Legal Research & Methods - Unit III

PART I

Law Library: How to find law, using law library,

• Law reports
• Digest
• Law Journals
• Commission reports
• Constituent Assembly Debate
• Gazettes
• Report of Commissions
• Law Lexicon
• Legal encyclopaedia
• Law Dictionaries
• Legal maxims
• Dissertation and research works
• Internet use
• Using online sources of law.

Law Library: How to find law, using law library,

• Research - is a discovery of truth

• Research is an act of searching into a matter closely and carefully
• Researcher must be trained or well equipped with tools of scientific investigation –
w/r original source of knowledge
• Research is a quest for knowledge
• Legal Research & Methods - Unit III
Legal research is either Doctrinal or Non-doctrinal
• Doctrinal research – is ‘expositor exploration’ – analytical/explanation
• It is research involving ‘study of law in books’
• Its armory is ‘law library’ – containing primary and secondary sources
• Primary sources include – legislative (statute, reports, rules, regulations, bye-laws,
court decisions in law reports, digest, manuals etc)
• Non-Doctrinal research – known as ‘law in action’
• It involves application of ‘social science research techniques’
• i.e contours are socio-legal, empirical, behavioural, quantitative, qualitative
• It involves application of law, society and sociology
Law Library: How to find law, using law library,
• Law Library is a repository of legal knowledge
• Law itself is a sub-ocean
• Overnight one cannot become a legal scholar – it requires continous intensive study of
law – that revolves around the law library
• It helps – lawmen – such as

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 – Law students, law researchers, legal scholars, law professors, lawyers, judges,
jurists etc
• Library means – a building or room containing collection of books, periodicals and
other materials necessary for acquiring knowledge
• A law library is different from others – in its nature - reference library
• A law library consists of collection of books, case reporters, journals and other
materials relating to law
• Not confined to law – study of law – requires inter-disciplinary approach
• BCI – programmes – B.A., B.B.A, B. Com. B.Sc., LL. B etc
• Scholarship is beyond passing examination
• Lawyer or legal luminary must learn to use legal materials – first hand materials –
original sources
• Mere textbook or lectures are not enough
• Should know
– Catalogues, reference books, layout of library etc
– Eg. Mt. Everest – mountaineer – must know all about it, precautions etc
Layout of the Law Library
• Layout means – to arrange things or to spread something out so that one can see them
easily
• Access to visitors to see legal materials
• Traditional law library – entrance has catalogues or indexes – based on authors or
subject based indexes or card indexes
• Two types of catalogues or indexes – author-based and general subject-based indexes
• Modern computersied libraries – computer systems
• Books are generally kept in open racks on the basis of subject titles
• Administrative law, Property law, family law, Constitutional law, jurisprudence etc
• Legal Research & Methods - Unit III
• A good library consists of both lending and reference section
• A computerised system of library is convenient and advantageous – every relevant
information is fed to the computer – library visitors can have access to the system
• But for the purpose of inspection by BCI and UGC, it is compulsory to maintain a
physical accession register in which all the details of the books like the names of
books and their authors with respective accession number are entered
• Some law schools maintain both physical and computerised system – accession
details
• The borrowers should deposit their borrowing card – for issue of books, with book
details, period of borrowing etc
• Catalogues or indexes – each contains a number or figures or letters or combination
of both
• Known as Class Mark or otherwise based on Decimal System (decimal points – AF1)
• Law reports, statutes and periodicals are generally kept in separate sections

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Legal Materials include

a) Law reports consisting of judicial decisions

b) Statutes, enactments or legislations – (refer unit I and unit II)
c) Statutory instruments – (refer unit I & II)
d) Ordinances – (refer Unit I)
e) Parliamentary and legislative assembly debates
f) Gazette Notification
g) Commission Reports
h) Legal Periodicals
i) Customary law (refer Unit I)
j) Fiction
k) Equity (refer Unit I)

LEGAL MATERIALS

LAW REPORTS

- The judicial decisions are reported in the law reports

- But all decisions are not reported – eg. the decisions of lower courts and District and
Sessions courts are not reported
- Law reports consists of decisions of High Courts & Supreme Courts - such as All
India Reporter (AIR), Supreme Court Cases (SCC),
- Also online legal databases – such as SCC online, Manupatra etc
- Also subject wise law reports – like Banking Cases, Matrimonial cases, Criminal Law
Reports, Labour and Industrial Cases, Company Law Cases, Consumer Protection
Judgements, Administrative Tribunals Judgements, Intellectual Property Law Cases,
RTI cases, ADR cases etc
- One needs to see the beginning of the case –in order to study a case
- Majority judgment + dissenting opinion
- Collateral law reports can be found in library – eg. AIR & SCC etc
- English case reports – like
a) The Queen’s Bench Division cases (QB)
b) The Chancery Division cases (Chancery)
c) The Family Division (Family Division)
d) Appeal cases (Court of Appeal and House of Lords)
e) Judicial Committee (Privy Council)
f) All important English decisions are reported in All England Reporter (All E.R.)

Judgement & its importance

- Judicial decision are found in the judgements of the courts

- Judgements are also important legal materials
- Judgment means a decision of a court given in the course of adjudication of a dispute
– it is the end result of the litigation

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 - A case when disposed of by a court consists of two decisions viz. general (legal
principles – ration decidendi – binding in similar cases) and special (binding only the
parties)
- A judgement contains statement of facts – court takes the material facts for decision
- Judgement contains issues raised by the parties – contentions of the parties – citing
precedents strengthens the contentions – eventually the judge decides the case
considering the material facts – legal principle and passes order – which is binding on
the parties

STATUTES, ENACTMENTS OR LEGISLATIONS – (refer unit I and unit II)

- (Legislation as Source of law, Legislation making power u/Constitution (Schedule VII

etc) - Major Types – Supreme, Subordinate and Delegated Legislation, other types of
legislation, classification of legislation based on objectives, parts of statute etc)

STATUTORY INSTRUMENTS

- They are the detailed orders, rules or regulations made under an Act of Parliament or
Legislature (that are delegated authorities)
- Statute provide a broad framework of the provisions
- Eg. Motor Vehicles Act, 1988 – empowers central government to make Rules – the
Rules so declared constitute delegated legislation – in essence it is nothing but a
statutory instrument

ORDINANCES

- Refer unit I

PARLIAMENTARY AND LEGISLATIVE ASSEMBLY DEBATES

- When a Bill is introduced either in the parliament or legislative assembly there will be
debate on the subject of the bill
- The Bill become a Statute or legislation when it is passed in both houses of the
Parliament or State legislative assembly
- These debates are important – they are the keys to open the minds of the legislators –
help to find out the legislative intention behind the law and the spirit of law
- Judges can refer to these debates to find out the object behind such legislation – while
interpreting the legislation in its letter and its true spirit
- Statute may be clear, yet, if a judge looks into the debate, it strengthens the
interpretation and decision of a judge. The other argument is that, when a statute is
clear it is not advisable to look in to the debate.

GAZETTE NOTIFICATIONS

- Gazette generally means the official gazette published under the authority of the
government

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 - It is a publication of official character containing government notifications relating to
various official matters
- Eg. Government of India Gazette and the Gazettes of various State Governments
- Anything notified in the gazette ensures the authenticity of the matter notified therein
- A/t the General Clauses Act, 1897 – Notification means Notification in the official
gazette
- A law is passed for the people – people should know the law concerning them –
Ignorance of law is no excuse (need for publication/access to law)
- An Act comes in to force from such date notified in the Gazette – b/o S
- Ex post facto law means where an act precedes law
- Eg. Notification by RTO u/Motor Vehicles Act or land acquisition officer u/Land
Acquisition Act.

COMMISSION REPORTS

- They are legal materials

- Various commissions are constituted to examine the prevailing law with respect to
certain subject matter
- Such commissions critically examine the existing laws – may bring about changes in
law
- Such reports and its recommendations – may be considered by courts
- Lentin Commission, Santhanam Committee, Raghavan Committee, NN Vohra
Committee etc

LAW COMMISSION OF INDIA

- Law Commission of India is a non-statutory body and is constituted by a notification

of the Government of India, Ministry of Law & Justice, Department of Legal Affairs
with a definite terms of reference to carry out research in the field of law
- The Commission makes recommendations to the Government (in the form of Reports)
as per its terms of reference.
- The Law Commission has taken up various subjects on references made by
Department of Legal Affairs, Supreme Court and High Courts and submitted 277
reports.
- The Law Commission of India provides excellent thought provoking and vital review
of the laws in India.
- 184th Law Commission Report on Legal Education, 29th Law Commission Report on
Prevention of Corruption (Santhanam Committee) etc.

LEGAL PERIODICALS (LAW JOURNALS)

- They are LAW JOURNALS

- Contains discussion on various legal issues

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 - Written by legal luminaries, academicians, students etc
- To examine various branches of law
- General periodicals (various branches of law) and special periodicals (specific branch
of law)
- SCOPUS index – greater weightage – high scholarly articles (Elsevier)
- Journals are published – quarterly, half yearly, annual etc
- Renowned law journals include
o Journal of Indian Law Institute (JILI)
o Indian Bar Review
o NUJS Law Review (NUJS LR)
o National Law School of India Law Review (NLSIR)
o Law Reports like AIR, SCC etc also have a Journal Section
- Foreign Law Journals
o Quarterly Law Review (LQR)
o Modern Law Review (MLR)
o Cambridge Law Review
o The Oxford Journal of Legal Studies
o The Journal of Legal History
o ++ law weekly, law notes,
o Specialist publications (Public Law Review, Industrial Law Journal etc)

CUSTOMARY LAW (refer unit I & II)

LEGAL FICTION

- Fiction is also a source of law (something imaginary)

- Fiction is inevitable to bring changes in law
- Eg. an adopted child by a fiction of law is considered as the natural child of the
adopting parents
- A company incorporated under the law is a juristic person

EQUITY

- Lawyers and students should have knowledge of equity

- Equity means what is fair and impartial; what is reasonable is equitable; a righteous
act is an equitable act; good conscience etc
- Equity, a particular branch of law, hence is law
- In England – two set of courts – Common law courts & Chancery courts
- Common law courts applied laws very strictly – no legal remedies for any problems –
hence approached the king to seek justice (fountain of justice)
- King referred the matters to Chancery Division (His Secretariat) – Chancellors
provided some remedies on the basis of some equitable principles
- Later, Chancery Division known as Chancery Courts

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 - Conflicts between common law courts and chancery courts – the Judicature Act, 1873
abolished both the courts for administration of justice – but follows blend of law and
equity
- Eg. equitable principles
o No one shall enrich himself at the cost of others
o Equity aids the vigilant, not the indolent
o No one shall benefit from his own wrongs
o Equality is equity
o Equity follows law (no remedy in contrary to law)

DIGESTS

- Courts pronounce judgments on thousands and thousands of cases every year

- New rulings are made in a few decisions, while, old rulings are repeated in numerous
decision
- The multiplicity of decisions render the researcher’s task of getting decision on his
area of research, more difficult
- Citators and Digests often help a researcher to locate topic-wise materials – particular
area or subject of law
- Generally digests cover the case decisions reported in a certain period – may be five
years, fifteen years, or fifty years
- These Digests will have year wise and topic wise index
- With the help of Digests – a researcher can collect the citations of all the relevant
cases to be referred for his research
- Digests are compilations of case summaries of judgements, also called digest notes
which are arranged by topics and statutes alphabetically
- Digests is not an authority but only a guide to it.
- Its purpose is to serve as a topical index of the decisions or ‘a handle to be used in
picking up the law’.
- Examples: Surendra Malik – Supreme Court Yearly Digest, Surendra Malk –
Complete Digest of Supreme Court Cases; Sudeep Malik – Supreme Court on
Arbitration Law etc
- Other Digests: Civil Law Digest, Yearly Criminal Law Digest, Company Law Digest,
Hindu Law Digest, Labour Law Digest, Annual Case Law Digest

CONTITUTENT ASSEMBY DEBATES

- The Constituent Assembly Debates (CADs) are a record of the debates and
proceedings in the Constituent Assembly of India which sat for 165 days from
December 9, 1946 to January 24, 1950. These debates which are organised in 12
volumes are an essential guide to the process of drafting and creating the Constitution
of India, 1950.
- Constitution is the supreme law of the land – it is the grund norm – a national
document – which reflects the custom, culture, ethos, social, economic and politicial
philosophy of the people of India

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 - The Constituent Assembly members representing different spheres after intensive
debate and deliberations which went on almost three years - every provision of the
Constitution was deeply discussed
- The true spirit of the Constitution can be understood with a deep knowledge of the
Constituent Assembly Debates – interpreters of the Constitution – refer to the CADs
to know the letter and true spirit of the Constitution
- It was only after Keshavananda Bhararthi case – interpreters realised the importance
of the CADs
- Importance of CADs
o A huge storehouse of materials – reveal nation’s lofty ideals, common
aspirations and values
o Mirrors which reflect the mindset of the founders
o It shaped the common political identity as citizens of India
o Help to reduce the conflict between judiciary and legislature
o Its knowledge can help in reducing the Constitutional amendments
o Helps to set at rest the tension between centre and states
o To ascertain the basic features of the Constitution
o Defines the dimensions of Freedom of Speech and Expression even at modern
times (media/online platforms)
- The CADs are recommended to be included in the legal curriculum – it is high time to
introduce a subject on Constituent Assembly Debates in all the law schools
- Functions of Constituent Assembly – most important – framing of the Constitution,
others include national flag, national anthem etc
- 8 Major committees of CA:
o Constitution making Union Powers Committee
o Union Constitution Committee
o Provincial Constitution Committee
o Drafting Committee (the most important committee)
o Advisory Committee on Fundamental Rights & Minorities
o Rules of Procedure Committee
o States Committee
o Jawaharlal Nehru Steering Committee
- Constituent Assembly Debates – run into 12 Volumes - Thing speaks to itself – every
Article of the Constitution was intensely debated and deliberated upon
- Various provisions of the Constitution was borrowed from the Constitutions of
foreign countries
o Britain – Parliamentary Government, Rule of law etc
o Ireland – Directive Principles of State Policy etc
o USA – Fundamental Rights, Judicial Review, Independent Judiciary etc
o And many others from different countries
- The making of the Constitution was a massive project - one should know the core of
the Constituent Assembly Debates – Every law student is expected to know inter-alia
two things associated with the making of the Constitution viz.

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 o a) Dr. Ambedkar’s Famous ‘Grammar of Anarchy Speech’ (the concluding
remarks made by Dr. Ambedkar and
o b) the Constitution Day or Law Day (the Day on which the Draft Constitution
was adopted.
- Activity – Write about the Grammar of Anarchy Speech

LEGAL ENCYCLOPAEDIA

- Unlike text books which deal with one subject or one branch of subject of law, an
encyclopaedia treats all subjects.
- It is a comprehensive treatise on the entire field of law
- Legal encyclopaedias are not primary authority or primary source of law, but are only
guides and they are at the most persuasive.
- Eg. Halsbury’s Laws (is an authoritative encyclopaedia of England and Wales), the
American and English Encyclopaedia of Law, Michigan Law and Practice
Encyclopaedia, the Law Lexicon etc

LAW MAGAZINE

- A law magazine is a periodical which contains articles on contemporary topics along

with information on statutes, rules or regulations that may have been enacted,
judgments may have been delivered, or appointments or transfers of judges may have
been made.
- Eg. Practical Lawyer, Lawyer’s Update, Down to Earth, Law Teller, Legal Updates,
India Legal, Law Scope etc

LAW DICTIONARY

- The law dictionary defines and illustrates the meaning of words, terms, expressions,
and phrases which are legal words and have a legal stand.
- These words are listed in alphabetical order and the authorities for their definitions are
cited or quoted
- A law dictionary is not a legal authority. It is not intended to state the law, but to
define common meanings of words and terms of legal importance. However, the law
dictionary is indispensable because it gives workable definitions which are necessary
to the understanding of any legal work.
- Eg. Black’s Law Dictionary (Indian Reprint), Legal Glossary (Ministry of
Legislation), Justice and Companies Affairs, Department of Legislation, Dictionary of
Legal Quotations, Wharton’s Law Dictionary, The Law Lexicon, Merriam Webster’s
Dictionary of Law etc

TEXT BOOK

- Text books have long been accorded an important place in the literature of law.
- But in cases which are the authority, not the author’s analysis, books are important but
least important.

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TREATISE

- Treatises are mentioned in opinions and briefs - i.e the Judge or attorney citing them
adopts their reasoning or statements, with accompanying citations to authority, as
their own.
- Eg. Treatise on Hindu Law and Usage, Treatise on Anti-Corruption Laws, Two
Treatises of Government (John Locke) etc

PRESS REPORTS

- The important cases decided by the Supreme Court or High Courts are published and
also commented upon in Standard English and some regional daily newspapers as
soon as the judgment is delivered by the court concerned.
- These cases are not exhaustively reported. However, editorial comments or letters to
the editor or articles or write ups help to generate public opinion, and as such they
are persuasive in nature

THESIS & DISSERATION

- Thesis means a theory that is put forward in a specific area that need to be proved
- Students enrolled in degree, post graduation degree programme etc need to submitted
as a thesis or dissertation
- Thesis/dissertation – both are interchangeably used – appear to have no difference in
its substance and purpose – difference only in the nomenclature
- Dictionary meaning – a dissertation is a long essay submitted to a University – it is
submitted as part of partial requirement for the award of a post-graduate degree
- It is not mere a long essay – it also involves original research like a thesis (having
Research problem, Hypothesis, Research Methodology
- Whatever discussed about thesis is applicable to dissertation also

++++++
• Internet use
• Using online sources of law.

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