dropped Sylvia (wife) and their two children at a cinema hall and went to
confront Ahuja.
3. ➢ He first went to his ship, collected his pistol on a false pretext from the stores along with six
bullets, completed his official duties, and continued for Prem Ahuja’s office. On not finding him
there, he made his way to Ahuja’s home where he found Ahuja. There was a verbal confrontation
between the two men. After the confrontation, there was an altercation after which three shots
were fired and Prem Ahuja dropped dead. Nanavati headed straight to confess to the Provost
Marshal of the Western Naval Command and later turned himself over to the Deputy
Commissioner of Police.
4. ➢ The jury found him not guilty of murder which did not find favour with the Sessions Judge and
he referred the case to Bombay High Court. The Bombay High Court dismissed the Jury’s decision
and convicted Nanavati under sections 302 and 304 Part 1 of IPC.
ISSUE- Whether Nanavati shot Ahuja in the “heat of the moment” or whether it was a premeditated
murder that will determine the conviction of Nanavati?
ARGUMENT BY THE APPELLANT-
The contention put forth by the counsel of Nanavati was the following:
➢ That after hearing Sylvia’s confession, Nanavati wanted to kill himself, but Sylvia managed to calm him
down. Sylvia did not tell him whether Ahuja wanted to marry her or not, he intended to find it out himself.
So, he dropped his wife and two children at the cinema hall and drove his car to his ship, as he wanted to
get medicine for his sick dog.
➢ He represented to the authorities in the ship, that he wanted to draw a revolver and six rounds from the
stores of the ship as he was going to drive alone to Ahmednagar by night, though the real purpose was to
shoot himself.
➢ On receiving the revolver and six cartridges, drove his car to Ahuja’s office, and not finding him there,
drove to Ahuja’s flat which was opened by a servant, walked into Ahuja’s bedroom with the envelope
containing the revolver.
➢ The accused saw the deceased inside the bedroom, called him a filthy swine, and asked him whether
he would marry Sylvia and look after the children. The deceased retorted, “Am I to marry every woman I
sleep with?” The accused became enraged, put the envelope containing the revolver on a cabinet nearby,
and threatened to thrash the deceased.
➢ The deceased made a sudden move to grasp at the envelope when the accused whipped out his
revolver and told him to get back. A struggle ensued between the two and during that struggle, two shots
went off accidentally and hit Ahuja resulting in his death. After the shooting, the accused went back to his
car and drove it to the police station where he surrendered himself. Hence the accused shot at the
deceased under grave and sudden provocation, and therefore even if he had committed.
ARGUMENT BY THE RESPONDENT-

➢The first contention raised was that Ahuja had just come out of the shower wearing a towel. When his
body was discovered, his towel was still intact on his body. It had neither loosened nor fallen off which was
highly improbable in case of a scuffle.
➢And that as per Sylvia’s confession, a calm and collected Nanavati took them to a movie hall, dropped
them there, and then went to his shop to retrieve his pistol, under a false pretext. This shows he had
enough cooling time and provocation was neither grave nor sudden and that Nanavati had planned the
murder.
➢The Respondents also submitted that according to the testimony of Ahuja’s servant, Anjani, who was
present at the house during the occurrence of the incident testified that there were four shots
consecutively in quick succession and the entire event occurred in less than a minute thereby ruling out
scuffle.
➢Nanavati walked out of Ahuja’s residence, without explaining to his sister Mamie, who was present in
another room of the flat that it was an accident. The deputy commissioner of police testified that Nanavati
confessed that he had shot dead Ahuja and even corrected the misspelling of his name in the police record
thereby showing Nanavati was not dazed.
JUDGEMENT- The Supreme Court upheld that this was a clear case of premeditated murder and concurred
with the decision of the High Court and sentenced him to life imprisonment for culpable homicide
amounting to murder.
INTRODUCTION TO THE INDIAN CRIMINAL JUSTICE SYSTEM-

THE LEGAL SYSTEM-
1. The Constitution of India provides for a federal system, in which legislative powers are divided
between the central, state, and local governments. Article 246 read with Schedule VII to the
Constitution, demarcates legislative powers between the centre and the states.
2. Schedule VII consists of three lists – the ‘Union List’, the ‘State List’, and the ‘Concurrent List’.
3. The Supreme Court of India sits at the apex of the judicial system. High Courts are at the apex of
the state judiciary, below which are a set of subordinate courts in the districts.
4. One major distinction between India and other common law countries is that India does not follow
the jury system.
5. Judges in the Supreme Court and the High Courts generally sit in panels of two or more (depending
on the nature of the case) and do not sit En Banc.
6. In the Supreme Court and the High Courts, the Chief Justice constitutes panels of judges to hear
cases in a particular area of law is referred to as the ‘roster’.
LEGISLATIVE FRAMEWORK – CJ SYSTEM-
1. India has two major codes dealing with criminal law: e Indian Penal Code of 1860 and the Code of
Criminal Procedure of 1973. IPC deals with substantive criminal law and the CrPC consolidates the
law relating to criminal procedure
2. Indian Evidence Act of 1872 consolidates and defines the law of evidence. There are also a large
number of specialized legislations which address offences that are not dealt with by the IPC. These
include the Narcotic Drugs and Psychotropic Substances Act of 1985 (which criminalizes possession
and sale of narcotic drugs), e Prevention of Food Adulteration Act of 1954 (which criminalizes
adulteration of food products), e Unlawful Activities (Prevention) Act of 2008 (which deals inter
alia with terrorism), e Prevention of Corruption Act of 1988 (which deals with corruption in the
public sector).
CRIMINAL COURTS –
1. The magistrates’ courts are the first and lowest tier of criminal courts in India above which in
hierarchy is the Sessions’ court. Each of these courts is presided over by a sessions judge. Each
district generally has one such court. Trials are conducted in either a magistrate’s court or a
Sessions Court, depending on the severity of the offence.
2. First Schedule to the CrPC delineates whether the offense is to be tried by a magistrate’s court or a
Sessions Court. Cases are generally tried by a court within whose local jurisdiction the offense was
committed.
CRIMINAL PROCESS
PRE-TRIAL-
1. The CrPC. classifies offenses as either ‘cognizable’ or ‘non-cognizable’ offenses. The more serious
offenses are cognizable. In these offenses, the police are authorized to conduct investigations
without the permission of a magistrate and to arrest a suspect without obtaining a warrant.
2. The criminal process is generally initiated by the ling of a ‘First Information Report’ (FIR).
3. Once the investigation is complete, the police are required to file a report with a magistrate, who
takes cognizance of it. This report, is colloquially called a ‘charge-sheet’.
4. After taking cognizance of the offense, the magistrate forwards the case to the court which has
jurisdiction to try it.
5. The trial court then begins the process of framing charges against the defendant, which is the first
step of the trial process.
LAW RELATING TO ARREST-
1. A police officer can arrest a person either after obtaining a warrant of arrest from a magistrate or
without obtaining one. A person can be arrested by a police officer without a warrant under 10
circumstances. Two of these are relevant for our purposes: First, if the person commits a
cognizable offense in the presence of the police officer, or second if the police officer receives
‘credible’ information that the person has committed a cognizable offense punishable with
imprisonment for a term exceeding 7 years or with death, and the police officer has ‘reason to
believe’ that the person has committed the offense.
2. Once a person has been arrested, he has to be produced before a magistrate within 24 hours.
3. The maximum period of pre-trial detention (if a charge sheet has not been filed) is 60 days. It can
extend to a maximum of 90 days if the offense is punishable with death, imprisonment for life, or
imprisonment for more than 10 years.
BAIL-
1. The CrPC bifurcates offenses into ‘bailable’ and ‘non-bailable’ offenses. In case of bailable offenses,
bail is a matter of right.
2. First, the person shall not be released if there appear reasonable grounds for believing that he is
guilty of committing an offense that is punishable with death or imprisonment for life. The second
condition in which bail is prohibited is if the person has been arrested for committing a cognizable
offense and has been previously convicted for an offense punishable with death or imprisonment
for 7 years or more, or has been convicted on two or more occasions of an offense punishable with
imprisonment for 3 years or more.
3. The CrPC also mandates that if a charge sheet has not been filed within 60 or 90 days, the
defendant shall be released on bail, subject to his being prepared to furnish bail.
4. Sessions Courts and High Courts have broad powers and can grant bail for all offences, unlike the
magistrate’s court.
5. One or more sureties who will guarantee that the accused will a-end court when summoned might
also be required. Courts also often require accused persons to deposit land records with the court
registries, thereby ensuring that the accused persons do not abscond.
6. Recognizing these factors, Parliament added Section 436A to the CrPC (which came into force in
2006), which sets a maximum period for which a person may be detained during investigation,
inquiry or trial. If a person has been in detention for one-half of the maximum period of
imprisonment specified for the offence that he is being investigated for/charged with, he shall be
released on his personal bond (recognizance), with or without sureties.
7. However, in the event that the person has already served out the maximum period of
imprisonment specified for the offence, he is required to be released immediately.
THE RIGHT TO COUNSEL AND FREE LEGAL AID-
1. Article 22(1) of the Constitution of India guarantees a person the fundamental right to consult and
be defended by counsel of his choice. is right has also been codified in Section 303 of the CrPC.
2. If the defendant does not have the resources to engage a counsel of his choice, the State is under
an obligation to provide him with free legal representation.
3. Ineffective assistance of counsel is not a ground on the basis of which a conviction can be
overturned.
THE TRIAL PROCESS-
1. The trial process begins with the framing of charges. A session's trial begins with the prosecutor
making an opening statement.
2. The defence is given the opportunity to rebut the same. After hearing the two sides, if a prima
facie case is made, the judge frames charges; alternatively, if such a case has not been made, the
judge discharges the defendant.
3. After the forming of the charges, the judge asks the defendant whether he pleads guilty or not.
4. The trial begins with the prosecution presenting all its evidence. The defence has the right to cross-
examine the prosecution’s witnesses.
5. Once the prosecution rests, the defendant is questioned (not under oath) on the evidence that
implicates him and is given an opportunity to explain the same. He can also give false answers and
will not be liable for prosecution
6. If the defendant is not acquitted at this stage, the court calls upon him to enter his defense. The
defendant has the option of calling witnesses who support his case. After hearing arguments of
both parties on facts and law, the court either convicts or acquits the defendant.
SENTENCING PHASE OF THE TRIAL-
1. The CrPC specifically provides for a separate phase for sentencing.

2. Both the prosecution and the defense can place evidence before the court, relating to factors that
are relevant for sentencing. Hearing on sentence is mandatory and a sentence imposed without
following the procedure will be vacated on appeal. After hearing the parties, the court pronounces
the sentence imposed on the offender.
3. The IPC provides for 5 types of punishments that a court can impose- Death, life imprisonment,
imprisonment, forfeiture of property, and fine.
4. The CrPC empowers High Courts and Sessions Courts to impose any of these sentences, except
that if a death sentence is imposed by a Sessions Court, it has to be confirmed by its jurisdictional
High Court. A chief judicial magistrate may impose a sentence of not more than 7 years, a
magistrate of the first class may impose a sentence of not more than 3 years and a fine of not more
than 10,000 rupees, and a magistrate of the second class may impose a sentence of not more than
1 year or a fine not more than 5000 rupees.
5. The final judgment is pronounced in open court at the end of the sentencing hearing, which also
signifies the end of the trial. The judgment has to be reasoned and in writing.
6. The court has the discretion to order the release of a person on probation of good conduct or after
admonition if: (a) he/she is being convicted for an offense which is punishable with less than
7 years of imprisonment or a fine only or (b) if the defendant is less than 21 years of age or is a
woman who is convicted for an offense not punishable with death or imprisonment for life, and
he/she has no prior conviction.
7. The CrPC also empowers a court imposing a sentence of which a fine, to order that the entire
amount (or a part of it) be paid to the victim as compensation.
THE APPELLATE PROCESS-
1. Appeals from criminal cases are provided for by the Constitution of India, as well as by the CrPC.
2. Th CrPC. provides for the first appeal as a matter of right, from a trial verdict. In cases triable by a
magistrate, the first appeal against conviction lies to the Sessions Court; in cases triable by a
Sessions Court, the first appeal generally lies to the High Court.
3. Appeals are available against convictions (brought by the convicted person), against the sentence
on the ground of inadequacy (brought by the State or the victim), and against acquittals (brought
by the State or in very limited cases by the victim).
APPEALS AGAINST AQUITTALS-
1. The state (and in a limited situation, the victim/complainant) may file an appeal against an order of
acquittal.
2. In an appeal against an acquittal, the appellate court can re-assess the evidence de novo, and
come to a different conclusion on facts. Both questions of fact and law can be determined by the
appellate court.
3. The Supreme Court of India has provided various safeguards with respect to appeals of acquittals.
It has ruled that the accused starts with a double presumption in his favor: first the presumption of
innocence and second, that of having secured an acquittal. Further, the Court has held that an
appellate court must give due consideration and adequate weight to the trial judge’s assessment of
the credibility of witnesses. The appellate court should also be circumspect in overturning a finding
of fact of the trial court.
4. In an appeal against acquittal, the appellate court may reverse the order of acquittal and convict
the defendant. It can also direct that further inquiry be made or in the alternative, that the
defendant be re-tried.
5. The appellate court overturns an acquittal and finds the accused guilty, it can’t impose a sentence
greater than what the court which is competent to try the offense could’ve imposed.
6. A further safeguard that the CrPC. provides is that if a High Court (on appeal), reverses an order of
acquittal, convicts a person and sentences him to death, imprisonment for life or to imprisonment
for a term of 10 or more years, the convict has a right to appeal to the Supreme Court.
APPEALS FROM CONVICTIONS – APPEAL FOR ENHANCEMENT OF SENTENCE
1. In dealing with an appeal from conviction, the appellate court has the power to reverse the finding
and sentence of the subordinate court and acquit or discharge the defendant. It can also order a
re-trial. It further has the power to alter the finding, but maintain the sentence, or alter the nature
and/or the extent of the sentence imposed by the subordinate court, but it may not enhance the
sentence.
2. In an appeal for enhancement of sentence, the appellate court has the power to reverse the
finding and sentence imposed by the subordinate court and even to acquit or discharge the
convicted person. It can order a re-trial as well. e court is empowered to alter the finding of the
subordinate court, while maintaining the sentence imposed by it, and also alter the nature and
extent of the sentence imposed by the subordinate court, so as to enhance or reduce the same. It
is mandatory for the appellate court to provide an opportunity to the convicted person to argue
against the enhancement of a sentence.
SUSPENSION OF SENTENCE DURING APPEAL-
1. In appeals of convictions, the appellate court has the discretion to suspend the execution of the
sentence imposed and grant bail to the convict pending the decision of the appeal.
2. The Supreme Court has ruled that a decision by an appellate court to admit an appeal is in itself
recognition that the court believes that a prima facie case has been made for interference with the
decision of the subordinate court. It also ruled that the possibility that the case might not be heard
and disposed without delay would be a factor in suspending the sentence and granting bail. The
Court pointed out that in the event that the person is acquitted by the appellate court after
remaining in custody for a major part of the sentence, such acquittal would be rendered
meaningless, and would also be a travesty of justice. Considering the factors laid down by the
Supreme Court, it is clear that although courts have the discretion not to suspend the execution of
sentences pending appeal, more often than not they do suspend sentences. However, it is relevant
to note that the convict still must satisfy conditions of bail, which (as I have pointed out earlier)
tend to act as barriers in many cases.
APPEALS TO THE SC
The Constitution of India provides for an appeal from any judgment, final order or sentence imposed
by a High Court to the Supreme Court if the High Court certifies that the case is t for appeal to the
Supreme Court.
The Supreme Court also has the discretion to grant special leave to aggrieved parties to appeal to it
against any judgment, order or sentence of any court in India.
NICK ROBINSON- HIERARCHY OF COURTS
1. The top-heaviness of the Indian judiciary is striking, both in terms of the relative power of the
upper judiciary and the number of cases these courts hear in relation to the subordinate.
2. When writing the Indian Constitution the drafters emphasized that the upper judiciary should be
accessible to ordinary Indians, especially to enforce constitutional claims. They also wrote in
safeguards to protect the judiciary’s independence, giving Supreme Court and High Court judges a
prominent role in court administration and the appointment of judges. After independence, both
the accessibility and self-management of the upper judiciary have been further reinforced and
strengthened through legislative action and judicial interpretation.
3. This top-heavy system has arguably helped the upper judiciary become more actively involved in
large swathes of Indian political and social life. However, India’s disproportionate reliance on the
upper judiciary has also slowed and added uncertainty to decision making, contributing to the
Indian judicial system’s well-known underperformance on a range of measures from enforcing
contracts to the duration of pre-trial detention.
HIERARCHY OF COURTS-
1. On the face of it, the Indian Constitution organizes the country’s judicial system with a striking
unity. Appeals progress up a set of hierarchically organized courts, whose judges interpret law
under a single national constitution. Although States may pass their own laws, there are no
separate State constitutions, and the same set of courts interprets both State and national law. At
the top of the judicial system, there is a single Supreme Court
2. Each State in India has its own judicial service for the subordinate judiciary, and judges of the High
Court in a State are overwhelmingly selected from the State’s judicial service and the State High
Court’s practicing bar. At the same time, each State provides funds for the operation of its judiciary.
Since States in India are so socio-economically diverse, levels of funding for the judiciary can vary
considerably, as can the legal cultures, litigant profile, and governance capability of different States.
As a result, State judiciaries can perform strikingly differently in terms of professionalism, backlog,
and other measures of functioning and quality.
3. Although court proceedings are mostly in English in the upper judiciary, and the judgments always
are, in the subordinate judiciary proceedings are often in the local vernacular, while decisions are
in English.
4. The Constitution allows for litigants to directly petition the High Courts in constitutional matters, 5
and the Supreme Court if their fundamental rights are at stake, 6 although in recent years the
Supreme Court has encouraged litigants to first approach the High Courts to remedy fundamental
rights violations, except for cases of national importance.
5. Given the Constitution’s length and detail, along with the judiciary’s broad interpretation of it,
many administrative law and other types of cases are considered constitutional matters and
brought directly to the High Courts, further increasing the workload of the upper judiciary and
further sidelining the subordinate courts.
DESCRIPTION OF COURTS-
1. The Supreme Court sits in New Delhi. 9 The Chief Justice may also direct that judges of the Court
sit in other parts of the country with the approval of the President.
2. In 2014, there were twenty-four High Courts in India, which ranged in size from 160 sanctioned
judges in Allahabad to 3 in Sikkim. No State has more than one High Court, 11 but some High
Courts have jurisdiction over multiple States 12 and over Union Territories.
3. There are 640 districts in India, each with its own district court. 14 Additional sub-district courts
may operate at the block level.
4. First, the diagram makes a clear distinction between judges on the civil and criminal side at the
district level. In reality, a single judge will often wear both hats. For example, the top judge in the
administrative hierarchy in a district court is called a District and Sessions Court Judge, as she will
hear both civil and criminal matters.
5. There are also noteworthy differences between Figure 19.1 and the court structure in metropolitan
areas. In metropolitan areas the distinction between Judicial Magistrates of the first or second
class is absent and they are collectively referred to as Metropolitan Magistrates.
6. The judicial service in the subordinate judiciary in a State will generally be broken up between the
regular judicial service and the higher judicial service. District and Sessions Court Judges will be in
the more senior cadre, while civil judges and magistrates will be in the lower cadre. This distinction
proves pertinent not just because it demarcates seniority, but because members of the bar can be
recruited directly into the senior cadre if they have practiced as advocates for seven years or more.
7. In most States, original jurisdiction for both civil and criminal matters begins in the subordinate
courts. Under the Code of Criminal Procedure, which applies across India, a magistrate of the
second class may pass a sentence of imprisonment not exceeding a year, while a Chief Judicial
Magistrate can pass a sentence not exceeding seven years.
8. On the civil side, there is more State variation. Each State has a civil court act under which a judge
will have jurisdiction to hear a case depending on the monetary amount at stake in the suit. In the
States that were Presidency towns (Bombay, Calcutta, and Madras) and in New Delhi the High
Court maintains original jurisdiction in civil matters above a certain amount or that originate in the
old Presidency town itself. In the three Presidency towns, civil matters below such an amount are
heard by the ‘City Civil Courts’. Original jurisdiction civil matters in the Bombay, Calcutta, Madras,
and New Delhi High Courts are heard in different courtrooms to appellate matters, with High Court
judges rotating between these courtrooms and respective jurisdictions. All High Courts may also
exercise extraordinary civil or criminal original jurisdiction at their discretion.
9. District courts also frequently house family courts, juvenile courts, Central Bureau of Investigation
(CBI) courts, rent control courts, and other specialised courts created under specific legislation.
Judges from the regular judicial service cadre will be appointed to these postings.
10. Before Independence, district magistrates, then appointed by the executive, could both prosecute
and judge criminal matters in their district. One of the long-standing demands of the Indian
Independence movement was for the separation of these executive and judicial functions.
Embodying this promise, Article 50 of the Directive Principles of State Policy states that ‘The State
shall take steps to separate the judiciary from the executive in the public services of the State.’
However, it was not until the 1973 Code of Criminal Procedure that this commitment was brought
about by creating separate judicial magistrates. 25 Notably, even after 1973 there still are
‘executive magistrates’, who are drawn from the administrative, not the judicial, service whose
functions are administrative or executive in nature, such as the granting, suspension, or
cancellation of a licence, the hearing of a tax dispute, or the sanctioning of a prosecution. 26 For
instance, tehsildars, who are revenue administrative officers, collect taxes and set land boundaries
at the local level, as well as hear disputes related to these functions.
11. Finally, there has been a push over many decades to create a more informal justice system through
Lok Adalats 27 and alternative dispute resolution, as well as more local justice through Gram
Nyayalayas.
BACKLOG AND TOP-HEAVINESS-
1. The Indian courts are notoriously backlogged, with cases often taking years and sometimes
decades to resolve. Common explanations of backlog include a shortage of judges, poor judicial
management of cases, procedural complexity, a promiscuous system of appeal, and, on the
criminal side, the relatively rare use of plea-bargaining
2. This top-heaviness has seemingly increased in recent years. Between 2005 and 2011, the number
of cases disposed of by all the High Courts increased by about 33.4 percent. During the same
period, the number of cases that were appealed to the Supreme Court increased by 44.8 percent
and the number of cases the Court accepted for regular hearing increased by 74.5 percent.
3. Litigants seem to be bypassing the subordinate judiciary where possible, appealing to the Supreme
Court in greater numbers, and increasingly having those appeals accepted. This pattern seems to
indicate either a breakdown in precedent given by judges in the Supreme Court or precedent
following by judges in lower courts. The overall result is a judiciary whose caseload often looks
more like an isosceles trapezoid than a pyramid.
STARE DECISIS AND POLYVOCALITY-
1. Today, panels of two judges typically hear whether the Court should admit a case. This practice
occurs during admission hearings, which currently occur on Monday and Friday, during which a
single bench will commonly hear seventy or eighty matters. If a case is accepted for admission, it is
then heard during what is called a regular hearing.
2. Even when most of the Justices are in recess for much of May and all of June, a vacation bench sits
to hear pressing matters. To accommodate the increasing number of cases, Parliament increased
the maximum size of the Court from its original eight judges to eleven in 1956, fourteen in 1960,
seventeen in 1977, twenty-six in 1986, and finally to thirty-one judges in 2008.
3. The value of prioritising wide access to the Court, which has led to this multiplication of benches
and judges, has roots that are both idealistic and pragmatic. The Indian Constitution, and by
extension the judiciary, was charged with changing a country rooted in hierarchy into one that
internalised the liberal values of equality and due process for all its citizens.
4. The idea that anyone whose constitutional right has been violated can appear before a panel of
the Supreme Court to have their case heard has deep democratic resonance. It is a populist ideal
that carries added weight in a country wracked by sharp class, religious, caste, and ethnic divisions.
Wide access also has clear practical benefits. Accepting more cases for regular hearing allows the
Indian Supreme Court to actively police the High Courts, the subordinate judiciary, and the
assorted tribunals that have arisen since Independence.
5. Article 141 of the constitution compels other courts to follow supreme court’s rulings, but
considering multiple benches, referring to the SC as a singular entity can be misleading.
6. The Indian Supreme Court itself is not bound by its past precedent, but may overrule decisions that
are ‘plainly erroneous’ based on ‘changing times’.
7. Court should be cautious and that it should endeavour to create continuity and certainty in the
law. Statements that are not part of the ratio decidendi, or the principle upon which the case was
decided, are considered obiter dicta and are not authoritative or binding precedent. Similarly, a
judgment is not binding if it is made per incurium (based on ignorance of the terms of a statute or
related rules), sub-silentio (made without any argument or reference to the critical point of law), or
if the judgment is based on the consent of the opposing parties and they agree the judgment will
not be binding. A Supreme Court bench’s precedent is binding not just on the rest of the judiciary,
but also on smaller or equal-sized benches of the Court, making much of the typical work of a
Supreme Court judge resemble that of a High Court judge, unable to overrule previous Supreme
Court decisions.
8. The Chief Justice may independently place any matter before a bench of any strength. Since
overruling, or partially overruling, previous decisions requires ever more populated benches, large
bench decisions become increasingly entrenched. For example, Kesavananda Bharati v State of
Kerala (hereinafter Kesavananda Bharati) is a seminal decision that laid down the basic structure
doctrine, which allows the Court to strike down constitutional amendments if they violate a certain
judicially interpreted ‘Basic Structure’ of the Indian Constitution. Thirteen judges decided the case,
in part because the bench needed to overrule an earlier bench of eleven judges. If Kesavananda
Bharati is to be reconsidered, either in full or in part, a bench of fifteen judges is required or a
smaller bench must carefully reinterpret parts of Kesavananda Bharati while claiming to be in
compliance with the judgment.
9. Those who advocate for more five-judge benches by the Supreme Court argue that having such
benches would reduce confusion over precedent, increase the quality of decisions, is supported by
an intra-textual reading of the Constitution, and is in line with the founders’ vision. Yet, having
significantly more five-judge or larger benches would entail costs. The Court would need to either
add more judges, thereby creating even more possibility for contradictory precedent, or hear
fewer matters, which some fear would leave the Supreme Court less opportunity to correct erring
decisions of lower courts.
Judicial and Litigation Entrepreneurs and Chief Justice Dominance-
1. The distinctive structure of the Supreme Court allows for different types of relations between
judges, as well as the Court and litigants, impacting the Court’s jurisprudence as a result. For
example, the development of public interest litigation would have been far less likely without the
Court’s panel structure.
2. Litigation entrepreneurs from civil society who bring public interest litigation are also able to use
the Court’s structure to attempt to shop for benches, using procedural techniques to try (not
always successfully) to have their case heard by judges that may be more sympathetic to their
arguments.
3. When judges on smaller benches create innovations like certain types of public interest litigation, it
enters a feedback loop. The press, public, and bar react with favourable or unfavourable views. If
there is a largely favourable reception an expectation is created that other judges should follow a
similar line of reasoning. Letting smaller benches first experiment with new paths in jurisprudence
allows other benches of the Court to better understand the feasibility and real-world implications
of its judgments.
4. Having precedent more regularly reinterpreted through different Supreme Court benches may also
be a strength in a country where there is little national consensus on many political issues from
castebased reservations to environmental policy. The judges can use their discretion to navigate
the particularities of a specific case rather than try to impose a more cohesive jurisprudence. In
this way, the Court’s pluralistic polyvocality can be seen as a tool, conscious or not, to keep the law
and the Court as an open arbitrator between different social and political forces with divergent
views.
5. While the Indian Supreme Court’s polyvocality can seem almost anarchic, there are also forces that
help foster more cohesiveness. 64 As has already been mentioned, there are theoretically strong
precedent rules that oblige judges to at least be perceived as following the Court’s precedent. The
Chief Justice of India also plays an important role in unifying and policing the system. The Chief
Justice (who so far has only been male) selects which judges will sit together on panels.
6. The Chief Justice may also direct important cases to his own bench or other benches. Finally, he
chooses when to constitute five-judge or larger benches and who will be on them.
7. While Supreme Court judges, and in particular the Chief Justice, may seem to have considerable
discretionary power, this power is checked by the relatively short time they have on the Court.
8. The Chief Justice of India is appointed by the President, 67 but by tradition is the seniormost judge
on the Supreme Court, meaning that a typical Chief Justice is Chief Justice for just over a year.
MANAGEMENT OF COURTS-
1. To staff the subordinate courts, each State has its own judicial service that is chosen through
competitive examination.
2. The Governor of a State appoints the judges of the subordinate judiciary, but must do so by
consulting the High Court, and jurisprudence (see eg, MM Gupta v State of Jammu and Kashmir)
has made clear that the Governor must as a rule follow the High Court’s directions.
3. Article 227 gives the High Court superintendence over all courts and tribunals in its jurisdiction
(except military tribunals), allowing them to make rules for these courts and call for returns. The
High Courts control the posting, transfer, and promotion of judges in the subordinate judiciary in
their jurisdiction. A High Court can delegate some of these powers to an administrative committee
of judges, but decisions of appointment, promotion, and disciplining are done during sittings of the
entire High Court. The Chief Justice of the High Court is in charge of administering the bureaucracy
of the High Court, although in practice many of these duties are often delegated amongst the
Court’s most senior judges.
4. There has been a long-standing call for the creation of an All-India Judicial Service to staff the
subordinate judiciary but despite declared support from the Supreme Court and multiple Prime
Ministers this order has yet to be fulfilled, in part because of resistance by State governments as
well as State bar councils and members of the subordinate judiciary
5. The State government also plays an important role in administering the courts in the State. The law
minister of the State approves funding of the State judiciary, including for new posts and
infrastructure improvements. Traditionally, High Courts were at the centre of judicial power in
India and at Independence they were given a dominant role in administering the subordinate
courts in each State, while the Supreme Court was not provided with extensive powers to manage
either the High Courts or the judiciary more broadly. However, the Supreme Court through its own,
often wide, interpretation of the Constitution has subsequently provided for itself a pivotal, and
frequently trumping, role in governing the rest of the judiciary.
6. in All-India Judges Association v Union of India, the Supreme Court ordered that infrastructure and
amenities for the subordinate judiciary be improved, found that recruits to the judicial service
should have at least three years’ experience at the bar, and ordered the retirement age of the
subordinate judiciary to be raised to 60. In All-India Judges Association v Union Of India, the Court
partially reversed its earlier decision and found that recruits to the judicial service did not require
previous experience at the bar, as this had led to difficulty in recruiting qualified lawyers. The Court
also called on the government to increase the strength of the subordinate judiciary from ‘the
existing ratio of 10.5 or 13 per 10 lakhs people to 50 Judges for 10 lakh people’, as well as to
increase the judiciary’s pay scale.
7. The Supreme Court has indirect influence over the subordinate judiciary through its interaction
with High Court judges, particularly High Court Chief Justices, who often are eager to be appointed
to the Supreme Court.
8. Finally, the Supreme Court performs a coordinating and information role. It tracks the number of
instituted, disposed, and backlogged cases throughout the judicial system, the number of judicial
officers and vacant positions, and has been working to create a National Court Management
System to improve these information gathering and dissemination processes.
THE UPPER JUDICIARY-
1. Under the Constitution, to be appointed a Supreme Court judge one must be a High Court judge
for at least five years, an advocate at a High Court for at least ten years, or a distinguished jurist. 83
High Court judges must be High Court advocates with ten or more years of experience or judicial
officers of the subordinate judiciary with ten or more years of experience.
2. However, since 1983 there has been a policy of having the Chief Justice of each High Court be a
senior High Court judge transferred from another State to ensure greater independence from local
considerations.
3. While in the original constitutional text, it was the President who appointed Supreme Court and
High Court judges in consultation with the judiciary, starting in the 1980s the Supreme Court began
to have a controlling hand in appointments. Through its orders in what is collectively known as the
Three Judges Cases, the Court evolved new rules for the appointment and transfer of judges in the
upper judiciary in order to guard against what it perceived as undue influence from the executive
both during and before the Emergency. Under this jurisprudence a collegium of the Chief Justice of
India and the four most senior other judges recommend appointments to the Supreme Court. High
Court judges are appointed on the recommendation of the Chief Justice of India, the two most
senior judges of the Supreme Court, and the Chief Justice of the concerned High Court.
4. Responding to complaints of incestuousness and sycophancy surrounding the appointment and
transfer of High Court and Supreme Court judges through the collegium system, in 2014 Parliament
passed the Constitution (One-hundred-and-twenty-first Amendment) Bill, which was to establish a
National Judicial Appointments Commission (NJAC). 90 The NJAC was to replace the collegium and
would appoint and transfer High Court and Supreme Court judges. The Commission was to
comprise the Chief Justice of India, the two other seniormost judges of the Supreme Court, the
Union Minister for Law and Justice, and two eminent persons to be nominated by the Prime
Minister, the Chief Justice of India, and the Leader of the Opposition of the Lok Sabha. However, in
2015 a five-judge bench of the Supreme Court struck down the amendment that established the
NJAC as violating judicial independence and so the Basic Structure doctrine of the Indian
Constitution. 91 The majority argued that by not giving the judges control over the appointment
process the amendment undercut the independence of the judiciary and ordered that the previous
collegium system be restored.
5. Besides its judges controlling role in judicial appointments and transfers, the Supreme Court also
creates its own rules as to who may practice before it, how proceedings are governed, what fees it
may charge, and how it hears cases.
6. The base salary of a Supreme Court judge is currently Rs 90,000 a month and their pension is
similarly modest. Meanwhile, an elite, well-paid advocate can make Rs 400,000 for just one
appearance before the Supreme Court. During their tenure, judges do have housing provided for
them by the State, often in desirable locations, as well as a government car, driver, and other perks.
These perks though may further incentivise some judges to find work after retirement that will
allow them to maintain a comparable standard of living. Adding to their post-retirement financial
predicament, former Supreme Court judges may not practice again before any court in India, while
High Court judges cannot practice again before any subordinate court and by tradition do not
argue in the High Courts.
7. Subordinate court judges retire at 60 and so are eager to be appointed to the High Court if possible
where retirement is at 62, while High Court judges desire to be appointed to the Supreme Court
where retirement is set at 65. In other words, promotion not only carries prestige benefits but
failure to be promoted can lead to an earlier end to one’s judicial career. There have been calls to
reform how to handle complaints against judges, particularly in relation to corruption. Currently,
complaints are dealt with at the discretion of the Chief Justice, and in the extreme, a Supreme
Court or High Court judge may be removed by a two-thirds majority of both Houses of Parliament
for proved misbehaviour or incapacity, although such action is rare. The proposed Judicial
Standards and Accountability Bill 2010 would require judges to declare their assets and would
create a national oversight committee to hear complaints. The commission would comprise a
former Chief Justice of India, a current Supreme Court judge, a current High Court Chief Justice, the
Attorney General, and an eminent person nominated by the President.
THE CASE OF THE SPELUNCEAN EXPLORERS:
1949 Vol. 62 Harvard Law Review Pg. 616, Lon L. Fuller

Facts:
 The four defendants are members of the Speluncean society, an organization of

amateurs interested in the exploration of caves
 They, in the company of Roger Whetmore, then also a member of the society, entered a
limestone cavern
 Whilst they were in the cave, there was a landslide and heavy boulders fell in such a
manner as to block completely the only known opening to the cave
 On the failure of Whetmore and the defendants to return home, a search party was
dispatched to the spot
 The task of rescue proved one of overwhelming difficulty. The work was frustrated by
fresh landslides, one of which killed 10 workmen.
 The explorers carried only moderate rations, and death by starvation became a real
concern.
 The explorers asked the rescuers via a portable wireless machine capable of both
sending and receiving messages how long it would take. They said it would be
approximately 10 days.
 The explorers then asked to speak to a committee of medical experts, then asking these
experts how likely it was they would survive without food for 10 days. The chairman of
the committee told them there was little possibility of this.
 8hrs later, communication was re-established and Whetmore asked, on behalf of himself
and the defendants, whether they would be likely to survive for 10 days longer if they
consumed the flesh of one of their own numbers. The physicians’ chairman reluctantly
answered the question in the affirmative.
 For the rest of the time the explorers were in the cave, there was no communication with
the outside. It was learned when the men were finally rescued that Whetmore had been
killed and eaten by his companions.
 It was Whetmore who first proposed the idea of eating one of the explorers. It was also
Whetmore who first suggested some method of casting lots.
 Before the dice were cast, however, Whetmore declared that he withdrew from the
arrangement, as he had decided on reflection to wait another week before embracing an
expedient so frightful and odious. The others charged him with a breach of faith and
proceeded to cast the dice.
 When it came Whetmore’s turn, one of the defendants cast the dice for him. The throw
went against him, and he was then put to death and eaten by his companions
Case History:
 At trial, the foreman of the jury inquired of the court whether the jury might not find a
special verdict, leaving it to the court to say whether on the facts as found the
defendants were guilty. The defense and prosecution agreed, and this was the process
adopted by the Court.
 The jury found the facts as above, and found further that if on these facts the
defendants were guilty of the crime charged against them, then they found the
defendants guilty.
 The trial judge then ruled that the defendants were guilty of murdering Roger
Whetmore.
 After the release of the jury, its members joined in a communication to the Chief
Executive asking that the sentence be commuted to an imprisonment of six months. The
trial judge issued a similar communication to the Chief Executive.
 As yet, no action with respect to these pleas has been taken, as the Chief Executive is
awaiting the Appeal Court’s disposition of this petition of error.
Issues:
Moral Issues:
1. Is what the defendants did immoral?
2. If no, what should a judge do when the law says one thing, and morality demands
another?
Legal Issue:
1. Is necessity a defense to murder?
Appeal Judgments:
Truepenny C.J:
 Convicts the defendants, believing that “…the jury and the trial judge followed a course
that was not only fair and wise, but the only course available to them under the law.”
 The wording of the Statute is clear.
 However, he says that he thinks the Chief Executive should issue a pardon.
o “In a case like this, the principle of executive clemency seems admirably suited
to mitigate the rigors of the law.”
o “If this is done, then justice will be accomplished without impairing either the
letter or spirit of our Statutes and without offering any encouragement for the
disregard of law.”
Foster J:
 Acquits the defendants

 Believes conviction is unfair: “If this Court declares that under our law these men have
committed a crime then our law itself is convicted in the tribunal of common sense.”
 Follows a very naturalistic argument.
 Bases his acquittal on 2 alternative reasons:
1. The defendants, at the time, were ruled by the ‘law of nature’, not the ‘law of civil
society’
o Positive law is predicated on the possibility of men’s coexistence in society.
o Therefore, when a situation arises in which the coexistence of men becomes
impossible, then a condition that underlies all of our precedents and statutes
has ceased to exist.
o A case may be removed morally from the force of a legal order, as well as
geographically
o Since the principles which would usually govern the men’s behavior were
inapplicable, it is permitted that they draw up a new charter of government

appropriate to themselves
o This is particularly allowed given that, “…the most basic principle of law
or government is to be found in the notion of contract or agreement.”
o It is not true that human life is an absolute value.
Notes:
 This argument is linked to social contract theory (people living in the
same society have moral guidelines on what is right or wrong.)
 Thomas Hobbes argues that human nature is ‘nasty, brutish and
short’, and that therefore anything would be better that a state of
nature => mankind would agree to any arrangement of
governance/social contract
 John Locke disagrees, and argues that there are certain limits on
what government can do – there are certain human rights which
are inalienable.
 The idea that human rights are inalienable has arisen only recently.
However, it has had its basis in natural law theory for centuries.
Note: Bentham is a harsh critic of natural law theory.
2. A purposive reading of the Statute does not allow for the conviction of the
defendant.
o “…a man may break the letter of the law without breaking the law itself.
Every proposition of positive law… is to be interpreted reasonably, in the
light of its evident purpose.”
o The principal object of this legislation is to deter men from committing this
crime. Any future group of men finding themselves in this tragic predicament
will not make their decisions based on the contents of the criminal code.
o The judiciary is expected to read between the lines.
Tatting J:
 Convicts the defendants initially, but later withdraws from the case.
 Criticises Foster’s judgment:
1. Criticisms of the first of Foster’s reasons
o There are great uncertainties with Foster’s ‘law of nature’ doctrine.
o For example, what is it that marks the point at which one becomes
governed by the law of nature? Is it the thickness of the rock, or
because they were hungry etc.?
o Foster and he are appointed judges of the Commonwealth of

Newgarth, sworn to administer the laws of that Commonwealth.
o They have no authority to apply the ‘laws of nature’.
o This is a code in which the law of contracts is more fundamental than
the law of murder.
2. Criticisms of the second of Foster’s reasons

o Deterrence (not doing an act in fear of the consequences) is not the only
purpose of this law e.g. retribution (punishment), rehabilitation
o Anyway, the stigma of the word ‘murderer’ is such that it is quite
likely to deter the men, or at least compel them to wait a few more
days
o What shall be the scope of this exception? For example, what would
have been the position if Whetmore had been against the plan from
the beginning?
 Tatting concedes his difficulty in deciding this case:
o “When I feel myself inclined to accept the view of my brother Foster, I am
repelled by a feeling that his arguments are intellectually unsound and
approach mere rationalization. On the other hand, when I incline to
upholding the conviction, I am struck by the absurdity of directing that
these men be put to death when their lives have been saved at the cost of
the lives of ten heroic workmen.”
Keen J:
 Convicts the defendants

 Starts his judgment by making two points:
1. The question of executive clemency is one for the Chief Executive, not the
Court.
2. This is not a question of right and wrong. “The sole question before us is
whether these defendants did, within the meaning of the Statute, willfully
take the life of Roger Whetmore.”
 “To put it bluntly, my brothers do not like the fact that the written law requires
the conviction of these defendants. Neither do I, but unlike my brothers I
respect the obligations of an office that requires me to put my personal
predilections out of my mind when I come to interpret and apply the law of
this Commonwealth.”
 We have a clear cut principle – the supremacy of the legislative branch of
government.
o “From that principle flows the obligation of the judiciary to enforce
faithfully the written law, and interpret that law in accordance with its plain
meaning.” (emphasis added)
 Keen criticizes the purposive approach on the following grounds:
o It can be twisted to produce the outcome you want
 “I am personally so familiar with the process (of judicial reform of
disfavored legislative enactments) that in the event of my
brother’s incapacity I am sure I could write a satisfactory opinion
for him without any prompting whatever…”
o No Statute has any one purpose

o The objectives of every Statute are interpreted differently by different people.
Handy-
- Acquits
- common sense and realism
- Principles- practical wisdom, make justice accessible, bridge the gap between society and
justice, separation of powers, role of justice
- Practical wisdom to be exercised in the context of human realities. Men are ruled by
other men, not by words on paper or abstract theories.
- We need a reasonable accord between governments and citizens of governance.
- Common sense and common public opinion should play a role in justice.
- The current forms of pardon and acquittal are not devoid of factual errors and
emotional considerations and so public opinion isn't so bad. If the foreman of the jury
hadn’t been a lawyer, the jury too would’ve twisted the law to incorporate morality
and emotions.
Preamble and Articles 14, 19 and 21
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do

HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Article 14: Equality before law The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth.
Article 19- Right to Freedom. Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right:
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
Article 21- Protection of life and personal liberty. No person shall be deprived of his life or
personal liberty except according to procedure established by law. If an act of private
individual amounts to encroachment upon the personal liberty or deprivation of life of other
person.
Article 21-A Right to education- The Constitution (Eighty-sixth Amendment) Act, 2002
inserted it in the Constitution of India to provide free and compulsory education of all
children in the age group of six to fourteen years as a Fundamental Right in such a manner as
the State may, by law, determine.
IDEAS OF INDIA- GUHA
1. Part I- Introduction
- WITH 395 ARTICLES AND 12 schedules the constitution of India is
probably the longest in the world. Coming into effect in January 1950, it
was framed over a period of three years, between December 1946 and
December 1949.
- The proceedings of the Constituent Assembly of India were printed in
eleven bulky volumes. These volumes are a little-known treasure-trove,
invaluable to the historian, but also a potential source of enlightenment to
the interested citizen. In them we find many competing ideas of the nation,
of what language it should speak, what political and economic systems it
should follow, what moral values it should uphold or disavow.
2. Part II- Diversity within the assembly
- However, the Muslim League chose to boycott the early sittings of the
Assembly, making it effectively a one-party forum.
- But to demonstrate that it was not merely a Congress Party show, known
opponents such as Sarat Bose of Bengal were given seats alongside Nehru
and Patel; representatives of princely states were also there.
- However, since the party was itself a broad church they held a wide range of
views. Some were atheists and secularists, others ‘technically members of
the Congress but spiritually members of the RSS and the Hindu
Mahasabha’; they nominated members of different castes and religions and
also women- in part an answer to British criticism (Churchill)
- The process was made more participatory by asking for submissions
from the public at large. Low-caste groups demanded an end to their ‘ill
treatment by upper-caste people’ and ‘reservation of separate seats on
the basis of their population in legislature, government departments, and
local bodies, etc.’.
Linguistic minorities asked for ‘freedom of speech in [the] mother tongue’
and the ‘redistribution of provinces on linguistic basis’. Religious
minorities asked for special safeguards. And bodies as varied as the District
Teachers Guild of Vizianagaram and the Central Jewish Board of Bombay
requested adequate public representation. These submissions testify to the
baffling heterogeneity of India, but also to the precocious existence of a
rights culture among Indians.
3. Part III- Important Assembly members

- Nehru (first important member of Assembly) speech- This proclaimed
India as an ‘independent sovereign republic’, guaranteeing its citizens
‘justice, social, economic and political; equality of status; of opportunity,
and before the law; freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject tolawand public morality’ – all
this while assuring that ‘adequate safeguards shall be provided for
minorities, backward and tribal areas, and depressed and other backward
classes . . .’ In moving the resolution, Nehru invoked the spirit of Gandhi
and the ‘great past of India, as well as modern precedents such as the
French, American and Russian revolutions.’
- Patel (second important member)- did back-room work like mediating

wars and reconciling differing views; he drafted various reports. \
- Prasad (third important member)- The third Congress member of
importance was the president of the Assembly, Rajendra Prasad. Prasad
had to keep the peace between quarrelsome members and (just as
difficult) keep to the clock men who sometimes had little sense of what
was trifling and what significant.
- Outside this Congress trinity the most crucial member of the Assembly
was the brilliant lowcaste lawyer B. R. Ambedkar. Ambedkar was law
minister in the Union government; and also chairman of the Drafting
Committee of the Indian Constitution. He was accompanied by K.M.
Munshi and Alladi Aiyar.
- To these six men one must add a seventh who was not a member of the
Assembly at all. This was B. N. Rau, who served as constitutional adviser
to the government of India.
4. Part IV- Lack of Gandhian ideals

- Moral vision, political skill, legal acumen: these were all brought together
in the framing of the Indian Constitution. This was a coming together of
what Granville Austin has called the ‘national’ and ‘social’ revolutions
respectively.
- The national revolution focused on democracy and liberty – which the
experience of colonial rule had denied to all Indians – whereas the social
revolution focused on emancipation and equality, which tradition and
scripture had withheld from women and low castes.
- Ultimately it was the individual, rather than the village, that was chosen as
the basic unit of politics and governance. In other respects, too, the
constitution was to look towards Euro-American rather than Indian
precedents.
- The constitution provided for an independent election commission, and an
independent comptroller general of accounts. To protect the judiciary
from party politics, judges were to be appointed by the president in

consultation with the chief justice, while their salaries were not decided
by Parliament but charged directly to the Treasury.
- The Supreme Court in Delhi was seen both as the guardian of the social
revolution and as the guarantor of civil and minority rights. It was
endowed with broad appellate jurisdiction – any civil or criminal case
could be referred to it so long as it involved an interpretation of the
constitution.
- The fundamental rights, which were enforceable in a court of law, derived
from the obligations of the state not to encroach upon or stifle personal
liberty, and to protect individuals and groups from arbitrary state action.
- Those who had looked closely at the provisions of the constitution could
not thus console themselves. Mahavir Tyagi was ‘very much disappointed
[to] see nothing Gandhian in this Constitution’. 22 And K. Hanumanthaiya
complained that while freedom fighters like himself had wanted ‘the music
of Veena or Sitar’, what they had got instead was ‘the music of an English
band’- bicameral parliament, supreme authority of President, fiscal
federalism, fundamental rights and DPSPs are all adopted from
foreign texts.
5. Part V- Union bias of the Constitution and public interest restrictions.
6. Part VI- rights of minorities and women- Much attention was paid by the
Assembly to the rights of the minorities. A vulnerable minority even more
numerous than the Muslims were the women of India. The female members of the
Assembly had come through the national movement and were infected early with
the spirit of unity- What we have asked for is social justice, economic justice, and
political justice. We have asked for equality which alone can be the basis of
mutual respect and understanding and without which real co-operation is not
possible between man and woman.
7. Part VII- Untouchables and lower castes

- There would be no reservation for Muslims and women. But the
constitution did recommend reservation for Untouchables. This was in
acknowledgement of the horrific discrimination they had suffered, and
also a bow towards Mahatma Gandhi.
- The constitution set aside seats in legislatures as well as jobs in
government offices for the lowest castes.
- For the left-wing congress politician Mahavir Tyagi, reservation did not lead
to real representation. For ‘no caste ever gets any benefit from this
reservation. It is the individual or family which gets benefits’. Instead of
caste, perhaps there might be reservation by class, such that ‘cobblers,
fishermen and other such classes send their representatives through
reservation because they are the ones who do not really get any
representation’
8. Part VIII- Adivasis and Scheduled Tribes

- The first report on minority rights, made public in late August 1947,
provided for reservation for Untouchables only. Muslims were denied the
right, which in the circumstances was to be expected. However, one
member of the Assembly regretted that ‘the most needy, the most deserving
group of adibasis [tribals] has been completely left out of the picture’.
9. Part IX- language

- The most controversial subject in the Assembly was language: the
language to be spoken in the House, the language in which the constitution
would be written, the language that would be given that singular
designation, ‘national’.
- They demanded that the official version of the Constitution be in Hindi,
with an unofficial version in English. This the Drafting Committee did
not accept, on the grounds that English was better placed to incorporate
the technical and legal terms of the document. When a draft constitution
was placed before the House for discussion, members nevertheless asked
for a discussion of each clause written in Hindi. To adopt a document
written in English, they said, would be ‘insulting’.
Under British rule, English had emerged as the language of higher education
and administration. Would it remain in this position after the British left? The
politicians of the north thought that it should be Replaced by Hindi. The
politicians and people of the south preferred that English continue as the
vehicle of
inter-provincial communication.
- Like Nehru, Gandhi thought that Hindustani (amalgamation of Hindi
and Urdu) could unite north with south, and Hindu with Muslim. It,
rather than English, should be made the rashtrabhasha, or national
language.
- Partition more or less killed the case for Hindustani. The move to
further Sanskritize Hindi gathered pace.
- The Assembly finally arrived at a compromise; that ‘the official
language of the Union shall be Hindi in the Devanagari script’; but for
‘fifteen years from the commencement of the Constitution, the English
language shall continue to be used for all the official purposes of the
Union for which it was being used immediately before such
commencement’.
10. Part X- Ambedkar conclusion

- Ambedkar ended his speech with three warnings about the future. The first
concerned the place of popular protest in a democracy. There was no place for
bloody revolution, of course, but in his view there was no room for Gandhian
methods either. ‘We must abandon the method of civil disobedience, non-
cooperation and satyagraha [popular protest]’. Under an autocratic regime, there
might be some justification for them, but not now, when constitutional methods of
redress were available.
- The second warning concerned the unthinking submission to charismatic authority.
Ambedkar quoted John Stuart Mill, who cautioned citizens not ‘to lay their liberties at the
feet of even a great man, or to trust him with powers which enable him to subvert their
institutions’.
- Ambedkar’s final warning was to urge Indians not to be content with what he
called ‘mere political democracy’. India had got rid of alien rule, but it was
still riven by inequality and hierarchy.
11. Part XI- difference between Japanese and Indian Constitutions

Granville Austin has claimed that the framing of the Indian Constitution was ‘perhaps the
greatest political venture since that originated in Philadelphia in 1787’. The outlining of a
set of national ideals, and of an institutional mechanism to work towards them, was ‘a
gigantic step for a people previously committed largely to irrational means of achieving
other-worldly goals’. For this, as the title of the last section of Austin’s book proclaims, ‘the
credit goes to the Indians.
Ideas
1. Public consultation vs selected representation vs oligarchy
2. National revolution vs social revolution
3. Individual/state vs village system
4. American presidency vs British parliamentary system
5. Universal adult franchise- problem with the design of this in the Indian context;
prisoners and migrant labourers
6. Bicameral parliament- Rajya Sabha and Lok Sabha
Why Rajya Sabha? To keep a check on the democratic zeal, prevent majoritarian nature of
the Lok Sabha, slow down reforms.
7. Federalism; Unitary- Quasifederal
8. Fundamental Rights
9. Minorities
10.Separate electorates
11.Reservations- opportunity; representation (deliberation and conversation is
different and more inclusive when representation is there); reparation
12. Language
Adivasis- Scheduled Tribes
Statute- rule or order having the force of law, issued by the executive authority of the
Government under power granted by the Constitution.
Interpretation- objective of the rules of interpretation is to help the judge ascertain the
intention of the legislature; not control or confine that intention.
The 3 rules(these are not exactly rules, they are approaches to interpret the statutes.)
1. The literal rule - when a statute is clear and unambiguous, courts should give effect to
the literal meaning of the words of the statute. Often does not happen though, because
if the words of the law were that clear it is unlikely that someone would have brought
the case.
flipside: when things are absurd and leads to bad consequences, does the literal rule
still be applied? yes, it is still applied under this rule.
R vs Harris: statute said do not stab people, the defendant bit off the victim's nose,
therefore was not held guilty.
there is very less scope in the literal rule and can be interpreted both ways.
Stock v Frank Jones: statute said that the employer cannot dismiss only one employ
on strike while not dismissing the others from when the strike began,, so the employer
threatened the employees and asked them to come back to work, some came back,
those who did not were fired. it was ruled that employees could claim unfair dismissal
as every employee was present in the strike when it began.
Golden rule and Mischief rule together start the purposive approach (courts interpret the
words of a statute in light of the purpose behind it)
1. The golden rule – adaptation of the literal rule:
when use of the literal rule would result in an absurd(does not mean injustice, it refers
to inconsistencies within the act) result, courts should investigate whether the wording
conveys the intention of the legislature in framing it.
the literal rule only looked at the text, the golden rule looks at the context. It is a
bridge between literalism and purposiveness to resolve anomalies within the law.
R v Allen: two rules in conflict- incestuous marriages are void and that bigamy is
punishable. void means as if it never happened. so Allen’s second marriage, while he
was already married with someone who he is closely related to should be void as per
literal rule, but judges adopted a persuasive approach.
Castle vs Dade: will must be signed in the presence of witnesses. Jenkins saw the will
being signed, but from the window and not directly while being there. under literal
rule the will would not be valid, but using golden rule it was said that Jenkins is a
proper witness to the will as it was within her eye sight.
Mischief rule- courts should interpret a statute so as to suppress the mischief and advance the
remedy of the statute. going a step further from the Golden rule, it gives effects to the
objectives of the law. mischief rule looks at the common law status quo.
courts consider 4 things:
1. Common law before the act

2. Defect or mischief which was not provided in common law
3. Remedy parliament intended to provide
4. True reason for remedy
judges can apply in statutory interpretation in order to discover Parliament's intention .

The application of this rule gives the judge more discretion than the literal and the golden rule
as it allows him to effectively decide on Parliament's intent.
cases:
Gorris v Scott: Gorris gave his sheep to Scott to transport them across the sea. Sheep went
overboard due to no fencing. Gorris filed under Contagious Diseases Act, 1869. Court ruled
that the purpose of the statute was to prevent spread of diseases amongst animals and not for
people to use it as a way to claim.
This rule follows the grand style.

Ratio
1. The reasons and principles that are necessary for a judge to reach his decision
amounts to the ratio decidendi of that case.
2. It is essentially the because factor.
3. The ratio decidendi forms the legal principles which is a binding precedent-
must be followed in future cases with same material facts.
4. Ratio is based on the material facts of a case and matching legal principles with
those very material facts.
5. Goodhart Test- ratio is determined by taking the facts which judges considered
material together with the decisions and judgements on those material facts.
6. Wambaugh Test- flip the facts the part of the judgement that changes is the ratio.
7. Ratio is determined by an abstraction (removal) from the totality of facts;
more the abstraction, wider the ratio.
8. Advantages
- Stresses that a proposition of law is binding only to the extent that it is
relevant to the facts.
9. Disadvantages
- Depends entirely on the level of generality and abstraction of facts.
- Judges may differ in opinions of what facts are material.
10. Ratio decidendi forms the precedent of the case; all other legal statements are
obiter dicta.
11. Future judges do not have to either agree or disagree with past ratios; they can re-
interpret them.
Obiter Dicta
1. Judicial opinions on points of law that are not directly relevant to the case in
question.
2. They are made when a judge chooses to give some indication about how they would
decide a case similar, but not identical, to the one at hand.

3. They help to clarify the legal principles that the judge uses in their primary
judgement; often take the form of analogies, illustrations and conclusions based
on hypothetical situations.
4. Obiter dicta of one case may become the ratio of another depending upon the facts.
Precedents
Higher courts overrule precedents in extraordinary situations:
1. Per incuriam- if the initial decision was made with an oversight of some important
statute or rule.
2. Sub silentio- when the decision was on some matter which was not the subject
matter of argument.
Courts may also avoid using precedents by distinguishing- when a judge finds the
material facts of the present case to be reasonably different from earlier case.
Courts, however, always attempt to apply precedents before overturning it.
Problems with ratio decidendi

1. Judges may formulate one ratio; and then continue with their
judgement and establish a new slightly different ratio
2. New judges may perceive the ratio to be different from what the original judge
intended
3. Benches are becoming larger with more complex opinion
4. Donoghue ratio is neighbours’ principle but only one judge (Atkins) really spoke
about it
5. No single test to establish the ratio
6. Ratio decidendi is essentially the because factor behind a judgement;
why the judgement?
7. Untrue that judges have to either agree or disagree with previous ratios;
they can reinterpret it
8. Difficult for lower courts to distinguish from earlier judgements. They can’t do this
- Factors of the ratio of the earlier case must be retained
- The later ruling must support the same outcome
Thus, they don’t disagree or overrule, but merely reinterpret the judgements and either
narrow down or broaden the ratio and precedents to suit themselves.

LM Final Term Notes

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Rishabh Jain, BBA-LLB(A)

LEGAL METHODS NOTES FINAL SEM

Critiques of Natural Law-

1. Moral truths/propositions can not be logically determined from factual truths/propositions.

CRITIQUES OF POSITIVE LAW-

CRITIQUES OF IMPERATIVE LAW-

1. The issue of Law’s need to have moral legitimacy ignored.

CRITIQUES OF LEGAL REALISM-

COMMON LAW AND CIVIL LAW TRADITIONS

1. Habeas Corpus- to have the body; prevent unlawful detention

ARGUMENT BY THE APPELLANT-

ARGUMENT BY THE RESPONDENT-

INTRODUCTION TO THE INDIAN CRIMINAL JUSTICE SYSTEM-

LEGISLATIVE FRAMEWORK – CJ SYSTEM-

LAW RELATING TO ARREST-

THE RIGHT TO COUNSEL AND FREE LEGAL AID-

THE TRIAL PROCESS-

SENTENCING PHASE OF THE TRIAL-

1. The CrPC specifically provides for a separate phase for sentencing.

THE APPELLATE PROCESS-

APPEALS AGAINST AQUITTALS-

APPEALS FROM CONVICTIONS – APPEAL FOR ENHANCEMENT OF SENTENCE

SUSPENSION OF SENTENCE DURING APPEAL-

NICK ROBINSON- HIERARCHY OF COURTS

BACKLOG AND TOP-HEAVINESS-

STARE DECISIS AND POLYVOCALITY-

Judicial and Litigation Entrepreneurs and Chief Justice Dominance-

THE UPPER JUDICIARY-

THE CASE OF THE SPELUNCEAN EXPLORERS:

1949 Vol. 62 Harvard Law Review Pg. 616, Lon L. Fuller

 The four defendants are members of the Speluncean society, an organization of

 Acquits the defendants

inapplicable, it is permitted that they draw up a new charter of government

o Foster and he are appointed judges of the Commonwealth of

2. Criticisms of the second of Foster’s reasons

 Convicts the defendants

o No Statute has any one purpose

Preamble and Articles 14, 19 and 21

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(g) to practise any profession, or to carry on any occupation, trade or business

IDEAS OF INDIA- GUHA

3. Part III- Important Assembly members

- Patel (second important member)- did back-room work like mediating

4. Part IV- Lack of Gandhian ideals

from party politics, judges were to be appointed by the president in

5. Part V- Union bias of the Constitution and public interest restrictions.

7. Part VII- Untouchables and lower castes

8. Part VIII- Adivasis and Scheduled Tribes

9. Part IX- language

10. Part X- Ambedkar conclusion

11. Part XI- difference between Japanese and Indian Constitutions

1. The golden rule – adaptation of the literal rule:

courts consider 4 things:

1. Common law before the act

judges can apply in statutory interpretation in order to discover Parliament's intention .