Chanderprabhu Jain College of Higher Studies

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Class : BA LLB

Paper Code : 101

Subject : LEGAL METHOD

Unit I

What is law?

Law, in its widest sense, means and involves a uniformity of behavior, a constancy
of happenings or a course of events, rules of action, whether in the phenomena of
nature or in the ways of rational human beings. In its general sense law means an
order of the universe, of events, of things or actions. In its judicial sense, law
means a body of rules of conduct, action or behavior of person, made and enforced
by the state. It expresses a rule of human action.

The different meaning of the word ‘law’ may be classified as follows:-

 Law means justice, morality, reason, order, righteousness etc, from the point
of viw of society;
 Law means statutes, acts, rules, regulations, orders, ordinances etc, from the
point of view of legislature;
 Law means rules of Court, decrees, judgments, orders of courts, injunctions
etc. from the point of view of the judges;
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 Law means rights and remedies from the point of view of the decree-
holders;
 Law means duties, liabilities, obligations etc from the point of view of
judgment-debtor;
 Law means titles, written laws, judicial precedents, customs s evidence of
law.

Generally the term law is used to mean three things:

First, it is used to ‘legal order’. It represents the regime of adjusting relations, and
ordering conduct by the systematic application of the force o organized political
society.

Secondly, law means the whole body of legal precepts which exists in a politically
organized society.

Thirdly, law is used to mean all official control in a politically organized society.
This leads to the actual administration of justice as contrasted with the
authoritative material for the guidance of judicial action.

Law in its narrowest or strict sense, is the civil law or the law of the land.

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PURPOSE AND FUCTIONS OF LAW

The law serves many purposes and functions in society. Four principal purposes
and functions are establishing standards, maintaining order, resolving disputes, and
protecting liberties and rights.

 Justice and law

The ultimate purpose of law is justice. Salmond says that law is “the body of
principles recognized and applied by the state in administration of justice.

According to salmond, justice consists in giving to every man his own. The rule of
justice determines the sphere of individual liberty within the limits which are
consistent with the general welfare of mankind, within the sphere of liberty so
delimited for every man by the rule of justice, he is left free to seek his own
interest in accordance with the rule of wisdom.

 Stability (uniformity)

Law must aim at stability in society. To achieve a balance has to struck not
between persons, but between interests. The law has to maximize the fulfillment of
the interests of the community and its members and to promote the smooth running
on the machinery of society. Indeed, the motion of law represents the need of
uniformity and certainty to achieve stability. The stability and security which the
social order derives from uniform unchanging and certain rules of law.

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 Peaceful change (flexibility) (social control)

The existing rules may not provide solution to the cases of changed times and no
rule can provide for every possible case. There is need for flexibility. Flexibility is
necessary to enable the law to adapt itself to social change. As society alters, new
social, political and economic requirements creep in and the needs of the people
change from time to time. In a progressive society law has to keep pace with the
changing needs of society. Law has to undergo a progressive change if it is to
subserve the needs of the society which it seeks to govern. In relatively static
societies, law can be used as a powerful instrument of social change. Law then
induces a new pattern of social behavior more conductive to the prosperity of the
society.

 Establishing Standards

The law is a guidepost for minimally acceptable behavior in society. Some

activities, for instance, are crimes because society (through a legislative body) has
determined that it will not tolerate certain behaviors that injure or damage persons
or their property. For example, under a typical state law, it is a crime to cause
physical injury to another person without justification—doing so generally
constitutes the crime of assault.

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 Maintaining Order

This is an offshoot of establishing standards. Some semblance of order is necessary

in a civil society and is therefore reflected in the law. The law—when enforced—
provides order consistent with society’s guidelines

 Resolving Disputes

Disputes are unavoidable in a society made of persons with different needs, wants,
values, and views. The law provides a formal means for resolving disputes—the
court system. There is a federal court system and each state has its own separate
court system. There are also various less formal means for resolving disputes—
collectively called alternative dispute resolution (ADR).

 Protecting Liberties and Rights

The constitutions and statutes of the United States and its constituent states provide
for various liberties and rights. A purpose and function of the law is to protect
these various liberties and rights from violations or unreasonable intrusions by
persons, organizations, or government. For example, subject to certain exceptions,
the First Amendment to the Constitution prohibits the government from making a
law that prohibits the freedom of speech. Someone who believes that his free
speech rights have been prohibited by the government may pursue a remedy by
bringing a case in the courts.

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LAW JUSTICE AND MORALITY

• In order to achieve justice; countries institute a legal system of some sort.

• Justice is an entirely subjective concept, largely depending on political

affiliation, and previous experience of the legal system.

• Similarly to law, there is a vast amount of documentation providing different

definitions and different theories of justice.

• This discussion begins with two major conflicting views about justice and
law .

• One view sees justice as no more or less than what the current authority says
it is. There are no universal principles by which justice or injustice can be
defined other than the way in which the government has made its laws.

• Thus, in different societies and under different authorities, justice is

different.

• In this view, the idea that there is some sort of universal ideal or natural law
is often just an argument by those who do not like the laws of the
government in power.

• The opposing view argues that there is a natural ideal of justice that law
aspires to that can be used as a criterion to measure whether laws are just or
not.

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• This school of thought is traditionally described as people who support the

concept of natural law or natural justice.

CLASSIFICATION OF LAW

1. PUBLIC LAW VS PRIVATE LAW.

Private law
Private law is concerned with the matters concerning the individual more
than the public. It regulates and governs the relations of citizens with each
other. The parties in such cases are private individuals and the state
adjudicates the matters in disputes between individuals through its judicial
organs.
Private civil law deals with matters such as contracts, insurance, carriage,
freight, damages, for personal injuries, civil wrongs, agencies, bailment, sale
of goods, partnership, regulation of companies, insolvency, arbitration,
negotiable instruments, transfer of property, trusts and the likes. In
democratic countries, the private law regulates the major part of the social
life.
In the classification of private life there is great difficulty. Different jurists
have given different classifications. A very general classification is as
follows:
(i) The law of persons
(ii) The law of property

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(iii) The law of obligations

(iv) The conflict of laws

The law of obligations is divided into: contracts; quasi-contracts; and torts.

Private laws are enforced by granting the individual the right to take action in
defense of a recognized personal interest. The sole purpose for which most private
law rules have been created is to protect the individual interest.

Private law is also known as civil law. It involves relationships between

individuals, or private relationships between citizens and companies. It covers the
law of obligations and the law of torts, which is defined as follows: Firstly, the
Law of Obligation organizes and regulates legal relations between individuals
under contract. Secondly, the Law of Torts addresses and remedies issues for civil
wrongs, not arising from any contractual obligation.

Public law

Public law is simply distinguished from private law as a law involving the state.
Private law is a private bill enacted into law. It targets individuals or corporations,
unlike public law, which has a broader scope, and affects the general public.

Public law is a theory of law that governs the relationship between the state and the
individual, who is considered to be either a company or a citizen. Public law
covers three sub-divisions: Constitutional, administrative and criminal law.

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The state activities are largely regulated by public law. The public law determines
and regulates the organization and functioning of the state and determines the
relation of the state with its subjects. In public law, provisions are made with a
view to promote social objectives and to protect the collective rather than
individual interests. Public law may be divided into three parts:

(i) Constitution law

(ii) Administrative law
(iii) Criminal law

– Constitutional law covers the different branches of the state: Executive,

legislative and judiciary.

– Administrative law regulates international trade, manufacturing, pollution,

taxation, and the like.

– Criminal law involves state imposed sanctions for individuals or companies in

order to achieve justice and social order.

2. PROCEDURAL LAW AND SUBSTANTIVE LAW

Civil law may be defined as (i) procedural and (ii) substantive law.

Procedural law:

The procedural law can be defined as the law which governs the way in which
court proceedings are undertaken. Simply put, it explains the methods and

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practices, that are followed in the court for a case, i.e. the gradual phases of the
lawsuit that will take place and the way in which case is managed in the court. So,
it describes the series of steps taken in civil, criminal and administrative cases.

As procedural law determines the procedure of all lawsuits, it complies with the
due process. Due process pertains to the person’s legitimate right to have legal
proceedings if he/she is sued.

The procedural law determines the means of imposing rights and providing
remedies to wrong. It consists of rules concerning jurisdiction, pleading, appealing,
presenting evidence, executing judgement, cost and the like.

It regulates the conduct of affairs in the course of judicial proceedings. Jeremy

bentham used the term ‘adjective law’ for procedural law.

The procedural law is the law which deals with the mode in which a process of law
may be set in motion; it deals with the procedure and evidence by which
substantive remedies given under the law can be enforced. It deals with the form in
which actions may be brought in courts of law, the kinds of such actions and legal
processes, the mode in which each of the processes of law may be set in motion,
e.g. by summos, plaints, complaints, petition etc. it deals with matters such as the
jurisdiction of the courts, and the execution of decrees, orders and sentences passed
by the court. There is a procedural law for criminal cases and trials; and we have a
procedure for civil cases. Whether the suit is for declaration of a right or for
damages for a civil injury or breach of contract or for specific performance or
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injunction, or for restitutio of conjugal rights whether it is in contract or tort, in

company law or maritime law, we have the same law of evidence and the same
code of civil procedure, subject to some minor qualifying procedural rules.
Generally, the code of civil procedure, the code of criminal procedure, the
evidence act etc. are procedural laws.

Substantive law:

Substantive law is used to mean the written law that states the rights, duties and
liabilities of the citizens and collective bodies. It is the system of rules that regulate
the behaviour of the citizens of the country. It is generally codified in statutes but
can also be found in common law.

Substantive law is concerned with the substance of the case. It either helps in suing
someone or defending a person from legal proceedings.

It is that part of the legal system which differentiates between right and wrong
conduct and personifies the idea that committing the crime will lead to penalty or
punishment or both (as the case may be) to the wrongdoer.

Substantive law is the law that is concerned with the determination of rights,
duties, liberties and legal powers. It refers to the rules and principles defining the
rights, powers, and privileges.

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3. MUNICIPAL AND INTERNATIONAL LAW

Municipal law is the law of the state regulating the conduct of individuals and deal
with the relation between individual and the state.

Municipal law is infra-state affairs concerned with domestic affairs.

Municipal law is of command and sanction, it is the will of the state empowered by
sovereign authority.

The source of municipal law is legislations and the judiciary is all pervasive.

The municipal law court is bound by the law laid down by the sovereign states for
its enforcement.

International law is the law of the nations, regulating relations between the nations
with each other.

International law is mainly concerned with foreign affairs and interstate affairs.

It is the nature of consent and consensus. It applies on individual mediate.

International law is the common will of the states.

It is considered weak law in comparison to municipal law in the view of the

positivists theorists.

The primary sources here are treaties, conventions, customs, general principal of
laws.

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The international court of justice (icj) acts as a judiciary in international law, the
the decision of the court is binding upon the parties to the litigation who have
submitted themselves to the jurisdiction of the ICJ.

4. CIVIL LAW AND CRIMINAL LAW

Every country’s constitution enforces certain laws, for the purpose of maintaining
order and protecting the society from crimes. These laws are broadly classified into
two categories, i.e. Civil Law and Criminal Law. The Civil law lays emphasis on
resolving the dispute like family dispute, rent matters, disputes relating to the sale
and so forth. On the other hand, Criminal law stresses on punishment to the
offender, who breaches the law by acts such as, murder, rape, theft, smuggling, etc.

Civil law, plays a crucial role, as it resolves most of the private matters, that
happen to individuals. Conversely, the criminal law holds dominating positions
among the social control agencies, as it is a powerful tool which is used to protect
the public interest against anti-social conduct. Take a read of the article given
below, to understand the difference between civil law and criminal law.

BASIS FOR
CIVIL LAW CRIMINAL LAW
COMPARISON

Meaning Civil law refers to a general law, Criminal law implies the law
which is concerned with disputes related to the offenses or

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BASIS FOR
CIVIL LAW CRIMINAL LAW
COMPARISON

between individuals, organizations, or crimes committed against the

both wherein the wrongdoer society as a whole.
compensates the affected one.

Filed by Plaintiff Government

Purpose To sustain the rights of a person and To maintain law and order, to
to compensate him. protect society and to give
punishment to the
wrongdoers.

Starts with Filing a petition to the respective Firstly, a complaint is lodged

court or tribunal, by the aggrieved with the police who
party. investigate the crime,
thereafter, a case is filed in
the court.

Deals with It deals with any harm or violation to It deals with the acts which

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BASIS FOR
CIVIL LAW CRIMINAL LAW
COMPARISON

individual rights. law defines as offences.

Action Sue Prosecute

Outcome Remedy Punishment

Powers of court Award for damages or injunction Imprisonment, fine,

discharge.

Consequence Defendant is liable or not liable. Defendant is guilty or not

guilty.

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UNIT II

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 SOURCESOF LAW

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. Alaw enacted
by the State or Sovereign falls into this category.

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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.

There are three major sources of law can be identified in any modern society are as
follows:

Custom

Judicial precedent

Legislation

 CUSTOM AS ASOURCE OF LAW

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.

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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 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.

Kinds of Customs

Customs can be broadly divided into two classes:

 Customs without sanction:

These kinds of customs are non-obligatory in nature and are followed because of
public opinion.

 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:

 Legal Custom:

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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.

 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.

Essentials of a valid custom

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:

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 Antiquity:

In order to be legally valid customs should have been in existence for a long time,
even beyond human memory. In England, the year 1189 i.e. the reign of Richard I
King of England has been fixed for the determination of validity of customs.

 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. Acustom 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.

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 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.

 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. For instance, the customary practice of child marriage has been
declared as an offence.

 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. 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 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
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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. 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 decidendi (Reason of Decision):

Ratio decidendi' refers to the binding part of a judgment. 'Ratio decidendi' 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

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of a higher judiciary is given due consideration by lower courts and has persuasive
value.

 LEGISLATION AS ASOURCE OF LAW

In modern times, legislation is considered as the most important source of law. The
term 'legislation' is derived from the Latin word legis which means 'law' and latum
which means "to make" or "set". Therefore, the word 'legislation' means the
'making of law'.

The importance of legislation as a source of law can be measured from the fact that
it is backed by the authority of the sovereign, and it is directly enacted and
recognised by the State. The expression 'legislation' has been used in various
senses. It includes every method of law-making. In the strict sense it means laws
enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

 Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme
legislation. One of the features of Supreme legislation is that, no other authority
except the sovereign itself can control or check it. The laws enacted by the British

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Parliament fall in this category, as the British Parliament is considered as

sovereign.

 Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is

subordinate to the supreme or sovereign authority. It is enacted under the delegated
authority of the sovereign. The origin, validity, existence and continuance of such
legislation totally depends on the will of the sovereign authority. Subordinate
legislation further can be classified into the following types

 Autonomous Law:

When a group of individuals recognized or incorporated under the law as an

autonomous body, is conferred with the power to make rules and regulation, the
laws made by such body fall under autonomous law. For instance, laws made by
the bodies like Universities, incorporated companies etc. fall in this category of
legislation.

 Judicial Rules:

In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. The Supreme Court and High Courts have been
conferred with such kinds of power to regulate procedure and administration.

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 Local laws:

In some countries, local bodies are recognized and conferred with the law-making
powers. They are entitled to make bye-laws in their respective jurisdictions. The
rules and bye-laws enacted by them are examples of local laws.

 Colonial Law:

Laws made by colonial countries for their colonies or the countries controlled by
them are known as colonial laws. For a long time, However, as most countries of
the world have gained independence from the colonial powers, this legislation is
losing its importance and may not be recognized as a kind of legislation.

 Laws made by the Executive:

Laws are supposed to be enacted by the sovereign and the sovereignty may be
vested in one authority or it may be distributed among the various organs of the
State. In most of the modern States, sovereignty is generally divided among the
three organs of the State. The three organs of the State namely legislature,
executive and judiciary are vested with three different functions. The prime
responsibility of law-making vests with the legislature, while the executive is
vested with the responsibility to implement the laws enacted by the legislature.
However, the legislature delegates some of its law-making powers to executive
organs which are also termed delegated legislation. Delegated legislation is also a
class of subordinate legislation. In welfare and modern states, the amount of

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legislation has increased manifold and it is not possible for legislative bodies to go
through all the details of law. Therefore, it deals with only a fundamental part of
the legislation and wide discretion has been given to the executive to fill the gaps.
This increasing tendency of delegated legislation has been criticized. However,
delegated legislation is resorted to, on account of reasons like paucity of time,
technicalities of law and emergency. Therefore, delegated legislation is sometimes
considered as a necessary evil.

UNIT III

BASIC CONCEPTS OF INDIAN LEGAL SYSTEM

 COMMON LAW FOUNDTION

Most nations today follow one of two major legal traditions: common law or civil
law. The common law tradition emerged in England during the Middle Ages and
was applied within British colonies across continents. The civil law tradition
developed in continental Europe at the same time and was applied in the colonies
of European imperial powers such as Spain and Portugal. Civil law was also
adopted in the nineteenth and twentieth centuries by countries formerly possessing
distinctive legal traditions, such as Russia and Japan, that sought to reform their
legal systems in order to gain economic and political power comparable to that of
Western European nation-states.

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that there is no comprehensive compilation of legal rules and statutes. While

common law does rely on some scattered statutes, which are legislative decisions,
it is largely based on precedent, meaning the judicial decisions that have already
been made in similar cases. These precedents are maintained over time through the
records of the courts as well as historically documented in collections of case law
known as yearbooks and reports. 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. Common law functions as an
adversarial system, a contest between two opposing parties before a judge who
moderates. A jury of ordinary people without legal training decides on the facts of
the case. The judge then determines the appropriate sentence based on the jury’s
verdict. Civil Law, in contrast, is codified. Countries with civil law systems have
comprehensive, continuously updated legal codes that specify all matters capable
of being brought before a court, the applicable procedure, and the appropriate
punishment for each offense. Such codes distinguish between different categories
of law: substantive law establishes which acts are subject to criminal or civil
prosecution, procedural law establishes how to determine whether a particular
action constitutes a criminal act, and penal law establishes the appropriate penalty.
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. Though the judge often brings the
formal charges, investigates the matter, and decides on the case, he or she works
within a framework established by a comprehensive, codified set of laws. The

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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.

Historical development of English Common Law

English common law emerged from the changing and centralizing powers of the
king during the Middle Ages. After the Norman Conquest in 1066, medieval kings
began to consolidate power and establish new institutions of royal authority and
justice. New forms of legal action established by the crown functioned through a
system of writs, or royal orders, each of which provided a specific remedy for a
specific wrong. The system of writs became so highly formalized that the laws the
courts could apply based on this system often were too rigid to adequately achieve
justice. In these cases, a further appeal to justice would have to be made directly to
the king. This difficulty gave birth to a new kind of court, the court of equity, also
known as the court of Chancery because it was the court of the king’s chancellor.
Courts of equity were authorized to apply principles of equity based on many
sources (such as Roman law and natural law) rather than to apply only the common
law, to achieve a just outcome. Courts of law and courts of equity thus functioned
separately until the writs system was abolished in the mid-nineteenth century. Even
today, however, some U.S. states maintain separate courts of equity. Likewise,
certain kinds of writs, such as warrants and subpoenas, still exist in the modern
practice of common law. An example is the writ of habeas corpus, which protects
the individual from unlawful detention. Originally an order from the king obtained

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by a prisoner or on his behalf, a writ of habeas corpus summoned the prisoner to

court to determine whether he was being detained under lawful authority. Habeas
corpus developed during the same period that produced the 1215 Magna Carta, or
Great Charter, which declared certain individual liberties, one of the most famous
being that a freeman could not be imprisoned or punished without the judgment of
his peers under the law of the land—thus establishing the right to a jury trial. In the
Middle Ages, common law in England coexisted, as civil law did in other
countries, with other systems of law. Church courts applied canon law, urban and
rural courts applied local customary law, Chancery and maritime courts applied
Roman law. Only in the seventeenth century did common law triumph over the
other laws, when Parliament established a permanent check on the power of the
English king and claimed the right to define the common law and declare other
laws subsidiary to it. This evolution of a national legal culture in England was
contemporaneous with the development of national legal systems in civil law
countries during the early modern period. But where legal humanists and
Enlightenment scholars on the continent looked to shared civil law tradition as well
as national legislation and custom, English jurists of this era took great pride in the
uniqueness of English legal customs and institutions. That pride, perhaps mixed
with envy inspired by the contemporary European movement toward codification,
resulted in the first systematic, analytic treatise on English common law: William
Blackstone’s (1723-1780) Commentaries on the Laws of England. In American

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law, Blackstone’s work now functions as the definitive source for common law
precedents prior to the existence of the United States.

 RULE OF LAW

Origin And Concept Of Rule Of Law

The concept of “Rule of Law" is the building block on which the modern
democratic society is founded. For the successful functioning of the polity it is
imperative that there is enforcement of law and of all contracts based on law. Laws
are made for the welfare of the people to maintain harmony between the
conflicting forces in society. One of the prime objects of making laws is to
maintain law and order in society and develop a peaceful environment for the
progress of the people. The concept of Rule of Law plays an important role in this
process.

The term “Rule of Law" is derived from the French phrase 'La Principe de
Legality' (the principle of legality) which refers to a government based on
principles of law and not of men. In a broader sense Rule of Law means that Law
is supreme and is above every individual. No individual whether if he is rich, poor,
rulers or ruled etc are above law and they should obey it. In a narrower sense the
rule of law implies that government authority may only be exercised in accordance
with the written laws, which were adopted through an established procedure. The
principle of Rule of Law is intended to be a safeguard against arbitrary actions of
the government authorities. The rule of law has been described as a “rare and
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protean principle of our political tradition". The rule of law centrally comprises
“the values of regularity and restraint, embodied in the slogan of “‘a government of
laws, not men’". The term Rule of Law does not provide any thing about how the
laws are to be made, or anything specific like the Fundamental Rights or the
Directive principles or equality etc. but it provides for two basic concepts that is
Law must be obeyed by the people and that the law must be made in such a way
that it is able to guide the behaviour of its subjects. Different legal theorists have
different approaches towards the concept of Rule of Law. Some believe that the
rule of law has purely formal characteristics, meaning that the law must be publicly
declared, with prospective application, and possess the characteristics of
generality, equality, and certainty, but there are no requirements with regard to the
content of the law. While other legal theorists believe that the rule of law
necessarily entails protection of individual rights. Within legal theory, these two
approaches to the rule of law are seen as the two basic alternatives, respectively
labeled the formal and substantive approaches.

The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge
in the reign of Henry III in a way introduced the concept of Rule of Law without
naming it as Rule of Law. He wrote:

"The king himself ought to be subject to God and the law, because law makes him
king."

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Edward Coke is said to be the originator of concept of Rule of Law when he said
that the king must be under God and law and thus vindicated the supremacy of law
over the pretensions of the executives. In India, the concept of Rule of Law can be
traced back to the Upanishad. It provides that Law is the King of Kings. It is more
powerful and higher than the Kings and there is nothing higher than law. By its
powers the weak shall prevail over the strong and justice shall triumph. But the
credit for developing the concept of Rule of Law goes to Professor A.V. Dicey
who in his classic book “Introduction to the Study of the Law of the Constitution"
published in the year 1885 tried developing the concept of Rule of Law. As per
Diecy no man is punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before
the ordinary Courts of the land. This establishes the fact that law is absolutely
supreme and it excludes the existence of arbitrariness in any form. According to
Diecy where there is scope discretion there is room for arbitrariness. So Dicey
held that every man, whatever be his rank or condition, is subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary tribunals.

DICEY'S THEORY of Rule of Law consists of three main principles:

1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law

means the absolute supremacy of law and 'no man is punishable or can lawfully be
made to suffer in body or goods except for a distinct breach of law established in
the ordinary legal manner before the courts of the land. Diecy was of the view that

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all individuals whether if he is a common man or government authority are bound

to obey the law. He is of the view that no man can be punished for any thing else
than a breach of law which is already established. And also that the alleged offence
is required to be proved before the ordinary courts in accordance with ordinary
procedure.

2. Equality before Law: As per Diecy Rule of law, in the second principle, means
the equality of law or equal subjection of all classes of people to the ordinary law
of the land which is administered by the ordinary law courts. In this sense rule of
law conveys that no man is above the law. Even the Government Officials are
under a duty to obey the same law and there can be no other special courts for
dealing specifically with their matters.

3. Constitution is the result of the ordinary law of the land: As per Diecy , in many
countries rights such as right to personal liberty, freedom, arrest etc are provided
by the written Constitution of a Country. But in England these rights are a result of
the judicial decisions that have arisen due to the conflict between the parties. The
constitution is not the source but the consequence of the rights of the individuals.

But this principle of Diecy is not applicable in India as in India we consider the
Constitution to be the basic ground work of laws from which all other laws are
derived.

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COMPONENTS OF RULE OF LAW: Rule of Law is a dynamic concept but it is

somewhat difficult to define. Every person has its own way of defining rule of law
some think it to be the supremacy of law; some think it to be the principles like
clarity, universality, stability etc. Due to all these reasons certain ingredients of
Rule of Law have been identified and all which need to exsist for the concept of
Rule of Law to survive.

Common ingredients of Rule of Law are:

 a government bound by and ruled by law

 equality before the law
 the establishment of law and order;
 the efficient and predictable application of justice; and
 the protection of human rights.

Rule of law in modern era

Today Diecy's theory of rule of law cannot be accepted in its totality. The modern
concept of the rule of law is fairly wide and therefore sets up an ideal for any
government to achieve. This concept was developed by the International
Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on
confirmed at logos in 1961. According to this formulation-

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"The rule of law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of certain civil
or political rights but also creation of certain political, social, economical,
educational and cultural conditions which are essential to the full development of
his personality".

According to Davis, there are seven principal meanings of the term “Rule of law:
(1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of
law or fairness; (5) natural law or observance of the principles of natural justice;
(6) preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and (7) Judicial review of administrative actions. So
finally it may correctly be said that rule of law does not mean and cannot mean any
government under any law. It means the rule by a democratic law-a law which is
passed in a democratically elected parliament after adequate debate and discussion.
Likewise, Sir Ivor Jennings says -

"In proper sense rule of law implies a democratic system, a constitutional

government where criticism of the government is not only permissible but also a
positive merit and where parties based on competing politics or interests are not
only allowed but encouraged. Where this exist the other consequences of rule of
law must follow".

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 SEPRATION OF POWERS

The separation of powers is based on the principle of trias politica. The Doctrine
of Separation of Power is the forerunner to all the constitutions of the world, which
came into existence since the days of the “Magna Carta”. Though Montesquieu
was under the erroneous impression that the foundations of the British constitution
lay in the principle of Separation of Power, it found its genesis in the American
Constitution. Montesquieu had a feeling that it would be a panacea to good
governance but it had its own drawbacks. A complete Separation of power without
adequate checks and balances would have nullified any constitution. It was only
with this in mind the founding fathers of various constitutions have accepted this
theory with modifications to make it relevant to the changing times. The Doctrine
of “Separation of Powers”, a vintage product of scientific political philosophy is
closely connected with the concept of “judicial activism”. “Separation of Powers”
is embedded in the Indian Constitutional set up as one of its basic features. In India
the fountain-head of power is the Constitution. The sovereign power has been
distributed among the three-wings:

-Legislature -Executive -Judiciary

The doctrine of separation of powers envisages a tripartite system. Powers are

delegated by the Constitution to he three organs, and delineating the jurisdiction of
each.
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The position in India is that the doctrine of separation of powers has not been
accorded a constitutional status. In the Constituent Assembly there was a proposal
to incorporate this doctrine in the Constitution but it was knowingly not accepted
and as such dropped. Apart from the directive principles laid down in Article 50
which enjoins separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic and dogmatic division of powers.

Historical Background

The tripartite model of governance has its origin in Ancient Greece and Rome.
Though the doctrine is traceable to Aristotle but the writings of Locke and
Montesquieu gave it a base on which modern attempts to distinguish between
legislative, executive and judicial power is grounded.
The doctrine may be traced to ancient and medieval theories of mixed government,
which argued that the processes of government should involve the different
elements in society such as monarchic, aristocratic, and democratic interests. The
first modern formulation of the doctrine was that of the French writer Montesquieu
in De l’esprit des lois (1748), although the English philosopher John Locke had
earlier argued that legislative power should be divided between king and
parliament.
Locke distinguished between what he called:

 Discontinuous legislative power

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 Continuous executive power

 Federative power.

He included within ‘discontinuous legislative power’ the general rule-making

power called into action from time to time and not continuously. ‘Continuous
executive power’ included all those powers, which we now call executive and
judicial. By ‘federative power’ he meant the power of conducting foreign affairs.
Montesquieu’s division of power included a general legislative power and two
kinds of executive powers; an executive power in the nature of Locke’s ‘federative
power’ and a ‘civil law’ executive power including executive and judicial power.

It was Montesquieu who for the first time gave it a systematic and scientific
formulation in his book ‘Esprit des Lois (The Spirit of the laws) published in the
year 1748. Locke and Montesquieu derived the contents of this doctrine from the
developments in the British constitutional history of the 18 th Century. In England
after a long war between the Parliament and the King, they saw triumph of
Parliament in 1688, which gave Parliament legislative supremacy culminating in
the passage of Bill of Rights. This led ultimately to a recognition by the King of
legislative and tax powers of the Parliament and the judicial powers of the courts.
At that time, the King exercised executive powers, Parliament exercised legislative
powers and the courts exercised judicial powers, though later on England did not
stick to this structural classification of functions and changed to the parliamentary
form of government.
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After the end of the war of independence in America by 1787 the founding fathers
of the American constitution drafted the constitution of America and in that itself
they inserted the Doctrine of separation of power and by this America became the
first nation to implement the Doctrine of separation of power throughout the world.

The constituent Assembly Of France in 1789 was of the view that “there would be
nothing like a Constitution in the country where the doctrine of separation of
power is not accepted”. In France, where the doctrine was preached with great
force by Montesquieu, it was held by the more moderate parties in the French
Revolution. However the Jacobins, Napoleon I and Napoleon III discarded the
above theory for they believed in the concentration of power. But it again found its
place in the French Constitution of 1871.
Later Rousseau also supported the said theory propounded by Montesquieu.
England follows the parliamentary form of government where the crown is only a
titular head. The mere existence of the cabinet system negates the doctrine of
separation of power in England as the executive represented by the cabinet remains
in power at the sweet will of the parliament.
In India under the Indian constitution there is an express provision under article 50
of the constitution which clearly states that the state should take necessary steps to
separate judiciary from the executive i.e. independence of judiciary should be
maintained.

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Montesquieu’s Theory

According to this theory, powers are of three kinds: Legislative, executive and
judicial and that each of these powers should be vested in a separate and distinct
organ, for if all these powers, or any two of them, are united in the same organ or
individual, there can be no liberty. If, for instance, legislative and executive powers
unite, there is apprehension that the organ concerned may enact tyrannical laws
and execute them in a tyrannical manner. Again, there can be no liberty if the
judicial power be not separated from the legislative and the executive. Where it
joined the legislative, the life and liberty of the subject would be exposed to
arbitrary control, for the judge would then be the legislator. Where it joined with
the executive power, the judge might behave with violence and oppression.
Writing in 1748, Montesquieu said:

“When the legislative and the executive powers are united in the same person or in
the same body of magistrates, there can be no liberty, because apprehensions may
arise, lest the same monarch or senate should exact tyrannical laws, to execute
them in a tyrannical manner. Again there is no liberty if the judicial power be not
separated from the legislative and the executive. Where it joined with the
legislative, the life and the liberty of the subject would be exposed to arbitrary
control; for the judge would be then a legislator. Where it joined to the executive
power, the judge might behave with violence and oppression.

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There would be an end of everything, where the same man or the same body,
whether of nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions and of trying the causes of
individuals.”

The theory of separation of powers signifies three formulations of structural

classification of governmental powers:

 The same person should not form part of more than one of the three organs
of the government. For example, ministers should not sit in the Parliament.
 One organ of the government should not interfere with any other organ of
the government.
 One organ of the government should not exercise the functions assigned to
any other organ.

Now the question in subject is whether this doctrine finds a place in England?
In England the King being the executive head s also an integral part of the
legislature. His ministers are also members of one or other Houses of Parliament.
This concept goes against the idea that same person should not form part of more
than one organ of the Government.

In England House of Commons control the executive. So far as judiciary is

concerned, in theory House of Lords is the highest Court of the country but in
practice judicial functions are discharged by persons who are appointed specially

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for this purpose, they are known as Law Lords and other persons who held judicial
post. Thus we can say that doctrine of separation of powers is not an essential
feature of British Constitution.

Principle of Checks and Balances

The doctrine of separations of powers may be traced back to an earlier theory

known as the theory of mixed government from which it has been evolved. That
theory is of great antiquity and was adurnbrated in the writings of Polybius, a great
historian who was captured by the Romans in 167 BC and kept in Rome as a
Political hostage for 17 years in his history of Rome.
Polybius explained the reasons for the exceptional stability of Roman Government
which enabled Rome to establish a worldwide empire. He advanced the theory that
the powers of Rome stemmed from her mixed government. Unmixed systems of
government that is the three primary forms of government namely, Monarchy,
Aristocracy and Democracy – were considered by Polybius as inherently unstable
and liable to rapid degeneration.
The Roman constitutions counteracted that instability and tendency to degeneration
by a happy mixture of principles drawn from all the three primary forms of
government. The consuls, the senate and the popular Assemblies exemplified the
monarchical, the aristocratic and the democratic principles respectively.

The powers of Government were distributed between them in such a way that each
checked and was checked by the others so that an equipoise or equilibrium was
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achieved which imparted a remarkable stabiliy to the constitutional structure. It is

from the wok of Polybius that political theorist in the 17th Century evolved that
theory of separation of powers and the closely related theory of Checks and
Balances.

Effects
The doctrine of separation of powers as propounded by Montesquieu had
tremendous impact on the development of administrative law and functioning of
Governments. It was appreciated by English and American jurists and accepted by
politicians. In his book ‘Commentaries on the Laws of England’, published in
1765, Blackstone observed that if legislative, executive and judicial functions were
given to one man, there was an end of personal liberty. Madison also proclaimed:
“The accumulation of all powers, legislative and executive and judicial, in the
same hands, whether of one, a few or many and whether hereditary, self-appointed
or elective may justly be pronounced the very definition of tyranny.” The
Constituent Assembly of France declared in 1789 that there would be nothing like
a Constitution in the country where the doctrine of separation of powers was not
accepted.

Importance

The doctrine of separation of power in its true sense is very rigid and this is one of
the reasons of why it is not accepted by a large number of countries in the world.
The main object as per Montesquieu in the Doctrine of separation of power is that
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there should be government of law rather that having will and whims of the
official. Also another most important feature of the above said doctrine is that there
should be independence of judiciary i.e. it should be free from the other organs of
the state and if it is so then justice would be delivered properly. The judiciary is the
scale through which one can measure the actual development of the state if the
judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a
cent percent chance of misuse of power. Hence the Doctrine of separation of power
do plays a vital role in the creation of a fair government and also fair and proper
justice is dispensed by the judiciary as there is independence of judiciary.

Also the importance of the above said doctrine can be traced back to as early as
1789 where The constituent Assembly Of France in 1789 was of the view that
“there would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted”. Also in 1787 the American constitution
inserted the provision pertaining to the Doctrine of separation of power at the time
of drafting of the constitution in 1787.

Defects
Though, theoretically, the doctrine of separation of powers was very sound, many
defects surfaced when it was sought to be applied in real life situations. Mainly, the
following defects were found in this doctrine:

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a) Historically speaking, the theory was incorrect. There was no separation of

powers under the British Constitution. At no point of time, this doctrine was
adopted in England.
As Prof. Ullman says: “England was not the classic home of separation of powers.”
It is said: “Montesquieu looked across foggy England from his sunny vineyard in
Paris and completely misconstrued what he saw.”

b) This doctrine is based on the assumption that the three functions of the
Government viz legislative, executive and judicial are independent of
distinguishable from one another. But in fact, it is not so. There are no watertight
compartments. It is not easy to draw demarcating line between one power and
another with mathematical precision.

c) It is impossible to take certain actions if this doctrine is accepted in this entirety.

Thus, if the legislature can only legislate, then it cannot punish anyone, committing
a breach of its privilege; nor can it delegate any legislative function even though it
does not know the details of the subject-matter of the legislation and the executive
authority has expertise over it; nor could the courts frame frame rules of procedure
to be adopted by them for the disposal of cases. Separation of Powers, thus can
only be relative and not absolute.d) Modern State is a welfare State and it has to
solve complex socio-economic problems and in this state of affairs also, it is not
possible to stick to this doctrine. Jusice Frankfurter said; “Enforcement of a rigid
conception of separation of powers would make modern Government impossible.”

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Strict separation of powers is a theoretical absurdity and practical impossibility. e)

The modern interpretation of the doctrine of Separation of Powers mans that
discretion must be drawn between ‘essential’ and ‘incidental’ powers and one
organ of the Government cannot usurp or encroach upon the essential functions
belonging to another organ, but may exercise some incidental functions thereof. f)
Fundamental object behind Montesquieu’s doctrine was liberty and freedom of an
individual; but that cannot be achieved by mechanical divison of functions and
powers. In England, theory of Separation of Powers is not accepted and yet it is
known for the protection of individual liberty. For freedom and liberty, it is
necessary that there should be Rule of Law and impartial and independent
judiciary and eternal vigilance on the part of subjects.

Indian Outlook

In India, the doctrine of separation of powers has not been accorded a

constitutional status. Apart from the the directive principle laid down in Article 50
which enjoins separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic and dogmatic division of powers. The Supreme
Court in Ram JawayaKapur v. State of Punjab, held:

“Indian Constitution has not indeed recognized the doctrine of separation of

powers in its absolute rigidity but the functions of the different parts or branches of
the government have been sufficiently differentiated and consequently it can be

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very well said that our Constitution does not contemplate assumption by one organ
or part of the State of functions that essentially belong to another.”

In Indira Nehru Gandhi v. Raj Narain, Ray C.J.also observed that in the Indian
Constitution there is separation of powers in a broad sense only. A rigid separation
of powers as under the American Constitution or under the Australian Constitution
does not apply to India. However, the Court held that though the constituent power
is independent of the doctrine of separation of powers to implant the story of basic
structure as developed in the case of KesavanandaBharati v. State of Kerela on the
ordinary legislative powers will be an encroachment on the theory of separation of
powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic
structure of the Constitution. None of the three separate organs of the Republic can
take over the functions assigned to the other. This scheme of the Constitution
cannot be changed even by resorting to Article 368 of the Constitution.

In India, not only is there a functional overlapping but there is personnel

overlapping also. The Supreme Court has the power to declare void the laws
passed by the legislature and the actions taken by the executive if the violate any
provision of the Constitution or the law passed by the legislature in case of
executive actions. Even the power to amend the Constitution by Parliament is
subject to the scrutiny of the Court. The Court can declare any amendment void if
it changes he basic structure of the Constitution. The President of India in whom
the Executive Authority of India is vested exercises law making power in the shape

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of ordinance making power and also the judicial powers under Article 103(1) and
Article 217(3) to mention only a few. The Counsel of Ministers is selected from
the Legislature and is responsible to the Legislature. The Legislature besides
exercising law making powers exercises judicial powers incases of breach of its
privilege, impeachment of the President and the removal of the judges. The
Executive may further affect the functioning of the judiciary by making
appointments to the office of the Chief Justice and other Judges.

Judicial Opinion on the Doctrine of Separation of Powers

The separation of power there were times where the judiciary has faced tough
challenges in maintaining and preserving the Doctrine of separation of power and
it has in the process of preservation of the above said Doctrine has delivered
landmark judgments which clearly talks about the independence of judiciary as
well as the success of judiciary in India for the last six decades.

The first major judgment by the judiciary in relation to Doctrine of separation of

power was in Ram Jawaya v state of Punjab[xxv]. The court in the above case
was of the opinion that the Doctrine of separation of power was not fully accepted
in India. Further the view of Mukherjea J adds weight to the argument that the
above said doctrine is not fully accepted in India. He states that:

“The Indian constitution has not indeed recognize the doctrine of separation of
powering its absolute rigidity but the functions of the different parts or branches of

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the government have been sufficiently differentiated and consequently it can very
well be said that our constitution does not contemplate assumption, by one organ
or part of the state, of functions that essentially belong to another”.

Later in I.C.GolakNath v State of Punjab, SubhaRao, C.J opined that

“The constitution brings into existence different constitutional entitles, namely the
union, the state and the union territories. It creates three major instruments of
power, namely the Legislature, the Executive and the Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers without
overstepping there limits. They should function with the spheres allotted to them”

The above opinion of the court clearly states the change in the courts view
pertaining to the opinion in the case of Ram Jawaya v State of Punjab related to the
doctrine of separation of power. The came one of the most land mark judgments
delivered by the Supreme Court in KeshvanandaBharti v Union of Indiathe court
was of the view that amending power was now subject to the basic features of the
constitution. And hence, any amendment tampering these essential features will be
struck down as unconstitutional. Beg, J. added that separation of powers is a part of
the basic structure of the constitution. None of the three separate organs of the
republic can take over the functions assigned to the other7. Hence this further
confirmed the opinion of the court in relation to the doctrine of separation of
power.

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Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M.
election was pending before the Supreme Court, opined that adjudication of a
specific dispute is a judicial function which parliament, even under constitutional
amending power, cannot exercise i.e. the parliament does not have the jurisdiction
to perform a function which the other organ is responsible for otherwise there will
be chaos as there will be overlapping of the jurisdictions of the three organs of the
state. Also the constituent Assembly Of France in 1789 was of the view that “there
would be nothing like a Constitution in the country where the doctrine of
separation of power is not accepted. So if there is a provision then there should be
proper implementation and this judgment emphasis on that point only.

Also in I.R. Coelho vs. State of Tamil Nadu[xxvii], S.C. took the opinion opined
by the Supreme court in Kesavananda Bharaticase pertaining to the doctrine of
basic structure

and held that the Ninth Schedule is violative of the above said doctrine and hence
from now on the Ninth Schedule will be amenable to judicial review which also
forms part of the basic structure theory..

From the above few case laws right from Ram Jawaya v state of Punjab in
1955 to I.R. Coelho vs. State of Tamil Nadu inthere has been a wide change of
opinion as in the beginning the court was of the opinion that as such there is no
Doctrine of Seperation of Power in the constitution of India but then as the passage

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of time the opinion of the Supreme Court has also changed and now it do includes
the above said Doctrine as the basic feature of the Constitution.

 PRINCIPLES OF NATURL JUSTICE

The principle of natural justice or fairness is the sine qua non of a democratic
government.

Principles of natural justice includes:

 Rule against bias: Bias may include:

(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental
Bias; (v) Preconceived notion bias.

 (b) Rule of audi alteram Partem: This right to fair hearing includes:

(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right to rebut
evidence; (iv) Right to cross-examination and legal re presentation; (v) Right to
reasoned decision, etc.

 (c) Reasoned Decision

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‘Bias’ means an operative prejudice, whether conscious or unconscious, in

relation to a party or issue. This is the idea that the judge may well have
“strong views" or “preconceived ideas" concerning the case before them.

Bias arising out of preconceived notions is the subject of this paper. The problem is
that no judge can be expected to keep his mind blank like a sheet of paper, but at
the same time, preconceived notions would defeat the very purpose of a fair trial.
A celebrated judgment to illustrate this point came in the English case of Franklin
v Minister of Town and Country Planning where the House of Lords stated that the
minister had a genuine duty to give consideration to a report of an inspector
concerning the siting of a new town at Stevenage and to consider objections to that
position. It was held that reference to bias was out of place in this situation.
However, even though the result is the same, the reasoning of the Court of Appeal
is to be preferred, which stated that complete impartiality cannot be expected.
Also, impartiality in the context of a minister making a decision, such as the siting
of a new town, would not be the same as when a Magistrate decides a
case. However, while complete impartiality is difficult to achieve, procedural
fairness may require the minister to still hear representations.

Again, in R. v. Secretary of State for the Environment, ex p. Brent London

Borough Council, the applicant local authorities claimed that they should be
entitled to make such representations to the minister as to the way in which he
should use his powers in issuing local authority grants. The court held that the

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minister was under a duty to act fairly in the way he exercised his discretion under
the legislation, although the court accepted that the minister would not be expected
to hear such representations if he were a judge. The minister would not be expected
to approach the matter with “an empty mind" but, in the words of the court, the
mind should “at least be ajar".

In Govindaraja Mudaliar v State of Tamil Nadu, the government decided to

nationalize road transport and appointed a committee to frame a scheme for this.
The Home Secretary was made a member of this committee. When the scheme was
finally published, objections were heard by the Home Secretary, but the scheme
was subsequently passed without any modifications. It was contended that the
hearing was vitiated by the rule against bias because the Secretary being a member
of the Committee that framed the scheme had already made up his mind about the
nationalization. The Court rejected this contention on the ground that the Secretary
did not finally determine any issue so as to foreclose his mind. He simply helped
the Government in formulating the scheme. Similarly, in Kondala Rao v.
APSRTC , the court did not quash the nationalization of road transport order of a
minister on the challenge that the same minister had presided over a meeting only a
few days earlier in which nationalization was favored. The court instead took the
view that the committee’s decision was not final and irrevocable, but merely a
policy decision.

The problem of bias arising out of preconceived notions

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The problem of bias arising from preconceived notions may have to be disposed of
as an inherent limitation of the administrative process. It is useless to accuse a
public officer of bias merely because he is predisposed in favor of some policy in
the larger interest of the public. As a wise man had once stated, “we are each
burdened with prejudice; against the poor or the rich, the smart or the slow, the
gaunt or the obese. It is natural to develop prejudices. It is noble to rise above
them."

SALIENT FEATURES OF CONSTITUTION OF INDIA

Salient Features of Indian Constitution

Originally having 395 Articles divided into 22 parts and 8 schedules, a lengthiest
constitution of the world with systematic elaboration on every topic. At present, it
contains 448 Articles with 12 schedules as a result of various amendments (101 till
so far, GST Amendment).

Longest written constitution: The constitution of India is said to be the longest

written constitution in the world because, it contains:
• Separate provisions for states and centre and their inter-relationship.
• The borrowed provisions from several sources and several other constitutions of
the world.
• The separate provisions for scheduled castes, scheduled tribes, women, children,
and backward regions.

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• It contains the detailed list of individual rights, directive principles of state policy
and details of administration procedures which were laid down to make the
constitution an easy handy.

Unique blend of rigidity and flexibility: A Constitution may be called rigid or

flexible on the basis of its amending procedure.
• Some parts can be amended by ordinary law making procedure while certain
provisions can be amended only when a Bill for that purpose is passed in each
house of Parliament by a majority of the total membership of that house and by a
majority of not less than two-third of the members of that house present and
voting.
• Some amendments are also required to be ratified by the legislatures of not less
than one-half of the states before being presented to the President for assent.

India as a sovereign, socialist, secular, democratic and republic: India is

governed by its people through their representatives elected on the basis of
universal adult franchise (Government of the people, by the people and for the
people).
• India as a sovereign means it manages its internal and external affairs freely
without any external forces. However, it continues to be a member of the
commonwealth of Nation with the British Monarch as its head.
• The term socialist is added by the 42nd Amendment in 1976, means achievement
of socialist goals through democratic, evolutionary and non-violent means.
However, India follows the mixed model of socialist and capitalist economy.
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• By secular means it recognizes all religions equally without having any state
religion which is a part of the basic structure.
• By republic means head of the state (President) is elected one and not the
monarch.

Parliamentary System of Government: Theoretically, Parliament controls the

functioning of the Council of Ministers; hence it is called Parliamentary system.
• Here executive is responsible to the legislature and remains in power as long as it
enjoys the confidence of the legislature.
• The President of India, who remains in office for five years, is the nominal, titular
or constitutional head (Executive).
• The Prime Minister is the real executive and head of the Council of Ministers
who is collectively responsible to the lower house (Lok Sabha).

Single Citizenship: Unlike Federation, where citizen enjoys dual citizenship of

both State and Union, India has a single citizenship provided by the union and
recognized by all the states across India.

Universal Adult Franchise: The Indian Constitution establishes political equality

in India through the method of universal adult franchise which functions on the
basis of ‘one person one vote’. Every Indian who is 18 years of age or above is
entitled to vote in the elections, irrespective of caste, sex, race, religion or status.

Independent and Integrated Judicial System: The judiciary system is kept free
from the influence of the executive and the legislature. As an integrated system,

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India has the Supreme Court as the apex court below which High Courts come.
The High Courts in turn supervise the lower courts.

Fundamental Rights, Fundamental Duties and Directive Principles of State

Policy: Fundamental Rights are not absolute but are subject to the limitations
which are expressly defined by the constitution itself and are enforceable in the
court of law.
• The DPSPs are the guidelines to be followed by the states regarding governance
and are not enforceable in the court of law.
• The Fundamental Duties, added by the 42nd Amendment are moral conscience
which ought to be followed by the Citizens.

A Federation with a strong centralizing tendency: India is an indestructible

Union with destructible states means it acquires a unitary character during the time
of emergency. Hence, some experts say it as a quasi federal in nature.

JBalancing Parliamentary supremacy with Judicial Review: An independent

judiciary with the power of judicial review is a prominent feature of our
constitution. The harmonization which our Constitution has effected between
Parliamentary Sovereignty and a written Constitution with a provision for Judicial
Review is an important achievement of the framers of our Constitution.

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JUDICIAL SYSTEMS IN INDIA

 HIERARCHY AND JURISDICTION OF COURTS

The feature Indian judiciary system is its hierarchical structure of courts. There are
different levels of judiciary system in India empowered with distinct type of courts.
The courts are structured with very strong judiciary and hierarchical system as per
the powers bestowed upon them. This system is strong enough to make
limitation of court with its jurisdiction and exercise of the power. The Supreme
Court of India is placed at the top of the hierarchical position followed by High
Courts in the regional level and lower courts at micro level with the assignment of
power and exercising of the same for the people of India.

Supreme Court of India

Supreme Court of India is the highest level of court of Indian juridical

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

 Constitution Regulation

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As conferred by Articles 124 to 147 of Indian Constituency, the jurisdiction and

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

These types of petitions are accepted under Article 32 of Indian

constitution. This article confers the right to ensure remedies through constitution.
This court also hears about such serious issues which need to be attended with
immediate attention.

 History

This court has started its operation since 28th January 1950 with the inaugural
sitting, the day since when the constitution of independent India had been
effectively applicable. The court had already taken care of more than 24,000
judgments as per report of the Supreme Court.

 Structure and Application

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

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

High Court of India

 Constitution

High Courts are second Courts of Importance of the democracy of India.They

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

High courts are the types of courts which are instituted as the courts powered by
constitution with the effect of Article 214 Part IV Chapter V of the Indian

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Constitution. There are 24 high courts in India taking care of the regional juridical
system of India out of which Kolkata High Court is the oldest.

 Jurisdiction

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

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

But normally the high courts are involved in the appeals raised in the cases of
lower courts with the writ petitions as conferred in Article 226 of the Constitution

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of India. The area of writ petitions is also the sole jurisdiction of high courts. The
jurisdiction of High Court is varying so far territorial jurisdiction is considered.

 Official structure and application

The appointment of the judges of High Courts are being executed by the
President of India with the consultation of the Chief Justice of India, the Chief
Justice of High Court and the Governor of the state or union territory.

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

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

Lower Courts of India

 District Courts

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 Constitution

The basis of structuring of district courts in India is mainly depending upon

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

Normally these types of courts exercise their power of juridical service in

district level. These courts are covered by the administrative power of the High
Courts under which the district courts are covered. The judgments of the district
courts are subject to review to the appellate jurisdiction of the respective high
court.

 Structure and Jurisdiction

The district courts are mainly run by the state government appointed district
judges. There are additional district judges and assistant district judges who are
there to share the additional load of the proceedings of District Courts. These
additional district judges have equal power like the district judges for the
jurisdiction area of any city which has got the status of metropolitan area as
conferred by the state government. These district courts have the additional

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jurisdictional authority of appeal handling over the subordinate courts which are
there in the same district specifically in the domain of civil and criminal affairs.

The subordinate courts covering the civil cases, in this aspect are considered
as Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court,
which are also known as Sub Courts, Subordinate Courts. All these courts are
treated with ascending orders. The subordinate courts covering the criminal cases
are Second Class Judicial Magistrate Court, First Class Judicial Magistrate
Court, and Chief Judicial Magistrate Court along with family courts which are
founded to deal with the issues related to disputes of matrimonial issues only. The
status of Principal Judge of family court is at par with the District Judge.

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

 Village Courts

 Constitution Structures and Features

The village courts are named as Lok Adalat or Nyaya Panchyat which means
the service of justice extended to the villagers of India. This is the system for
resolving disputes in micro level. The need of these courts is justified though
the Madras Village Court Act of 1888. This act is followed by the development

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post 1935 in different provinces, which are re-termed as different states after the
independence of 1947.

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

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

The Hierarchical Structure of Indian Courts

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UNIT IV

LEGAL WRITING AND RESEARCH

 STATUTE

A statute is a written law passed by a legislature on the state or federal level. Statut
es set forth general propositions of lawthat courts apply to specific situations. A sta
tute may forbid a certain act, direct a certain act, make a declaration, or set forthgo
vernmental mechanisms to aid society.

A statute begins as a bill proposed or sponsored by a legislator. If the bill survives t

he legislative committee process and isapproved by both houses of the legislature, t
he bill becomes law when it is signed by the executive officer (the president onthe
federal level or the governor on the state level). When a bill becomes law, the vario
us provisions in the bill are calledstatutes. The term statute signifies the elevation o
f a bill from legislative proposal to law. State and federal statutes arecompiled in st
atutory codes that group the statutes by subject. These codes are published in book
form and are available atlaw libraries.

Lawmaking powers are vested chiefly in elected officials in the legislative branch.
The vesting of the chief lawmaking powerin elected lawmakers is the foundation o
f a representative democracy. Aside from the federal and state constitutions, statute

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spassed by elected lawmakers are the first laws to consult in finding the law that ap
plies to a case.

The power of statutes over other forms of laws is not complete, however. Under th
e U.S. Constitution and state constitutions,federal and state governments are compr
ised of a system of checks and balances among the legislative, executive, andjudici
al branches. As the system of checks and balances plays out, the executive and judi
cial branches have the opportunityto fashion laws within certain limits. The

ExecutiveBranch may possess certain lawmaking powers under the federal orstate
constitutions, and the judiciary has the power to review statutes to determine whet
her they are valid under thoseconstitutions. When a court strikes down a statute, it i
n effect creates a law of its own that applies to the general public.

Laws created through judicial opinion stand in contradistinction to laws created in

statutes. Case law has the same legallybinding effect as statutory law, but there are
important distinctions between statutes and case law. Case law is written byjudges,
not by elected lawmakers, and it is written in response to a specific case before the
court. A judicial opinion may beused as precedent for similar cases, however. This
means that the judicial opinion in the case will guide the result in similarcases. In t
his sense a judicial opinion can constitute the law on certain issues within a particu
lar jurisdiction. Courts canestablish law in this way when no statute exists to gover
n a case, or when the court interprets a statute.

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For example, if an appeals court holds that witness testimony on memory recovere
d through therapy is not admissible at trial,that decision will become the rule for si
milar cases within the appeals court's jurisdiction. The decision will remain law unt
ilthe court reverses itself or is reversed by a higher court, or until the state or federa
l legislature passes a statute that overridesthe judicial decision. If the courts strike d
own a statute and the legislature passes a similar statute, the courts may have anop
portunity to declare the new statute unconstitutional. This cycle can be repeated ov
er and over if legislatures continuallytest the constitutional limits on their lawmaki
ng powers.

Judicial opinions also provide legal authority in cases that are not covered by statut
e. Legislatures have not passed statutesthat govern every conceivable dispute. Furt
hermore, the language contained in statutes does not cover every possiblesituation.
Statutes may be written in broad terms, and judicial opinions must interpret the lan
guage of relevant statutesaccording to the facts of the case at hand. Regulations pas
sed by administrative agencies also fill in statutory gaps, andcourts occasionally ar
e called on to interpret regulations as well as statutes.

Courts tend to follow a few general rules in determining the meaning or scope of a
statute. If a statute does not providesatisfactory definitions of ambiguous terms, co
urts must interpret the words or phrases according to ordinary rules ofgrammar and
dictionary definitions. If a word or phrase is technical or legal, it is interpreted wit
hin the context of the statute.For example, the term interest can refer to a monetary
charge or ownership of property. If the term interest appears in thecontext of a stat
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ute on real estate ownership, a court will construe the word to mean property owne
rship. Previousinterpretations of similar statutes are also helpful in determining a st
atute's meaning.

Statutes are not static and irreversible. A statute may be changed or repealed by the
lawmaking body that enacted it, or itmay be overturned by a court. A statute may l
apse, or terminate, under the terms of the statute itself or under legislative rulesthat
automatically terminate statutes unless they are reapproved before a certain amoun
t of time has passed.

Although most legal disputes are covered at least in part by statutes, TORT and cont
ract disputes are exceptions, in that theyare largely governed by case law. Crimina
l Law, patent law, tax law, Property
Law, and Bankruptcy law are among theareas of law that are covered first and for
emost by statute.

REPORTS

A law report is a record of a judicial decision on a point of law which sets a

precedent.

Not all decisions taken in a court of law set a precedent, however interesting they
may be in terms of the facts of the case or its consequences. A decision is only
reportable if lays down a new principle of law, or changes or clarifies the existing
law.

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It is therefore important to distinguish between those cases which do indeed lay

down, change or clarify the law, and which therefore need to be reported, and those
which don’t; and ensure that any report of a reportable case clearly states all the
relevant information so that it can be relied upon by students, teachers,
practitioners and judges as an accurate and authoritative statement of the principle
of law (the “ratio decidendi”) on which the case was decided.

Note: A judgment transcript is not a law report!

However important the case, the transcript of a judgment does not have the same
value, as a record of the decision contained in it, as a full text law report. Where,
therefore, a law report is available, particularly where the case has been reported in
one of the official series, The Law Reports, published by ICLR, it must be cited
and referred to in that version in preference for any other: see Practice Direction
(Citation of Authorities) [2012] 1 WLR 780.

Different types of law report

Law reports fall into two broad types.

Full text law reports incorporate the full judgment(s) given by the court, together
with a summary of the case known as the headnote and a number of other
elements.

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Summary reports, also known as case summaries, digests, case notes etc, consist of
summaries or abridgements of the judgment, and are presented in a less formal
way than a full text law report.

For obvious reasons, full text reports enjoy higher status than summary reports and
should be cited in preference for them. The function of summary reports is either to
alert practitioners and students to cases which may not merit reporting in full, or to
act as an early warning system in advance of the full report which for obvious
reasons may take longer to write, edit and publish.

Where a case is not reported in a full text law report, but a transcript of the
judgment is available, this may be cited in conjunction with a summary report.
However, the combination of a summary report and a transcript does not enjoy the
same status as a full text law report where one is available, for reasons which will
become clear once one appreciates the amount of careful editorial work that goes
into preparing the full report.

JOURNALS

Law Journal Definition:

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.

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Also known as:

 legal periodicals;
 legal journals; or
 law review.
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
specific to a jurisdiction.

The information is presented in the form of essays or articles.

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, such as The Advocate (published by the Vancouver Bar
Association).

BILLS

A bill is proposed legislation under consideration by a legislature. A bill does not

become law until it is passed by the legislature and, in most cases, approved by

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the executive. Once a bill has been enacted into law, it is called an act of the
legislature, or a statute.

The term bill is primarily used in Anglophone nations. In the United Kingdom, the
parts of a bill are known as clauses, until it has become an act of parliament, from
which time the parts of the law are known as sections. Bills are generally
considered through a number of readings. This refers to the historic practice of the
clerical officers of the legislature reading the contents of a bill to the legislature.
While the bill is no longer read, the motions on the bill still refer to this practice.

In the British/Westminster system, a bill is read the first time when it is introduced.
This is accompanied by an order that the bill be printed and considered again. At
the second reading the general merits of the bill are considered – it is out of order
to criticise a bill at this stage for technical defects in drafting. After the second
reading the bill is referred to a committee, which considers the bill line by line
proposing amendments. The committee reports to the legislature, at which stage
further amendments are proposed. Finally a third reading debate at which the bill
as amended is considered in its entirety. In a bicameral legislature the process is
repeated in the other house, before the Bill is submitted to the executive for
approval. Where a piece of primary legislation is termed an act, the process of a
bill becoming law may be termed enactment. Once a bill is passed by the
legislature, it may automatically become law, or it may need further approval, in
which case enactment may be effected by the approver's signature or proclamation.

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ACT

Laws are actually rules and guidelines that are set up by the social institutions to
govern behavior. These laws are made by government officials. Laws must be
obeyed by all. Laws set out standards, procedures and principles that must be
followed. Acts can be classified as two things: A document that records a fact,
something said or something done. It can also be known as a law or statue that has
been enacted by the government. Acts are basically rules that have noted down a
piece of paper. Acts, if passed, are then turned into laws.

CASE ANALYSIS AND BRIEFING ( CITATION & BBKIOGRAPHY)

Legal writing is a type of technical writing used by lawyers, judges, legislators,

and others in law to express legal analysis and legal rights and duties.

In many legal settings specialized forms of written communication are required. In

many others, writing is the medium in which a lawyer must express their analysis
of an issue and seek to persuade others on their clients' behalf. Any legal document
must be concise, clear, and conform to the objective standards that have evolved in
the legal profession.

Authority

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Legal writing places heavy reliance on authority. In most legal writing, the writer
must back up assertions and statements with citations to authority. This is
accomplished by a unique and complicated citation system, unlike that used in any
other genre of writing. The standard methods for American legal citation are
defined by two competing rulebooks: the ALWD Citation Manual: A Professional
System of Citation and The Bluebook: A Uniform System of Citation. Different
methods may be used in other countries.

Precedent

Legal writing values precedent, as distinct from authority. Precedent means the
way things have been done before. For example, a lawyer who must prepare a
contract and who has prepared a similar contract before will often re-use, with
limited changes, the old contract for the new occasion. Or a lawyer who has filed a
successful motion to dismiss a lawsuit may use the same or a very similar form of
motion again in another case, and so on. Many lawyers use and re-use written
documents in this way and call these re-usable documents templates or, less
commonly, forms.

Vocabulary

Legal writing extensively uses technical terminology that can be categorised in

four categories:

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Specialized words and phrases unique to law, e.g., tort, fee simple, and novation.

Quotidian words having different meanings in law, e.g., action (lawsuit),

consideration (support for a promise), execute (to sign to effect), and party (a
principal in a lawsuit).

Archaic vocabulary: legal writing employs many old words and phrases that were
formerly quotidian language, but today exist mostly or only in law, dating from the
16th century; English examples are herein, hereto, hereby, heretofore, herewith,
whereby, and wherefore (pronominal adverbs); said and such (as adjectives).

Loan words and phrases from other languages: In English, this includes terms
derived from French (estoppel, laches, and voir dire) and Latin (certiorari, habeas
corpus,prima facie, inter alia, mens rea, sub judice) and are not italicised as English
legal language, as would be foreign words in mainstream English writing.

Formality

These features tend to make legal writing formal. This formality can take the form
of long sentences, complex constructions, archaic and hyper-formal vocabulary,
and a focus on content to the exclusion of reader needs. Some of this formality in
legal writing is necessary and desirable, given the importance of some legal
documents and the seriousness of the circumstances in which some legal
documents are used. Yet not all formality in legal writing is justified. To the extent

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that formality produces opacity and imprecision, it is undesirable. To the extent

that formality hinders reader comprehension, it is less desirable. In particular,
when legal content must be conveyed to nonlawyers, formality should give way to
clear communication.

What is crucial in setting the level of formality in any legal document is assessing
the needs and expectations of the audience. For example, an appellate brief to the
highest court in your jurisdiction calls for a formal style—this shows proper
respect for the court and for the legal matter at issue. An interoffice legal
memorandum to a supervisor can probably be less formal—though not
colloquial—because it is an in-house decision-making tool, not a court document.
And an email message to a friend and client, updating the status of a legal matter,
is appropriately informal.

Transaction documents—legal drafting—fall on a similar continuum. A 150-page

merger agreement between two large corporations, in which both sides are
represented by counsel, will be highly formal—and should also be accurate,
precise, and airtight (features not always compatible with high formality). A
commercial lease for a small company using a small office space will likely be
much shorter and will require less complexity, but may still be somewhat formal.
But a proxy statement allowing the members of a neighborhood association to
designate their voting preferences for the next board meeting ought to be as plain
as can be. If informality aids that goal, it is justified.

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Legal writing should be understood in a such way that acknowledges the

technical complexity inherent in law and the justified formality that complexity
often requires, but with an emphasis on clarity, simplicity, and directness. Yet
many practicing lawyers, busy as they are with deadlines and heavy workloads,
often resort to a template-based, outdated, hyperformal writing style in both
analytical and transactional documents. This is understandable, but it sometimes
unfortunately perpetuates an unnecessarily formal legal writing style.

Categories of legal writing

Legal writing is of two, broad categories: (i) legal analysis and (ii) legal drafting.
Legal analysis is two-fold: (1) predictive analysis, and (2) persuasive analysis. In
the most law schools students must learn legal writing; the courses focus on: (1)
predictive analysis, i.e., an outcome-predicting memorandum (positive or negative)
of a given action for the attorney's client; and (2) persuasive analysis, e.g., motions
and briefs. Although not as widely taught in law schools, legal drafting courses
exist; other types of legal writing concentrate upon writing appeals or on
interdisciplinary aspects of persuasion.

Predictive legal analysis

The legal memorandum is the most common type of predictive legal analysis; it
may include the client letter or legal opinion. The legal memorandum predicts the
outcome of a legal question by analyzing the authorities governing the question

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and the relevant facts that gave rise to the legal question. It explains and applies the
authorities in predicting an outcome, and ends with advice and recommendations.
The legal memorandum also serves as record of the research done for a given legal
question. Traditionally, and to meet the legal reader's expectations, it is formally
organized and written.

Persuasive legal analysis

The persuasive document, a motion or a brief, attempts to persuade a deciding

authority to favorably decide the dispute for the author's client. Motions and briefs
are usually submitted to judges, but also to mediators, arbitrators, and others. In
addition a persuasive letter may attempt to persuade the dispute's opposing party.

Persuasive writing is the most rhetorically stylized. So although a brief states the
legal issues, describes authorities, and applies authorities to the question—as does
a memorandum—the brief's application portion is framed as an argument. The
author argues for one approach to resolving the legal matter and does not present a
neutral analysis.

The drafting of legal documents, such as contracts and wills, is yet another type of
legal writing. Guides are available to aid a lawyer in preparing the documents but a
unique application of the "form" to the facts of the situation is often required. Poor

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drafting can lead to unnecessary litigation and otherwise injure the interests of a
client.

Legal drafting

Legal drafting creates binding, legal text. It includes enacted law like statutes,
rules, and regulations; contracts (private and public); personal legal documents like
wills and trusts; and public legal documents like notices and instructions. Legal
drafting requires no legal authority citation, and generally is written without a
stylised voice.

Legal writing faces a trade off in attempting to cover all possible contingencies
while remaining reasonably brief. Legalese is characterized by a shift in priority
towards the former of these concerns. For example, legalese commonly uses
doublets and triplets of words (e.g., "null and void" and "dispute, controversy, or
claim") which may appear redundant or unnecessary to laymen, but to a lawyer
might reflect an important reference to distinct legal concepts.

Broadly, a citation is a reference to a published or unpublished source (not always

the original source). More precisely, a citation is an abbreviated alphanumeric
expression (e.g. [Newell84]) embedded in the body of an intellectual work that
denotes an entry in the bibliographic references section of the work for the purpose
of acknowledging the relevance of the works of others to the topic of discussion at
the spot where the citation appears. Generally the combination of both the in-body

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citation and the bibliographic entry constitutes what is commonly thought of as a

citation (whereas bibliographic entries by themselves are not). References to
single, machine-readable assertions in electronic scientific articles are known as
nanopublications, a form of microattribution.

Citation has several important purposes: to uphold intellectual honesty,to attribute

prior or unoriginal work and ideas to the correct sources, to allow the reader to
determine independently whether the referenced material supports the author's
argument in the claimed way, and to help the reader gauge the strength and validity
of the material the author has used.

The forms of citations generally subscribe to one of the generally accepted

citations systems, such as the Oxford, Harvard, MLA, American Sociological
Association (ASA), American Psychological Association (APA), and other
citations systems, as their syntactic conventions are widely known and easily
interpreted by readers. Each of these citation systems has its respective advantages
and disadvantages relative to the trade-offs of being informative (but not too
disruptive) and thus are chosen relative to the needs of the type of publication
being crafted. Editors will often specify the citation system to use.

Bibliographies, and other list-like compilations of references, are generally not

considered citations because they do not fulfil the true spirit of the term: deliberate
acknowledgement by other authors of the priority of one's ideas.

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Concepts

A bibliographic citation is a reference to a book, article, web page, or other

published item. Citations should supply sufficient detail to identify the item
uniquely. Different citation systems and styles are used in scientific citation, legal
citation, prior art, and the arts and the humanities.

Citation content

Citation content can vary depending on the type of source and may include:

Book: author(s), book title, publisher, date of publication, and page number(s) if
appropriate.

Journal: author(s), article title, journal title, date of publication, and page
number(s).

Newspaper: author(s), article title, name of newspaper, section title and page
number(s) if desired, date of publication.

Web site: author(s), article and publication title where appropriate, as well as a
URL, and a date when the site was accessed.

Interview: name of interviewee, interview descriptor (ex. personal interview) and

date of interview.

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Unique identifiers

Along with information such as author(s), date of publication, title and page
numbers, citations may also include unique identifiers depending on the type of
work being referred to.

Citations of books may include an International Standard Book Number (ISBN).

Specific volumes, articles or other identifiable parts of a periodical, may have an

associated Serial Item and Contribution Identifier (SICI).

Electronic documents may have a digital object identifier (DOI).

Biomedical research articles may have a PubMed Identifier (PMID).

A citation number, used in some citation systems, is a number or symbol added

inline and usually in superscript, to refer readers to a footnote or endnote that cites
the source. In other citation systems, an inline parenthetical reference is used rather
than a citation number, with limited information such as the author's last name,
year of publication, and page number referenced; a full identification of the source
will then appear in an appended bibliography.

Citation systems

Broadly speaking, there are two citation systems:

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Note systems

Note systems involve the use of sequential numbers in the text which refer to either
footnotes (notes at the end of the page) or endnotes (a note on a separate page at
the end of the paper) which gives the source detail. The notes system may or may
not require a full bibliography, depending on whether the writer has used a full
note form or a shortened note form.

For example, an excerpt from the text of a paper using a notes system without a
full bibliography could look like this:

"The five stages of grief are denial, anger, bargaining, depression, and acceptance."

The note, located either at the foot of the page (footnote) or at the end of the paper
(endnote) would look like this:

1. Elisabeth Kübler-Ross, On Death and Dying (New York: Macmillan, 1969) 45–
60.

In a paper which contains a full bibliography, the shortened note could look like
this:

1. Kübler-Ross, On Death and Dying 45–60.

and the bibliography entry, which would be required with a shortened note, would
look like this:
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Legal citation is the practice of crediting and referring to authoritative documents

and sources. The most common sources of authority cited are court decisions
(cases), statutes, regulations, government documents, treaties, and scholarly
writing. Typically, a proper legal citation will inform the reader about a source's
authority, how strongly it supports the writer's proposition, its age, and other,
relevant information. This is an example citation to a United States Supreme Court
court case

This citation gives helpful information about the cited authority to the reader.

The names of the parties are Griswold and Connecticut. Generally, the name of the
plaintiff (or, on appeal, petitioner) appears first, whereas the name of the defendant
(or, on appeal, respondent) appears second. Thus, the case is Griswold v.
Connecticut.

The case is reported in volume 381 of the United States Reports (abbreviated
"U.S."). The case begins on page 479 of that volume of the reporter. The
authoritative supporting material for the writer's proposition is on page 480. The
reference to page 480 is referred to as a "pin cite" or "pinpoint".

The Supreme Court decided the case. Because the U.S. Reports publish only cases
that the Supreme Court decides, the court deciding the case may be inferred from
the reporter.

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The authority supports the proposition directly because it is not qualified with a
signal. If it had offered only indirect or inferential support for the proposition, the
author should have preceded the cite with a qualifying signal such as see or cf.

Legal citation analysis

During a legal proceeding, a 'legal citation analysis' - i.e. using citation analysis
technique for analyzing legal documents - facilitates the better understanding of the
inter-related regulatory compliance documents by the exploration the citations that
connect provisions to other provisions within the same document or between
different documents. Legal citation analysis uses a citation graph extracted from a
regulatory document, which could supplement E-discovery - a process that
leverages on technological innovations in big data analytics.

KINDS OF LEGAL RESEACH:

According to the Oxford Advanced Learner’s Dictionary, research means ‘a

careful study of a subject, especially to find or discover new facts about it’.
Research therefore involves gathering information for a purpose, and it is the
purpose that usually determines the type of research undertaken and how it is
conducted. Legal research would, in a similar vein, involve the collection of legal
materials for the purpose of discovering new facts that would contribute to the
body of knowledge in a legal field or subject. Legal research is defined by legal
studies since it is the materials that are used in legal studies and the topics that are

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taught and learnt that determine legal research. In a similar light, legal studies are
also defined by legal research as the discoveries of legal research shape legal
studies. Research is usually a daunting task, and the style adopted may differ
according to the educational system, the supervisor, or even the researcher, as, like
many other tasks, developing a personal style is the most important factor to
enjoying the process and achieving desired results.

Doctrinal Research: It is a theoretical research and it is pure in nature.

Conventional legal sources like reports of committees, legal history, judicial
pronouncements, facts passed by legislature and parliament etc are the sources of
doctrinal legal research.

Non-Doctrinal Research:It is also known as empirical research or socio-legal

research and relies on experience and observation. It is a trans-boundary research
but its foundation is on doctrinal research only. Non-doctrinal legal research tries
to investigate through empirical data, how law and legal institutions affect human
attitudes and what impact on society they create.

MEANING OF RESEARCH:-

RESEARCH IS A CAREFUL, CRITICAL INQUIRY OR EXPLANATION IN

SEEKING FACTS OR PRINCIPLES,DILIGENT INVESTIGATION IN ORDER
TO ASCERTAIN SOMETHING.

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REDMAN & MARY:- “RESEARCH IS SYSTEMATISED EFFORTS TO GAIN

KNOWLEDGE.”

CHARACTERSTICS OF LEGAL RESEARCH

• It deals with the social & behavioural phenomena.

• It is carried on both for discovering new legal facts and verification of the
old ones.

• It tries to establish casual connection between various human activities.

• It tries to give solutions of legal problems.

DOCTRINAL RESEARCH

• It means a research that has been carried out on a legal proposition or

propositions by way of analyzing the existing statutory provisions and cases
by applying the reasoning power.

• Acc. To S.N.Jain, doctrinal research involves analysis of case law,

arranging, ordering & systematizing legal propositions and study of legal
institutions through legal reasoning or rational deduction

CHARACTERISTICS
• The study is mainly based on propositions.

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• The sources of data for a doctrinal researcher are the reports of Appellate
Courts and conventional legal theory.
• It is concerned with the particular doctrine of law says and not as what made
the authority to say so or what has been the impact of that say.
DEFECTS
• Over emphasis on appellate court decisions.
• The inefficiency of the researcher to distinguish clearly whether and when
he intends to describe past legal behaviour or to predict future legal
behaviour to prescribe future legal behaviour. Lack of basic conception of
legal research is the reason of this defect.

EMPERICAL RESEARCH
• EMPIRIC MEANS ‘RELYING SOLELY ON OBSERVATION AND
EXPERIMENT, NOT THEORY.’
• The Empirical Research is carried out by collecting and gathering data or
information by a first hand study into the universe.
• Also called Fact Research.

CHARACTERISTICS
• Tries to find out the impact of non-legal events upon the legal decision
process.

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• It seeks to identify &appraise the degree of variables which influence the

outcome &legal decision-making
• It tries to find out the effect of each decision on people and society as such.

LIMITATIONS
• Lack of financial support
• Other disciplines had shed away from the study of legal order
• Contributions of legal professors are very less due to their pre-occupation
with their profession.
• Legal researchers lack a tradition that enable them to strengthen the
empirical research.
• Lack of training in the use of techniques.
• Unfavourable & arrangement attitude towards it.
• Use of qualitative measurement techniques are very difficult to understand
by legal researchers.

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