Module1:Law

Intro- The term “Law’ denotes different kinds of rules and Principles. Law is an instrument
which regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and
Righteous from the view point of the society. Law means Statutes, Acts, Rules, Regulations,
Orders, and Ordinances from point of view of legislature. Law means Rules of court,
Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges.
Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders,
Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders
of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.
Meaning: In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse “lagu”
law collective Plural of “Lag” is layer, measure, stroke ‘Literally’ something laid down of
fixed. The term law has different meanings in different Places/societies at different times (as
it is subject to amendments). In Hindu religion law implies “Dharma” in Muhammadean
religion (Islam) it is “Hokum. Law differs from religion to religion in the sense personal laws
viz. Hindu law, Muslim law etc. differ from one another. For instance, A Muslim can have
four wives living at a time, but, a Hindu can have only one wife living at a time (Monogamy).
If a Hindu male marries again during the life time of first wife he is declared guilty of the
offence of bigamy and is Punishable under sec. 494. The law is subject to change with the
change in society and also change in the Govt./legislative through the amendments/Acts.
Definitions of law:- It is very difficult to define the term law. Many Jurists attempted to
define the term law. For the Purpose of clarity, some of the definitions given by Jurists in
different Periods are categorized as follows.
1-Natural School: – In the natural school of thought, a court of justice decides all the laws.
There are two main parts of this definition. One, to actually understand a certain law, an
individual must be aware of its purpose. Secondly, to comprehend the true nature of law, one
must consult the courts and not the legislature.
2-Positivistic Definition of Law: – John Austin’s law definition states “Law is the aggregate
set of rules set by a man as politically superior, or sovereign to men, as political subjects.”
Thus, this definition defines law as a set of rules to be followed by everyone, regardless of
their stature (status).
Hans Kelsen created the ‘pure theory of law’.Kelsen states that law is a ‘normative science’.
In Kelson’s law definition, the law does not seek to describe what must occur, but rather only
defines certain rules to abide by.
3-Historical Law Definition: – Friedrich Karl von Savigny gave the historical law definition.
His law definition states the following theories: – Law is a matter of unconscious and organic
growth. The nature of law is not universal. Just like language, it varies with people and age.
Custom not only precedes legislation but it is superior to it. Law should always conform to
the popular consciousness because of customs.
Law has its source in the common consciousness (Volkgeist) of the people.
The legislation is the last stage of lawmaking, and, therefore, the lawyer or the jurist is more
important than the legislator.
4-Sociological Definition of Law: – Leon Duguit states that law as “essentially and
exclusively as a social fact.” Rudolph Von Ihering’s law definition: – “The form of the
guarantee of conditions of life of society, assured by State’s power of constraint.” This
definition has three important parts. One, the law is a means of social control. Two, the law is
to serve the purposes of the society. Three, law due to its nature, is coercive. Roscoe Pound
studied the term law and thus came up with his own law definition. He considered the law to
be predominantly a tool of social engineering. Where conflicting pulls of political
philosophy, economic interests, and ethical values constantly struggled for recognition.
Against a background of history, tradition and legal technique. Social wants are satisfied by
law acting which is acting as a social institution.
5-Realist Definition of Law: – The realist law definition describes the law in terms of judicial
processes. Oliver Wendell Holmes stated: – “Law is a statement of the circumstances in
which public force will be brought to bear upon through courts.”
According to Benjamin Nathan Cardozo who stated “A principle or rule of conduct so
established as to justify a prediction with reasonable certainty that it will be enforced by the
courts if its authority is challenged, is a principle or rule of law.”
Topic: Kinds of law: -1. Introduction- Law is used in different senses. The use of the term
“law” is made in various senses. It denotes different kinds of rules and Principles. Blackstone
says “law in its most general and comprehensive sense signifies a rule of action and is applied
indiscriminately to all kinds of action whether, animate, rational, irrational. Thus we say the
law of motion of gravitation of optics or Mechanics, as well as the law of nature and nations”
it is helpful in understanding the different senses in which “law” is used in various fields of
knowledge.
Kinds of law by Sir Jhon Salmond: Sir John Salmond refers to eight kinds of law
1. Imperative law 2. Physical or scientific law 3. Natural or moral law 4. Conventional law
5. Customary law 6. Practical or technical law 7. International law, and 8. Civil law
1. Imperative law: Imperative law means a rule of action imposed upon by some authority
which enforces obedience to it. In other words it is a command enforced by some
superior power either physically or in any other form of compulsion.
Kinds of Imperative law:-: There are two kinds of imperative law, Divine or human
1. Divine laws 2. Human laws
1. Divine laws are consists of the commands imposed by God upon men either by threats of
Punishment or by hope of his blessings.
2. Human laws are the laws by analogy
Sir Jhon Salmond classifies Human Laws into four sub classes
1. Imperative law imposed and enforced by State is called “Civil law”
2. Imperative law imposed and enforced by members of society is “Moral law”
3. Those imposed and enforced by different institutions or autonomous bodies
like Universities, airline companies etc they are called “Autonomic law”
4. Those imposed upon States by the society of States are called “ International law”
2.Physical or scientific law: Physical laws are the expressions of the 1. Uniformities of
nature and General Principles Expressing the 2. Regularity, and 3. Harmony observable in the
activities and operations of the universe.
They are not the creation of men and cannot be changed by them. Human laws change from
time to time and from country to country but physical laws are invariable forever. The
uniform actions of human beings, such as law of psychology, also fall into this class they
express not what man ought to do, but what they do.
3. Practical or Technical law:- It consists of Principles and rules for the attainment of
certain ends e.g. laws of health, laws of architecture. These rules guide us as to what we
ought to do in order to attain certain ends.
4. Natural or Moral law:- It has various other names such as, “the Moral law” “Divine law”
“God Law” ‘universal or eternal law and “law of reason” etc. “by rawls is meant the
principles of natural right and wrong (the Principles of natural Justice)”. Natural laws have
been called
Divine law:- commands of God imposed upon men.
Law of Reason i.e. being established by that reason by which the world is Governed.
Unwritten law:- (as being written not an brazen tables or a pillar of stone but by the finger of
nature in the hearts of people. universal or common law (being of universal validity)
Eternal law (being uncreated and invariable)
Moral law (being the expression of the Principles of morality)
5. Conventional law:- It is the body of rules agreed upon and followed by the concerned
parties to regulate their mutual conduct. It is form of special law and law for the parties
which can be made valid or enforced through an agreement. A Good ex. of the conventional
law is the International law, laws of cricket or any other game, rules of club. It has been
father divided into two groups which are:-
1. Rules enforced by the parties themselves but not recognized by the State e.g. the rules of
hockey
2. Rules which are recognized and enforced by the State, e.g. contract etc.
6. Customary law:- are those rules of custom that are habitually followed by the majority of
the persons subject to them in the belief of binding nature. According to Salmond, customary
law means “any rules of action which is actually observed by men (any rule which is the
expression of some actual uniformity of voluntary action) “when a custom is firmly
established it is enforced by the authority of the State. Custom is not law by itself but an
important source of law only those customs acquired the force of law, which are recognized
by the courts.
7. International law:- According to “Hughes” international law is the body of Principles and
rules which civilized States consider as binding upon them in their mutual relations. “ it can
be as the name for the body of customary and conventional rules, which are considered
legally binding by civilized States in their intercourse with each other”. According to
Salmond it is considered of these rules which the sovereign States have agreed to observe in
their dealings with one another.
International agreements are of two types: -They are either expressed or implied.
-Express agreements are contained in treaties and conventions, while implied agreements are
to be found in the custom or practice of the States. International law is of two kinds: I: Public
International law: It prevails universally all over the world.
II: Private International Law: It is enforced only b/w some of States.
8. Civil Law: It is the law of the States regarding the land “Civil Law” according to the
Salmond , is “the law of State of or the law of the land, the law of lawyers and the law of the
courts”. Civil law is the positive law, or law of the land which means the law as it exists. It is
backed by the force and might of the State for purposes of enforcement. Civil law differs
from special law as the latter applies only in special circumstances the other term is used for
the civil law is Municipal Law and national law.
CLASSIFICATION OF LAW 1. Introduction: Etymological meaning of classification is
“the process of putting something into category” or the basic cognative process of arranging
into classes or categories. For a proper and logical understanding of law its classification
becomes necessary. As it elucidates the way of systematic logical structure of the legal order.
It explicates the inter relation of rules and their effect to each other. It analysis the law that
intern is helpful in codification of laws it is an arrangement of rules in a concise and
systematic way.
2.Original and Meaning of the Classification of Law: Notion of classification is very old.
Classification was first made by Roman Jurists. The ancient Hindu Jurists also laid down
eighteen titles or heads of “Vyavahara” civil law. The distinguished civil and criminal law
and classified crime law under various heads. There are two limitations in classification of
law:
first; any classification will have only a relative value and no universal principle or rules can
be laid down for it. Roman Jurist analysed law in old times but that classification is Vague to
present world.
Second, any classification made keeping in view the law of a Particular community or nation
is not applicable to the law of any other Community or nation. For Example; if one commits a
breach of promise to marry, in English law, it falls under contract, but in French law it falls
under delict. classifications given by various Jurists, only a General Classification shall be
given which has been adopted by most of Jurists of the modern times.
3. Classification:
1- International law:- The Present form of international law is of recent origin some earlier
Jurist were of the view that the international law is not law as it lacked many elements which
law should have. Austin and his supporters were of this view. Some says international law is
law and it is superior to the municipal law Kelson supports this view.
What is International Law? The legal Process that concerns legal relations among nations is
called international law. Belief and experience some form international law dates from at
least the days of the Roman Empire. The united nation is are of the Primary mechanism that
articulate and create international law. The major sources of international law are multilateral
Treaties, international custom and such General Principles as are recognized by civilized
nations.
According to some Jurists international law may be divided into two classes. (1) Public
international law, and (2) Private international law
-Public international law is that body of rules which govern the conduct and relations of
States with other, really speaking; the term international law is used for this class of law.
-Private international law means those rules and Principles according to which the cases
having foreign element are decided for example, if a contract is made between an Indian and
Pakistani and it is to be performed the rule and Principles on which the rights and liabilities
of the Parties would be determined would be called Pvt. international law. This class of law is
called “Conflict of laws” also. After knowing the field of application of this class of law, it is
clear that the adjective “international” is wrongly given to it because it applies to individuals
and not to States and these rules and Principles (called Private international law) vary from
State to State and thus lacked uniformity. This class of law is enforced by municipal courts
which administer municipal law and not international law, so, such a law does not process the
characteristics of international law. In modern times this class of law has gained much
importance and every States has made rules for its administration. Therefore, it must be
properly classified. It is submitted that it should be given the name “Conflict of Laws” and
not private international law and should be treated as a branch of municipal Private law and
should be classified as such.
4. The Municipal law, Law of land, Civil law, or law applied within a State is divided
into two classes:-
(A) PUBLIC LAW (B) PRIVATE LAW
A) PUBLIC LAW:- The State activities are largely regulated by Public law. It determines and
regulates the organization and functioning of the State and determines the relation of the State
with the subject. public law may be divided into three classes:- (A) Constitutional law
(B) Administrative law and (C) Criminal law
(A) Constitutional law: By constitutional law is meant that law which determines the nature
of the State and the Structure of the Government. It is above and superior to the Ordinary law
of the land. Constitutional law is the basic law or fundamental law of the State. The
constitutional law may be written as in India or unwritten as in England. In modern times
there is tendency to adopt written constitution.
(B) Administrative Law:- Administrative law deals with the structures powers and the
functions of organs of the administration, the limits of their Powers, the methods and
Procedures followed by them in exercising their powers and functions; the methods by which
there power are controlled including the legal remedies available to a person against them
when his rights are infringed by their operation.
(C) Criminal law:- Criminal law defines offences and prescribes punishment for them. Its aim
is the prevention of and punishment for offences. Criminal law is necessary for the
maintenance of order and peace within the State. In civilized societies crime is considered to
be wrong not only against the individual (who has been wronged) but a wrong against the
society. Therefore, the State initiates the proceedings against the offender, and thus it is
always a party in criminal cases. This is why the criminal law is considered as a branch of
public law.
(D) Private Law: - This branch of law regulates and governs the relations of citizens with
each other. The parties in such cases are private individuals and the State through its judicial
organ adjudicates the matters in dispute between them. In these cases the State takes the
position of only an arbiter. But it does not mean that the State regulates all the conducts and
relations of the citizens but regulates only such of them as are of public importance and these
relations (which State regulates) constitute the civil rights of the citizens. The major part of
municipal law consists of this branch of law but in Totalitarian States the public law regulates
the major part of the social life. In the Classification of private law there is great difficulty.
Different Jurists have given different classification, a very General classification is as
follows:-
1. The law of Persons 2. The law of Property 3. The law of obligations 4. The conflict of
laws.
The law of obligations is divided into three classes.
(i) Contract (ii)Quasi contract, and (iii) Tort
The classification is only substantive law. The procedural law and Evidence are also the
branches of the Private law.
Conclusion- Above classification defective: The above classification of law has many
defects. Many of the classes do not exist in many legal system at all some branches of law
which has developed in recent years cannot be put under any one class exclusively.
Therefore, the above classification is neither universal nor exhaustive. Many other Jurists
have made classifications based on different principles. But these too have been made
keeping in view the law of a particular nation; therefore, they are not satisfactory and have no
wide application. New developments; A new classification necessary: - In modern times, new
branches of law are fastly growing and developing. These laws are of such composite nature
that they partake the nature and characteristics of many of branches of the law and do not fall
into any one class exclusively for example we may take the commercial law. It cuts across
the two branches of law i.e the law of obligation and the law of property. Similarly, industrial
law also partakes the characteristics of many branches of the law. With the change in the
concept of the State and law many branches of private law have shifted and have become part
of the public law. In totalitarian States this change has taken place to a considerable degree.
Under these circumstances it is necessary to make a comprehensive and complete
classification which might cover the recent developments of law for this purpose a very close
study of the laws of various nations and various branches of law must be made.

Module-1: 1.4: Purpose of law: Concepts of morality, justice, equality & equity, social
interests, stability & peaceful change:

Morality: Intro- Law and Morality are two systems that govern the way humans behave.
Law is a body of rules and regulations that all people are mandatorily obligated to adhere to.
Morals, on the other hand, refer to general principles or standards of behavior that define
human conduct within society but are not compulsory to be followed. 
History- In ancient days when legal regulations were still at a very nascent stage, there was
no distinction b/w law n morals. In Dharma considered as law n morality. Hindu law was
primarily derived from the vedas n smritis. However, with time, Mimansa put put forth
certain principles, distinguished b/w obligatory rules as considered as law. Even in the middle
age period, the Bible was considered as the major factor which influenced the legal
regulations.
Morality as the basis of law: the state picked up what was morally correct and gave it the
form of laws or rules and regulations. Therefore, the law finds its origin and is based on the
values that float amongst the people, creating a similarity between the two concepts, i.e. law
and morality. Law essentially involves certain basic principles such as the principle of
fairness and equality, and these principles are derived from ethics and morals.
Morality test of law:  Any law which does not abide by moral standards should be removed
and whether a law is right or wrong can be evaluated based on whether it is in consonance
with moral values. 
Morality as ends of law: the end goal of enacting laws is to maintain a society that is based on
principles of justice, fairness, and equality. It is believed by jurists that if the law is to stay
involved in the lives of people, then it cannot ignore morals. If there is a law that is against
moral standards, people may be hesitant to obey it which will create further conflicts within
the society. 
Justice: Intro- the most common terms, justice is an ideal representing something that is just
and right. It basically means being just, impartial, fair and right.
For ex- the natural law school of jurisprudence believes that justice means the
implementation of religious laws. On the other hand, modern jurisprudence says justice
means the implementation of concepts like equality and liberty. However, in both these
examples, justice just means enforcement of what the law perceives to be right.
According to Salmond, laws are the bodies of principles that tribunals recognize and apply
while administering justice. Even Roscoe Pound defines laws to mean principles that public
tribunals recognize and enforce.
Therefore, justice generally means the recognition, application and enforcement of laws by
courts. This is different from the understanding of justice in the ancient period when it was
given a religious and moralistic meaning.
Kinds of Justice: 1) Public justice and Private justice
Public justice is basically that kind of justice which the state administers through its tribunals
and courts. It explains the relationship b/w courts and citizens of a state. Courts usually
enforce laws that the states make under public justice.
On the other hand, private justice regulates the legal relationship b/w individuals. It is limited
to people enforcing concepts of justice amongst each other without approaching courts.
For ex- let’s imagine that A and B entered into a business transaction in which A paid money
to B as promised. B, instead of selling goods to A for the money, refused to fulfil his
obligation. If A and B decide to settle their dispute through means of arbitration or
negotiation, it is private justice. However, if A approaches a court and sues B, we refer to that
as public justice.
2) Civil justice and Criminal justice
In terms of the subject matters of justice, we can categorize it as civil and criminal. Civil
justice generally refers to private wrongs that affect specific people or entities.
For ex- breach of a contract b/w two parties will affect only one of them. Trespassing of
property is another example. The remedy of such civil wrongs is generally to approach civil
courts.
Criminal justice, on the other hand, affects society in general even if specific people are
victims. For ex- the murder affects specific victims only but the law treats it as a crime
against society.
Another feature of criminal justice is that it relates to laws made by a legislature. Only acts
that are defined as crimes can be the subject matter of criminal justice.
Equality: All human beings must be treated equally, according to the modern concept of
equality. This isn't to say that there aren't differences between people. Human beings differ in
terms of physical, social, economic, and other characteristics, and equality does not imply
uniformity, nor does diversity imply inequality. Despite the diversity of human beings, there
is one thing that they all have in common: God created them all equal and
endowed them with the faculty of reason. All men have similar physical,
emotional, and intellectual needs. As a result, they are entitled to equal rights and sufficient
opportunities to fully develop their individual personalities.
Types-1- Legal Equality- The concept of legal equality was not prevalent in ancient
societies. Legal equality essentially means that everyone, regardless of social or
economic status, must have equal access to the law and that no one can be above the law. As
a result, it is critical that all forms of socioeconomic disparities be eliminated from society in
order for legal equality to be realised in the true sense of the term.
2-Politica equality- means that everyone, regardless of race,caste, class, colour, sex,
language, or religion, should be able to vote, run office, and receive equal access to govt.
services. In the society, there will be no privileged class. Political equality in the modern
world is primarily concerned with universal adult franchise (based on the "one man, one
vote" system) and representative govt., in which all adult citizens of a country have the right
to elect their representatives to form the govt . It's worth noting that, according to the Indian
Constitution, all adult citizens (over the age of 18) have the right to vote in Lok Sabha and
State Assembly elections.
3-Social Equality: Social equality means that every citizen, regardless of social & economic
status, caste, colour, race, sex, language, religion, education, or other artificial considerations,
should have an equal opportunity to develop his or her personality. The struggle of women
for equal voting rights gave rise to the slogan "equality of sexes." Martin Luther King
(Jr.) led the American Civil Rights movement in the United States, which aimed
to end socio-political discrimination against the country's black population.
4-Economic Equality: means that wealth should be distributed equally in society so that
everyone has access to the basic necessities of life, such as food, clothing, shelter,
employment, and health care. Economic equality, on the other hand, does not imply absolute
equality. Certain sections of society will always be economically richer, while others will be
poorer; what matters is that the gap b/w the rich and the poor in society does not grow to the
point where the poorer sections are deprived of even the most basic necessities of life.
PURPOSE OF LAW:
1. Maintaining Order: The law is said to be an offshoot for the establishment of the standards.
The resembling nature is necessary for a civilized kind of society. Thus, a similar thing is
reflected upon the law. Further, the law when being enforced provides a diligent consistency
with the guidelines of the society. In addition to that, wildlife management laws were passed
in lieu of the game to be conserved and so that it gets protected for future generations in the
years to come.
2. Establishing Standards: The law is a manner in which it shows a way to the minimum
accepted behaviour in society. There are few activities which are a crime for the society to
determine whether it will tolerate behaviours that may damage or injure the person or their
respective properties. For instance, it is a crime to injure an individual without the
justification factor being met. Therefore, committing the same can lead to the constitution of
the crime i.e. assault.
3. Resolving Disputes: Disputes are not supposed to be ignored in a society at large that
consists of people with several kinds of wants, needs, values, etc. Additionally, the law gives
a formal means to resolve the disputes which are under the court system.
4. Protecting Liberties and Rights: The constitutions and the statutes of India give various
rights and liberties in their states. In addition to that, one of the functions of law is to protect
numerous rights and liberties from unreasonable kind of violations or intrusions by
organizations, persons or government. Henceforth, if an individual believes that the freedom
of speech has been forbidden by the government then the respective individual can pursue the
remedy through the platform of bringing the case in the courts.

Module-2 :: SOURCES OF LAW

What do we mean by “sources”? The term sources have been interpreted very differently
by various jurists. Sometimes it is used to denote the causes of law or the matter of which law
is composed.
Let us refer to a few definitions:
 Vinogradoff: “process by which the rule of law maybe evolved”
 Oppenheim: “name for a historical fact out of which the rules of conduct come into
existence and acquire legal force”
 Fuller: “sources in the literature of jurisprudence relates to the question:  Where does
the judge obtain the rules by which to decide the cases?”
When we are talking about sources, we have to understand that the sources are different for
laws on the municipal plane and laws on the international plane.
International law is essentially horizontal in structure. There is no vertically superior
authority. It mostly born out of widely recognised state practices and agreement amongst the
States to be
bound by something. Because of this, the sources differ.

HENRY MAINE ON PROGRESSION OF SOCIETIES

Law develops through four stages:
 Laws made by command of a ruler believed to be under divine inspiration.
 These commands crystallise into customary laws
 Powers of the original law makers weaken and the knowledge and administration of
customs go in the hands of a minority (generally religious)
 These customs are promulgated in form of codes: Twelve Tables in Rome. 
Societies which stop there progress over here are called static societies. Progressive societies
do indeed progress beyond this through three important instruments:
-Legal fiction -Equity -Legislation
JOHN SALMOND’S CLASSIFICATION OF SOURCES OF LAW
Sources: - Formal - Material > legal sources & Historical sources
SOURCES OF INDIAN LAWS
1) SOURCES -:
a) Legislations
 i) Primary
ii) Secondary
b) Customs
i) Legal
(1) Local
(2) General
ii) Conventional
c) Precedents
i) Binding
ii) Persuasive

SOURCES OF LAW AND THE CONSTITUTION

Article 13 (3) (a): “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of law;
Article 141: The law declared by the Supreme Court shall be binding on all courts within the
territory of India.
Article 25(1): Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion.
Article 29(1): Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to conserve the
same. 

LEGISLATION AS A SPOURCE OF LAW

MEANING AND DEFINATIONS
Legis”- law & “latum”- to set. So, setting/making of law is legislation
Salmond: “consists in the declaration of legal rules by a competent authority”
Holland: “in legislation both the contents of the rule are devised and legal force is given to it
by the acts of sovereign power which produce written law”
To the positivists it is the supreme source of law making.  The historical school disagrees.
They say that a legislation is only effective if it effectuates a customary practice. They
consider customs to be a superior source, and legislation to be the least creative source of
law.  

SUPREME, SUBORDINATE & precedent

LEGISLATION
Supreme Legislation: One which proceeds from the sovereign authority itself. It is the
highest form of legislation that cannot be repealed or annulled by any other authority except
the sovereign authority itself. Eg: law made by the Parliament or State Legislative
Assemblies
Subordinate Legislation: Sometimes legislative power is also vested in authorities other
than the supreme legislative body. Eg: Supreme Court’s power to frame its own rules of
procedure (Art 145 COI), Powers of Municipalities & Panchayats (Part IX & IX A COI),
Powers of Universities & other autonomous bodies to frame their own rules. 
Delegated Legislation: It is a kind of subordinate legislation. Sometimes, law making power
is vested upon the various departments of the executive to frame laws/rules. 
 No fresh clearings for cultivation or for any other purpose shall be made in such land
except in accordance with such rules as may be made by the [State Government] in
this behalf”
 “For the purpose of facilitating the proof of Hindu marriages, the State Government
may make [rules] providing that the parties to any such marriage may have the
particulars relating to their marriage entered in such manner and subject to such
conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.”

REASONS FOR PROLIFERATION OF DELEGATED LEGISLATION:

 Emergence of modern welfare states
 Difficulty in coming up with detailed legislation due to proliferation of activity
 Problem of time
 Lack of technical knowhow in the legislature
 Difficulty for Parliament to foresee all kinds of contingencies
 Provides greater flexibility and a scope for experiment
 Full knowledge of local conditions not available.

CONTROL OVER DELEGATED LEGISLATION

 Parliamentary control & supervision
 Judicial control
 Trustworthy Body
 Publicity
 Expert opinion
Judicial Control over Delegated Legislation
 Enabling act Ultra vires
 Subordinate legislation unconstitutional
 Subordinate legislation ultra vires the enabling act
CUSTOMS AS A SOURCE OF LAW
MEANING AND DEFINITIONS
Salmond: Custom is the embodiment of those principles which have commended themselves
to the national conscience as principles of justice and public utility.
Austin: custom is a rule of conduct which the governed observe spontaneously and not in
pursuance of law settled by a political superior. 

TRANSFORMATION OF CUSTOM INTO LAW

Views of the Historical School
 It is not dependent upon the will of the sovereign. “Custom is the sign or badge of
positive law and not its foundation or a ground of origin”- FK VON SAVIGNY
  Law is only valid if it objectifies the customs.
Views of the Analytical School
 A custom becomes law, only when embodied in an Act of the Legislature/ a judicial
decision
 Customs only have persuasive value
ESSENTIALS OF A VALID CUSTOM
 Antiquity
 Reasonableness
 Continuity of practice
 Peaceful observance 
 Certainty 
 Compulsory nature
 General Observance: Universal/Local customs
 Must not be opposed to public policy
 Must not be in conflict with statute law
 Customs must be consistent
LEGISLATION vs. CUSTOMS
 Points Legislation Custom

Nature of Existence De jure & jus scriptum De facto & jus non scriptum

Societies where A mark of lawmaking in A mark of primitive societies and

predominant mature and advanced societies underdeveloped legal systems.

Motive for growth Deliberate Involuntary

Flexibility Offers greater flexibility Not flexible

Certainty It is more easily ascertainable Maybe difficult to ascertain

PRECEDENTS AS SOURCES OF LAW

 “Morality of the judges, higher than the morality of the legislature”- AV Dicey
 Based on this assertion, precedents have always been held in high regard at all times
in all countries. Particularly within the common law traditions. 
 But this idea has its own set of detractors: Savigny for example argues that precedents
are merely evidence of customary law. 
 Stobbe is of the view that departure from hitherto existing practice is not only be
permitted, but required. 
 Jerome Frank is of the opinion that “certainty” of law is a “father complex”. So just
for the sake of precedents, judges should not look for certainty. It is their duty to do
some constructive work
 They are opposed by the likes of Blackstone, Thibaut and Benjamin Cardozo.
Blackstone’s argument stems from the belief that once precedent has been laid down,
it becomes the law. Detraction from it makes law uncertain.
  Cardozo bases his arguments on the workload of the court and the principle that a
question that is closed must not be allowed to be re-litigated. 

CIRCUMSTANCES THAT WEAKEN BINDING FORCE OF PRECEDENT

As we have learnt earlier, precedents are of two types: binding & persuasive.
Certain factors derogate from the binding force of a precedent:
Abrogated Decision: A decision of the court may be abrogated through two major
mechanisms- a) legislation of a law subsequent to a decision rendered by a court & b) by
reversal and overruling by a superior judicial body. Example: 24 th & 25th Amendment, Right
to Privacy. 
Affirmation or Reversal on a Different Ground: When a decision is appealed against, and
the court either affirms or reverses the judgement of the lower court on a different point of
law, it weakens the value of the precedent. 
Decisions made in ignorance of law: Such decisions are called decisions per incuriam.
When decisions are made per incuriam, then even a lower court can refuse to follow a
precedent, though it is not proper to do so.
Inconsistency with Earlier Decision of a Court of Same Rank: In such a case, the proper
thing is to refer the matter for consideration by a Higher Court or a Bench with Higher
Strength. If there are conflicting decisions by courts of same strength and rank, it looses its
value as precedent as a lower court may subsequently pick and choose which decision to
follow. 

CIRCUMSTANCES WHICH INCREASE THE VALUE OF A PRECEDENT

 Number of Judges in a Bench
 Unanimity in decision making
 Affirmation of the decision
 When an Act is passed embodying what has been laid down as precedent.
 Lapse of time

STARE DECISIS:
 To stand by the decisions and not to disturb settled rules
 Article `141 of the Constitution of India: Law declared by the Supreme Court shall be
binding on all courts in India
 Bengal Immunity vs. State of Bihar: “all courts” means the Supreme Court also.
 Minerva Mills vs. UOI: Certainty an essential element of rule of law. Hence, highest
courts should not deviate from what it has said earlier as a matter of course. 
 Mahadeolal vs. Administrator General of West Bengal: Judges of coordinate
jurisdiction should not set aside one another’s judgement
 Sheshamma vs. Venkata Rao: Division Bench is the final court of appeal in a HC
 Hierarchy of Courts
RATIO DECIDENDI AND OBITER DICTA: A judicial statement of what we commonly
refer to as a judgement in a legal case consists of two different elements which are referred to
as Ratio Decidendi or Ratio and Obiter Dicta or Obiter.
 Ratio in Latin means the reason for the decision or judgement while obiter usually
refers to additional opinions or observations that are made on the issues that are
involved in the case.
 Obiter very often reveals the rationale that the court has adopted to come to a
conclusion and it is the non-binding part of the judgement.
Ratio Decidendi
In an ordinary sense, we refer to as ratio the reason behind the decision but actually, it is
much more than that.
 The reason in this regard is not merely applying the law to the facts and coming up
with an order.
 Ratio instead refers to the steps that are involved to resolve a dispute, this resolution
must be directly related to the issue or issues that are at the core of the dispute at
hand.
 It must come from disputes of law, not disputes of fact.
 Ratio Decidendi must be argued in court and the facts of the precedent case shape the
level of generality to which the later courts decide the level of generality.
 Ironically when a precedent has multiple reasons, all reasons are binding.
 Ratio becomes a very powerful tool in the hands of a lawyer and that is why it
becomes essential for him to comprehend it well.
 To find the ratio in a judgement one looks at the abstract principles of law that have
been applied to the facts of that particular case.
Obiter Dicta
Obiter is the term used for remarks made by the judge which are not binding on the parties to
the case.
 Statements that are not crucial and refer to hypothetical facts or issues of law not
related to the case also form a part of obiter dicta in a judgement.
 Unlike ratio, obiter is not the subject of the judicial decision even if the statements
made in this part are correct according to law.
 Wambaugh’s Inversion Test provides that to determine whether a judicial
statement is ratio or obiter, you should invert the argument, that is to say, ask
whether the decision would have been different, had the statement been omitted.
If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter.

Precedent: A decision of the higher courts like the Supreme Court and the High Courts
generally sets a precedent for the Courts that are directly below them in terms of jurisdiction.
 Ratio, because it sets an underlying principle in the judgement, forms a vital part in a
judicial precedent.
 Judicial precedents form one of the most noteworthy sources of law as they are often
quoted and followed by the lawyers and judges during the course of arguing cases.
  The precedents however differ in value depending on not only the hierarchy and
strength of the bench but also depending on the reverence that a judge who
pronounces the judgement possesses in the legal fraternity.
 The doctrine of precedent finds itself embedded in the Constitution of India by virtue
of Article 141 which states that the law declared by the Supreme Court is binding on
all the subordinate courts. It does not matter as to what the facts and circumstances of
a particular case are; the lower courts are not permitted to overrule the law that has
been declared by the Supreme Court.
 Trouble emerges in that, in spite of the fact that the judge will give reasons behind his
judgment, he won’t generally say what the ratio decidendi is, and it is then up to a
later judge to “elicit” the ratio of the case. There may, in any case, be contradiction
over what the ratio is and there might be in excess of one ratio.
Conclusion
 The apex court in the case of Arun Kumar Agrawal v. State of Madhya Pradesh held
that obiter dictum is a mere observation or remark made by the Court, by way of aid,
while deciding the actual issue before it. The mere casual statement or observation
“which is not relevant, pertinent or essential to decide the issue in hand”, the Court
said, did not form part of the judgment of the court and had no authorities value.
 Thus, it can be well concluded by mentioning that obiter dictum is an opinion not
necessary to a judgment and is an observation as to the law made by a Judge in the
course of a case, but not necessary to its decision and therefore of no binding effect; it
is a ‘remark by the way’. It is the ratio decidendi which has the binding effect and the
precedent value.

Module-2: Indian Legal System: Separation of power: The separation of powers is a

model for the governance of both democratic and federative states. The model was first
developed in ancient Greece and came into widespread use by the Roman Republic as part of
the uncodified Constitution of the Roman Republic. The doctrine of separation of powers has
emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In
the 16th and 17th centuries, French philosopher John Bodin and British politician Locke
expressed their views about the theory of separation of powers. But it was Montesquieu who
for the first time formulated this doctrine systematically, scientifically and clearly in his book
‘Esprit des Lois’ (The Spirit of the Laws), published in the year 1748.

Contribution of Montesquieu in the development of the Concept of Separation of Power

Meaning of Separation of Power. Understanding that a government's role is to protect
individual rights, but acknowledging that governments have historically been the major
violators of these rights, a number of measures have been derived to reduce this likelihood.
The concept of Separation of Powers is one such measure. The premise behind the Separation
of Powers is that when a single person or group has a large amount of power, they can
become dangerous to citizens. The Separation of Power is a method of removing the amount
of power in any group's hands, making it more difficult to abuse.
It is generally accepted that there are three main categories of governmental functions-a)
legislative b) executive, and c) judicial. Likewise, there are three main organs of the
Government in a State-a) Legislature, b) Executive and c) Judiciary. According to the theory
of separation of powers, these three powers and functions of the Government must, in a free
democracy, always be kept separate and be exercised by three separate organs of the
Government. Thus, legislature cannot exercise legislative or judicial power; the Executive
cannot exercise legislative or judicial and the Judiciary cannot exercise legislative or
executive power of the Government.
Montesquieu’s Doctrine: Though the doctrine of Separation of Power 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. Locke
distinguished between what he called: i) Discontinuous legislative power; ii) Continuous
executive power; iii) 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.

SEPARATION OF POWERS BETWEEN THE THREE GOVERNMENT BODIES

Legislative Authority- The legislature enacts general norms of legislation that are primarily
concerned with how its citizens and institutions behave themselves. The Lok Sabha and the
Rajya Sabha are the two houses of India’s Union Legislature, which help to enact laws,
approve borrowing, levy taxes, and write debates, and pass bills that are then sent to the
President for approval. Only after the President signs and approves a bill does it become law.
As a result, the system of checks and balances is emphasized. Article 123 of the Indian
Constitution gives the President this authority.

Executive Powers- The executive branch of government is responsible for enforcing the laws
passed by the legislature. According to Article 53 (1) of the Indian Constitution, the President
and the Governor of India have executive powers. They have the power to veto laws, play a
key role in appointing judges, and give pardons to criminals. As a result, the system of checks
and balances over the government’s judiciary body is preserved.

Powers of the Judiciary- The principal role of the judiciary is to prevent laws from being
broken and to defend citizens’ fundamental rights. The Supreme Court of India is the highest
in the country, with complete judicial power. The judiciary’s job is to interpret the laws
enacted by the legislature but they are unable to enact new legislation. In this way, they are
reliant on the government’s legislative body. By establishing the Supreme Court of India,
Article 124 (1) of the Indian Constitution affords the court various rights. The Supreme Court
judge is appointed by the President, who is the executive, according to Article 124 (2),
creating a system of checks and balances on the judiciary.

SEPARATION OF POWER IN INDIAN CASE LAWS:  Kesavananda Bharati Vs. State

of Kerala:Art. 368 of the Constitution was challenged in this case. Art.368 gives Parliament
the authority to modify the Constitution and the procedures for doing so. In this case, it was
decided that, while Parliament is given the capacity to alter the Constitution, they do not have
an absolute right to do so, and that if an issue arises to amend the constitution’s core
elements, it would be declared unconstitutional.
2. Ram Jawaya v. the State of Punjab: The Hon’ble Supreme Court ruled in this judgment
that there is no rigorous division of powers in India. The Supreme Court ruled that the
executive branch derives its legitimacy from the legislature and is reliant on it.

**Rule of law: Meaning & Scope: Dicey in his work stated that Rule of Law is fundamental
to the English legal system and gives the following three meanings to the doctrine:
Supremacy of Law-Rule of law according to Dicey means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or wide
discretionary power. It means the exclusion of the existence of arbitrariness on part of the
government. This in essence means that no man can be arrested, punished or be lawfully
made to suffer in body or in goods except by the due process of law and for breach of a law
established in the ordinary legal manner before the ordinary courts of the land.
Equality before Law- While explaining this aspect of the doctrine, Dicey stated that there
must be equality before the law or equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts.
Dicey believed that the exemption of civil servants from the jurisdiction of the ordinary
courts of law and providing them with the special tribunals was the negation of equality. He
stated that any encroachments on the jurisdiction of the courts and any restriction on the
subject’s unimpeded access to them are bound to jeopardise his rights.
Judge-made Constitution - Dicey observed that in many countries rights such as the right to
personal liberty, freedom from arrest, freedom to hold public meetings, etc. are guaranteed by
a written Constitution; in England, it is not so.
In England, those rights are the result of judicial decisions in concrete cases that have actually
arisen between the parties.
Thus he emphasized the role of the courts of law as guarantors of liberty and suggested that
the rights would be secured more adequately if they were enforceable in the courts of law
than by mere declaration of those rights in a document.
Rule of Law and Indian Constitution: The Preamble of the Constitution itself prescribes
the ideas of Justice, Liberty and Equality. These concepts are further enunciated in Part III of
the Constitution and are made enforceable. All three branches of the government are
subordinate i.e. the Judiciary, Legislature and the Executive are not only subordinate to the
Constitution but are bound to act according to the provisions of the Constitution. The doctrine
of judicial review is embodied in the Constitution and the subjects can approach the High
Court and the Supreme Court for the enforcement of fundamental rights. If the Executive or
the government abuses the power vested in it or if the action is mala fide, the same can be
quashed by the ordinary courts of law.
The Supreme Court of India in Chief Settlement Commissioner Punjab v. Om Prakash
observed that in our constitutional system, the central and most characteristic feature is the
concept of the rule of law which means, in the present context, the authority of the law courts
to test all administrative action by the standard of legality. The Court added that the doctrine
of rule of law rejects the conception of the dual state in which government action is paced in
a privileged position of immunity from control by law.
Exceptions to Rule of Law: Some exceptions to the concept of the rule of law are discussed
below. ‘Equality of Law’ does not mean that the powers of private citizens are the same as
the powers of public officials. e.g. a police officer has the power to arrest which the private
citizen does not have.
The rule of law does not prevent certain classes of persons from being subject to special
rules, for ex., the armed forces are governed by military laws.
Ministers and other executive bodies are given wide discretionary powers by the statute.
Certain members of the society are governed by special rules in their professions like
lawyers, doctors and nurses.
Conclusion: The founding fathers of India accomplished what the rest of the world thought
impossible – establish a country that would follow the letter of the law and implement the
Rule of Law. In all matters such as the protection of the rights of the people, equal treatment
before the law, protection against excessive arbitrariness, the Constitution of India has
provided enough mechanisms to ensure that the Rule of Law is followed. Through its
decisions, the Courts have strived to reinforce these mechanisms and ensure smooth justice
delivery to all citizens. Problems such as outdated legislation and overcrowded courts are but
small hindrances and bodies such as the Law Commission of India work towards ironing out
these problems with the aim of achieving a system where there are no barriers to the smooth
operation of the Rule of Law.
Interpretation of statues: Out of the three organs of the State, viz Legislative, Executive and
Judiciary, interpreting the statutes is primarily concerned with Judiciary. Being the machinery
that puts the laws laid down by legislature into use, it becomes primary function of Judiciary
to interpret the statutes and ascertain the correct meaning of the provisions of the statutes in
their true spirit as intended by the framers.

Salmond defines the interpretation of statutes as “interpretation or construction is the process

by which the courts seek to ascertain the meaning of the legislation through the medium of
the authoritative form in which it is expressed.”
The interpretation is required for two basic reasons viz. to ascertain:
1. Legislative Language: Since the Statutes are drafted by Legal experts using
Legislative and technical Language, it can be complicated and complex for layman to
understand it and hence interpretation is required to simplify and explain the
provisions to the layman.
2. Legislative Intent: The Legislative Intent comprises of two-fold aspects as to:
1. Concept of ‘meaning’, i.e., what the word means;
2. Concept of ‘object’ and ‘purpose’ or ‘spirit’ or the ‘reason’ pervading
throughout the Statute.
The interpretation of statutes is needed:
1. To infer clear and precise meanings where multiple meanings can be inferred from the
language used.
2. To fill the gaps in law: it is impossible for the lawmakers to draft the law anticipating
all the possible scenarios that could arise in future and this impossibility leads to use
 of indeterminate language and Courts from time to time have to interpret such
indeterminate language according to the present scenarios. For example: use of word
“reasonable” in the provisions, Courts interpret and define the word reasonable now
and then according to changing times.
3. To decide the most correct use of language: words may have multiple meanings and
each party in the Court will tend to infer the meaning which is advantageous to itself,
so courts interpret in the most correct manner and there by establishing its uniform
use too and ensuring uniform impart of justice.
IMPORTANT POINTS TO KEEP IN MIND WHILE INTERPRETATING:
 The Statute must be read as an entire context.
 The intention of the framers of the legislation should be kept in mind.
 Interpretation should be such as to make the Statute meaningful, effective and
workable.
 The process of construing should be literal as well as purposive i.e., one should shift
from literal meaning if it leads to absurdity.

Basic rule of interpretation: THE LITERAL RULE: The cardinal rule of interpretation is
to give the words their natural, original and exact meaning, given that the words are clear and
keeping in mind the object of the statute. The rule states that the provisions should be
examined in their literal sense and be given their natural effect. This rule is also known as
Plain Reading Rule i.e., the provisions should be read as it is and there should not be any
addition or substitution of words while interpreting.
The plain meaning of the rule can be stated as: “what the law says rather than what the law
means”But even while giving such literal meaning the object of the statute as a whole must
be kept in mind. The same has been quoted by Viscount Haldane that “if the language used
has natural meaning, we cannot depart from that meaning unless, reading the statute as a
whole, the context directs us to do so.”
It was held in the case of Tata Consultancy Services v. State of A.P.that: “A literal
construction would not be denied only because the consequences to comply with the same
may lead to penalty. The courts should not be over zealous in searching for ambiguities or
obscurities in words which are plain.”
Following conditions must be understood to understand the literal rule:
The statute must in its interpretation section provide for special meanings of the terms (i.e.
the definition sections).
If not provided by the statutes then technical words be given ordinary technical meanings.
Words may not be inserted by implications.
With course of time words may undergo shifts in their meanings.
It should be kept in mind that words acquire significance from their context.
This rule somehow restricts the process of interpretation and even makes it inflexible in its
purest form. And other criticism to this rule is that it rests on the assumption that words have
fixed meaning, which is erroneous as a single word may have multiple meanings in reference
to different contexts it is used in.
THE MISCHIEF RULE: The mischief rule focuses on determining the intent of the
lawmakers while interpreting. The rule was originated in UK in 16th century and was set out
in Heydon’s case and it was held that the main aim while interpretation a statute should be to
determine the “mischief and defect” that the statute set out to give ruling for implementing
the effective remedy. This rule basically tries to answer the question as to what was the
mischief which previous law could not cover and which subsequently lead to formation of the
given statute in question.
The Heydon’s Case laid four points that needs to be considered while interpreting a statute,
namely:
What was the common law before the drafting of the Act?
What was the “mischief and defect” that the common law did not issue for?
What remedy the parliament had resolved to cure the disease of the commonwealth?
What is the authentic reason of the remedy?
The use of this rule provides a judge more room to effectively decide on lawmaker’s intent
rather than being bound by the literal and golden rule.
The rule is criticized on the basis that it makes the laws uncertain and also confers to the
more power to the unelected judiciary which is objected being undemocratic. And also, it is
considered out of date as common law is no longer primary source of law now.

THE GOLDEN RULE: This rule is also known as “British Rule”. This rule provides
flexibility in the process of interpretation by providing the scope of deviating from the natural
meaning of the word in order to avoid absurdity. In other words, this rule allows a judge to
depart from the actual meaning of a word in case where construing the actual meaning leads
to absurd result. This rule almost overcomes the shortcomings of the Literal Rule and
Mischief Rule. It provides a compromise between the two rules by giving words their plain
ordinary meaning generally but providing room to depart when it leads to irrational result not
in consonance to the Legislative Intent. In case of homographs, if a word has multiple
meanings then the judge can apply the most preferred meaning. At same time, if a word has
only one meaning but using it would lead to bad decision then the judge can apply a
completely different meaning altogether.
The rule may be used in narrow as well as wide sense. When the rule is applied where the
words are ambiguous themselves, it is said to be narrow use of the rule and this is the most
frequently use of the rule. When the rule is applied to avoid obnoxious results to public
policy, it is said to be used in wide sense.
RULE OF HARMONIOUS CONSTRUCTION: This rule is adopted when there is conflict
between two or more statutes or two or more parts of the same statute. The rule states that in
case of conflict the provisions should be construed in a manner to harmonize them in a way
that effect is given to both the provisions as much as possible. The rule is based on the
premise that each statute has a purpose and it should be read as a whole and all the provisions
should be interpreted consistently. The interpretation should not render one provision useless
and cannot use one provision to defeat other provisions, unless and until there is way to
reconcile the differences.
In case of CIT V Hindustan Bulk Carriers SC, laid down that: “the courts must avoid head on
clash of seemingly contradicting provisions and they must construe the contradictory
provisions so as to harmonize them.”

ADR: MODES AND PRACTICE OF ADR: Alternative dispute resolution is kind of

method where an independent person assist citizens in dispute, strive to the issues among
them. An ADR aid disputant to settle their dispute outside the courtroom and it is very
flexible and can be used for almost any kind of dispute.
Kinds of alternative dispute resolution practice are as follows –
Arbitration: The term arbitration has been incorporated under section2 (1) precisely
reproduces the book of article 2(a) of the exemplary legislation. The arbitration which means
any arbitration whether or not comes under the stable arbitral body. As for as arbitration is
concerned, it is kind of system in which the parties mutually submitted their dispute to an
arbitral tribunal then tribunal will makes a decision on the dispute that shall be binding in
nature so that it is binding on the parties. The arbitration is not a purely judicial procedure but
it is a kind of non judicial trial procedure for adjudicating disputes. There are four
requirement of the concept of arbitration-an arbitration agreement, a dispute, a reference to a
third party for its determination and an award by the third party. This is very important to
know that the forum chosen by the parties with an intention that it must act judicially after
taking into account relevant evidence before it and the submission of the parties. If the forum
chosen is not require to act judicially, the process it is not arbitration.
Mediation/conciliation: Mediation and conciliation are not binding procedure in which an
impartial third party, assist them to both the parties to disputes in reaching a consensual
consented in settlement of the conflict. The conciliation and mediation are the identical
words. in both the method as prosperous conclusion of proceeding result in jointly consented
settlement of dispute between the parties though in some jurisdiction conciliation is treated as
distinct from , mediation in as much as the mediation the emphasize is extra constructive
function of the impartial third person.
Negotiation: Negotiation is a kind of non binding method involving direct interaction of the
disputing parties in which the parties approach to other with offer of a negotiated settlements
on the basis goal judgment of each other’s position. A trade off of others interest not involve
in dispute is not rare and willingness to reach at a negotiated settlement on the part of the
both the parties are compulsory nature of negotiation.
Lok Adalat: The concept of Lok Adalat for the first time has been introduce in the state of
Gujarat in 1982.The main purpose to introduce this concepts was to reduced huge burden
which was on the court due to increasing fresh litigation and large numbers of cases pending
in the court. LokAdalat is an appropriate method to resolve the dispute without intervention
of court proceeding so that it has been recognized as a statutory body under the legal service
authority act, 1987.
Legal service Authorities Act, 1987: The Legal Services Authorities Act, 1987 was brought
into force on 19 November 1995. 12 The object of the Act was to provide free and competent
legal services to the weaker sections of the society to ensure that opportunities for securing
justice are not denied to any citizen. The concept of legal services which includes Lok Adalat
is a conducting Lok Nyayalayas prior to this Act, the same has not been given any statutory
recognition. But under the new Act, a settlement arrived at in the Lok Adalats has been given
the force of a decree which can be executed through Court as if it is passed by it. Sections 19,
20, 21 and 22 of the Act deal with Lok Adalat. Section 20 provides for different situations
where cases
can be referred for consideration of Lok Adalat. Delhi High court has given a landmark
decision
highlighting the significance of Lok Adalat movement in the case of Abdul Hasan and
National
Legal Services Authority v. Delhi Vidyut Board and Others.The court passed the order giving
directions for setting up of permanent Lok Adalats.

CONCLUSION:To conclude, alternative dispute resolution is a substitute to conventional

court system whereby dispute between parties is resolved without intervention of court
proceeding. In countries like India, where billions of cases are pending in the court which
ultimately leads to frustration amongst the people about the court system and its capacity to
dispense justice so that the peoples are scared and losing their confidence in the technique of
justice delivery system. This is very important that this faith need to be restored and process
adopted which don’t have the complexities of lengthy proceedings but are as useful and
binding on the parties adopting it. It is therefore pertinent to mention that ADR is neither
intended to replace nor supersede the existing legal system but are proving instrumental in
reducing the extra-burden which is on court in India.
Justice defined by Rawls:** John Rawls’s theory of justice comprises of two main
principles. While the first principle addresses the issue of basic civil and political rights, the
second one deals with socio-economic inequalities.
In other words, the first principle to some extent seems to be inclined to the idea of negative
rights and the second one to the idea of positive rights and obligations.
John Rawls First Principle of Justice: states that every citizen should have a claim to a set
of equal basic liberties. Further, the liberties of one individual should be compatible with the
liberties of another. Simply put, one’s liberty must not encroach upon another liberty.
Rawls enumerated these basic liberties to include the basic fundamental rights like freedom
of speech and expression, association, religion, etc. Interestingly, in addition to basic civil
and political rights, they also include the right to a basic income and the right to vote.
John Rawls Second Principle of Justice: contains two parts.
-The first part states that socio-economic institutions must guarantee fair equality of
opportunities for competition to public offices and employments.
-The second part states that inequalities arising out of social and economic institutions must
be arranged in a manner so as to the least advantaged members of society in the best possible
manner.
Of these two postulates under principle two, the first one takes precedence over the other.
These two principles of John Rawls theory of justice can be combined into three points in the
following order of precedence-
-That every citizen should be equally entitled to a set of basic rights and liberties;
-That everyone should have equal opportunity to compete for public offices; and
-Socio-economic inequalities must work for the benefit of the least advantaged members of
society.
John Rawls Original Position: is a hypothetical situation where people would choose the
principles of Justice. This original position connotes a situation where basic structures of
society are just. Under this original position, people would be under “a veil of ignorance”
about their race, gender, social class, and every other arbitrary marker that leads to socio-
economic disparities and injustices.
This ensures that no one is advantaged or disadvantaged in the choice of principles by the
outcome of natural chance or the contingency of social circumstances, argues Rawls.

John Rawls Veil of Ignorance: says that everyone in the original situation would be under a
veil of ignorance about his socio-economic status. The underlying rationale if everyone is
unaware of their socio-economic status, they would invariably choose such principles of
justice which are fair and just.
According to Rawls, “since all are similarly situated and no one is able to design principles to
favor his particular condition, the principles of justice are the result of a fair agreement or
bargain”.
What is John Rawls Justice as Fairness? By justice as fairness, John Rawls means that his
principles of justice are chosen in a situation that is fair.
In other words, it is the hypothetical original situation where everyone would be under a veil
of ignorance about his status, background, and all other arbitrary markers.
Rawls argues that in this initial position that is fair and just, people would choose the first
principle of justice concerning basic civil and political rights which everyone would be
equally entitled to.
This first principle of justice, Rawls believes “is to regulate all subsequent criticism and
reform of institutions”.
Rawls probably believes that having secured equal rights and liberties in the original situation
that is just and fair, people would necessarily establish socio-political institutions and edifices
that are also just and fair to everyone.
John Rawls Difference Principle:The second part of the second principle of justice deals
with the difference principle.
The difference principle provides that socio-economic inequalities are just only if “they result
in compensating benefits for everyone”, and in particular to the least advantaged members of
society.Put differently, unequal social and economic advantages are justified only if
-They benefit everyone
-They are attached to offices and positions open to all.
Similarly, less than extensive liberty is also acceptable as long as it strengthens the overall
system of liberty.
Criticism of John Rawls
John Rawls has been accused of abstractions and hypothecation in formulating his theory of
justice.
-One criticism is that Rawls presumes that if the basic structures of society are just, society
will also be just.
-Another criticism is that he did not negate the unequal distribution of socio-economic
benefits in certain situations.
Though in his second principle of justice, Rawls emphasized equal distribution of socio-
economic benefits, he did not see any harm in unequal distribution of wealth provided it is
advantageous to everyone and it is attached to offices open to all.
Is it not like a dog owner throwing a few bones to a tail-waggling dog after enjoying a
sumptuous meal? No, because the dog had no equal opportunity to have the same sumptuous
meal as the owner was having.
The second part of Rawls’s second principle of Justice accepts unequal distribution only
if such benefits arose out of public offices and positions open to all.
Nonetheless, John Rawls’s theory of justice assumes significance in the philosophical debates
on the redistribution of advantages and economic benefits arising out of social cooperation.

**RULE OF EVIDENCE: Basic rule of evidence: The basic prerequisites of admissibility

are relevance, materiality, and competence. In general, if evidence is shown to be relevant,
material, and competent, and is not barred by an exclusionary rule, it is admissible.
4. Types of Evidence: a. Oral evidence: Oral evidence refers to a statement made by a
witness in court concerning a matter of fact. The oral evidence is therefore the inclusion of
such witnesses who testified to the facts or knew the facts they removed and which must be
recorded by the court.
b. Documentary Evidence: `Written evidence ‘is a document for examination by a court or
judge. The document is proof only if it is produced for a court examination.
c. Direct evidence: Direct or positive evidence is evidence of the actual point of contention.
Oral evidence should always be accurate. The evidence is clear that if a court is to impose it,
it should rely only on witnesses while it is reasonable to rely on not only witnesses but also
other people.
d. Proof of Circumstances: In simple terms `Circumstantial Evidence’ means evidence
relating to a series of cases which, when combined, help the court to reach any decision, in
the absence of eyewitness testimony. Evidence of condition should not be confused with
hearing or secondary evidence. Proof of status is always accurate but proves any relevant
circumstances.

Cardinal rule of evidence: A cardinal rule or quality is the one that is considered to be the
most important.
Principle Of Best Evidence Rule: 1. The relevant facts and Fact in Issue shall be duly proved
to the satisfaction of the court.
2. Evidence must be confined to matter in issue, fact in issue, relevant fact.
3. Hearsay evidences must not be admitted. 4. Documentary evidence will exclude the oral
evidence, documentary evidences are considered to be intrinsic evidence whereas oral
evidences are extrinsic evidence.
5. Primary evidence will exclude secondary evidence. 6. Special powers to the court to
extract the best evidence under this power court may ask any questions to the parties or
witnesses to arrive at a just decision in the case by finding the truth behind relevant facts or
fact in issue.
Legal rights by Hohfeld mode of rights: A right is an interest protected and enforced by law.
In law it is mostly applied to property in its restricted sense, but it is often used to designate
power, prerogative, and privilege. The words ‘right’ or ‘privilege’ have a variety of
meanings, like ‘a legal claim to do’, ‘legal power’, ‘authority,’ ‘immunity granted by
authority’. A man has several rights over both tangible and intangible objects. He also
possesses rights as a person.
Rights can be divided into 4 different kinds:-Rights in the strict sense-Immunities-Liberties-
Powers
The correlatives of each of these rights are: -Duties -No-Rights-Liabilities- Disabilities

Hohfeld’s Analysis of Legal Rights: Liberty and No-Rights

-Liberty is defined as the exercise of a right without the interference of law. By adding all the
rights and duties across relationships, the degree of liberty can be determined. A perfect
liberty is one where no one has any exclusive right to restrain the occurrence of a given act.
-Liberty does not mean interference with others like liberty to free speech on public affairs
does not grant a person the right to publish defamation. Likewise one has the liberty to self-
defense against violence but no right is conferred to engage in revenge against the person
who inflicted the injury.
-Liberty is exercise of unrestrained activity permitted under law. The primary difference
between liberty and rights in strict sense is that things we do for ourselves are termed as
liberty whereas things which others do in our respect are classified as rights in strict sense.
-No-right is the correlative of liberty. It means absence of a right. The term ‘no-right’
basically implies that a certain person does not have a right against another individual in a
particular respect.

Power and Liabilities

Another set of legal rights come in the form of powers. Ex- power to make a will, the power
to take legal action against someone, the power to sell a property if the mortgagee does not
receive the money from the mortgagor etc. Power determines legal relations and gives rise to
either ‘authority’ or ‘capacity’. ‘Authority’ is the exertion of power over others whereas
‘capacity’ is power exerted over oneself.
-Powers and rights in the strict sense are different because in the latter case, a corresponding
duty always exists which is absent in the former case. Example- right to create a will does not
result in a corresponding obligation for someone else.
Private or Public powers– Private powers are exercised by individuals. Public powers lie
with state agencies or instruments that carry out public functions. Example- powers exercised
by the judiciary, legislature and executive.
-Liability is defined as the alteration of a person’s legal rights by the person exercising
power. Ex- the determination of a lease by re-entry of the landlord places a liability on the
tenant, one against whom a judgement has been passed is liable to have a decree of execution
etc.
-Liability is not concerned with the fruitful or unfruitful result in any given case. For
instance, a person committing a tort is duty bound to pay compensation and is liable for an
action to be brought against him/her as well. However, someone who is not a tortfeasor is not
under any duty to pay compensation but is equally liable for an action to be instituted, that in
all probability will fail, as no grounds exist.
-Liability can also be seen as an advantage or benefit. A person who professes to transfer his
property as a gift through the exercise of power, the person entitled to the gift has a liability
to receive it.
Immunities and Disabilities- Another category of rights is immunity from legal power. The
relationship between immunity and power is identical to that of liberty and right in the strict
sense. Immunity implies a complete lack of liability.
-Disability, the correlative of immunity, is better known as inability and signifies the absence
of power. The legal maxim ‘Nemo dat quod non habet’ means that no person can transfer a
better title in property than what is possessed by oneself, is an expression of disability.
Conclusion: principles of Hohfeld’s analysis of rights and his work is the essential tool for
gaining not only a conceptual but a practical understanding of the nature of rights. Hohfeld’s
work consists of a deep analysis by which he sought to reflect the ideas that people hold
about rights. Although analytical and its nature, Hohfeld’s analysis is of fundamental
practical value.

Module-3: Research:
What does it mean? A term can be best understood with reference to the purpose it seeks to
achieve. The purpose of research is either to know about or to contribute something new to
the
existing state of knowledge. A directionless, unspecific, unsystematic and mere surface
brushing would give us results that cannot reveal realistic outcomes. general understanding,
of knowing that is, pure, basic or fundamental research or to find something new as in form
of a solution that is applied or action research, putting in broader terms a research fulfills one
or more of the following objectives: 2.1 To contribute to existing knowledge in a discipline
(for ex, law). Research can give us new set of perspectives at looking at things. For ex-
historical events are continuously revised and reviewed on the basis of research.
2.2 To inform policy making (for example, crime, housing, education) Research also informs
policy ques.
2.3 To address a specific issue or ques. Research findings are also used to answer a specific
issue at hand. It stemmed from the concerns that the conventional researches were not
having much impact and, thereby, new approaches that were seen as being more relevant
and practical in the real world settings were developed.
3. Legal Research : This is not an easy task to find the law in a vast mass of statutes which
are constantly amended and supplemented by rules regulations, orders, directives, ordinances,
judgment of courts, and bye-laws. Also for making advancement in the science of law
requires a systematic probe into the underlying principles of and reasons for law. Thus, legal
research has a broad ambit to it. It has to be continuously done by legislators, a judge, a
lawyer, a law student and a law teacher.
4. Purpose of Legal Research: Law does not sit in a vacuum instead it operates in a
complex social context. It reflects attitudes and behavioral norms, and also control and mould
them. However as these norms are also temporo-spatial, that is changing with time and space,
it is
desirous that law has to adapt and be dynamic in order to cope with the changes. Thereby,
legal research becomes essential for ascertainment of law, to point out ambiguities and
weaknesses of law, to critically examine the laws in order to ensure coherence, consistency
and stability of law and its underlying policy, to conduct a social audit of the law, and to
suggest reforms in the law.Taking them one by one:
4.1 Ascertaining the law: In a complex mass of legal statues and coupled with allied legal
material it is not always easy to find the law on a particular point. They are scattered and a
single issue may involve application of various laws. A researcher needs to locate, analyze
and understand these pronouncements.
4.2 Highlighting ambiguities n gaps: A law is not designed to address every contingency that
might arise in future. Because it’s the nature of law that it is reactive it answers to problems
which had arisen and seldom is it that it is proactive. Secondly even the phraseology of a
provision may not fit with the legislative intent or may not match with other provisions of the
Act. Research highlights these gaps and inbuilt ambiguities.
4.3 Determining coherence, stability and consistency: Via a process of critical evaluation of
the law a researcher can exhibit the consistency, coherence and stability in the law. This helps
in future designing and dev. of law, legal provision or doctrine, as the case may be.
4.4 Social auditing of law: It’s a pre-legislative step done in order to understand and
appreciate the social factors that had an impact on the making of the law. It enables one to
know the stakes the law intends to protect or change and reasons for the same. Such an audit
helps to identify gap, if any between the legal ideal and the social reality and to know the
reasons responsible thereof. It also enables us to predict the future of law.
4.5 Suggesting reforms: In the light of the research reforms can be proposed in precise terms.
These outcomes can be on the basis of an analytical, historical and comparative research.
5. Broad Nature of Legal Research
On the basis of data collection and analysis two broad categories can be used to
describe different approaches:
5.1 Quantitative Legal Research: The quantitative research is characterized with surveys,
structured interviews, experiments, tests as tools for data collection. It produces data which
can be made subject to statistical analysis. So the findings can be presented in numerical
forms.
5.2 Qualitative Legal Research: Participant observation, unstructured interviews, or life
histories are some of the qualitative research methods. The outcome is presented in the form
of descriptions.
6. Kinds of Legal Research
The basic types of research can be broadly classified in various subsets wherein they
can be understood in comparison with another kind of research. Those are:
6.1 Descriptive and Analytical Legal Research: The former describes the state of affairs as it
exists. It describes the phenomenon, reporting what has happened or what is happening,
without going into the reason or cause for the same. The tools used are surveys, comparative
and co-relational methods and fact-finding enquiries. But it does not establish any
relationship
between the variables. The analytical research however uses the facts and info. available to
make a critical evaluation.
6.2 Applied and Pure Legal Research: The aim of the former is to find a solution to a
pressing practical problem at hand. Research is putted in a practical context. The latter
focuses on generalization and formulation of a theory. Its aim is to broaden the understanding
of a particular field of investigation. The researcher does not focus upon the practical utility
of the results.
6.3 Quantitative and Qualitative Legal Research: As mentioned the former is about quantity
or amount, that is, what can be expressed in numerical form of results. The latter however
aims at garnishing views and opinions to give outcomes. It relies on reasons behind a
particular
behavioral aspect.
6.4 Conceptual and Empirical Legal Research: The conceptual research is related with an
abstract notion or an idea. Generally
resorted to by the philosophers and thinkers to develop new concepts or reinterpret
the existing concepts. The latter however relies upon experience and
observation alone. It is data based, coming up with results that can be verified by
observations or experiments.
7. Other Major Methods of Legal Research.
The other major methods used in legal research are:
7.1 Doctrinal Legal Research**: The central question of enquiry here is ‘what is the law?’ on
a particular issue. It is concerned with finding the law, rigorously analyzing it and coming up
with a logical reasoning behind it. Therefore it immensely contribute to the continuity,
consistency and certainty of law. The basic material can be found in the statutory material i.e.
primary sources as well in the secondary material. However, the research has it own
limitations, it is subjective, that is limited to the perception of the researcher, away from the
actual working of the law, devoid of factors that lie outside the periphery of law, and fails to
focus on the actual practice of the courts.
7.2 Non-doctrinal Legal Research: Also known as socio-legal research, it looks into how the
law and legal institutions moulds and affect the society. It employs methods taken from other
disciplines in order to generation an empirical data to answer the questions. It can either be
answering a problem, like to find the gap between idealism and social reality, could be
tracing the results legal decisions, also can assess impact of non-legal factors upon
legal processes or decisions, or may be a reform based approach. It is about viewing
law from the perspective of a different discipline to keep it organic and growing, that
is, to put things in a context. Being empirical it is vital and valuable in revealing and
explaining the legal practice and procedures and their impact on range of social
institutions, like family, businesses, citizens, consumers.
7.3 Comparative Legal Research: This involves a comparison of legal doctrines, legislations
vis-a vis foreign laws. It
highlights the cultural and social character of law and how does it acts in different
settings. So it is useful in developing and amending, and modifying the law. But a
cautious approach has to be taken in blindly accepting the law of another social
setting as an ideal because it might not act in the same manner in a different setting.
8. Source of Information
The various sources of information can be classified into:
8.1 Primary Sources
The sources that contain authoritative records of law made by law making bodies is a
primary source. They can be legislation, rules, regulations, orders, bye-laws by
delegated authorities, and the authoritative decisions of the courts.
8.2 Secondary Sources
The secondary sources are the one that refer and relate to the law while not being
themselves primary sources, for example, legal commentaries, abstracts, dictionaries,
encyclopedia and index.
9. Process of Legal Research
Research is a process involving backward and forward movement between different
stages so they cannot be as neatly separated. Nevertheless, they can be divided into
the following for understanding the different stages:
9.1 Choosing a focal point of Research
Identifying and formulating a research problem is the first step in the process. If ill defined
and not properly formulated the researcher is bound to lose interest in the
research. The researcher has to have a precise goal in sight. For that purpose it is
necessary for the researcher to identify an area of general interest from that field an
area of specific interest and within that area of specific interest a particular aspect that
he would like to inquire into. That would signify the focus and direction of his
inquiry. That has to based on study done from the secondary sources like a
commentary, a scholarly article, like Blackstone’s Commentaries on the Laws of
England. Secondary sources would point a researcher to the primary sources of the
law namely, legislative texts and judicial decisions.
9.2 Review of literature
That is necessary because it would make the results to be both valued and valuable. It
is a survey of the existing related works in order to find out as to what has already
been discussed on the particular aspect; it will also give an understanding as to what
has not been discussed. The researcher’s aim is to contribute something new to the
existing state of knowledge so therefore he has to choose from the latter area. This
also justifies his research and makes it an original contribution. It also helps in
avoiding the possible pitfalls, and informs areas that might have been neglected in the
research questions.
9.3 Formulation of Hypothesis
On the basis of an extensive literature survey, a researcher might re=phrase or
reformulate the problem. That can be depending upon the nature of research can be in
the form of a mere statement or a proposition indicating relationship between
variables, the validity of which is not known. Such propositions are known as
hypothesis. So it is a tentative statement the validity or invalidity of which has to be
tested on the basis of research. The manner in which it is formulated gives a hint of
methods required, kind of data needed and the method of analysis required for the
research.
9.4 Research Design
It signifies the structure of the research. It is characterized by a logical systematic
planning of the research, a blue-print. Though it may be tentative, as the researcher
cannot foresee all the contingencies that might arise and thus he can adapt as required
which would increase the efficiency and reliability of his findings.
9.5 Data Collection
It involves decision making as to the method to be employed to collect the data. That
determines the fate of the research. For determining the appropriate method a
researcher has to keep in mind the objectives of the research and the scope of the
inquiry. Data may be primary or secondary. Data collected by primary sources is
primary. While one collected from some other agency or available in some published
form is secondary. A data has to be relevant and authoritative that would primarily
depend upon the scope and focus of the research question.
9.6 Data Analysis
The next task after collection of data is its analysis. The raw data has to be putted to
analysis so as to reflect the direction and trend. Analysis happens before
interpretation. There is no clear cut demarcation between the two as analysis is not
complete without interpretation and interpretation cannot precede analysis. They are
thus interdependent. Analysis involves processes like classification and
categorization (arranging data in classes according to their resemblance or affinity),
coding (assigning symbols or numerical to every class so that it can be counted or
tabulated), and tabulation (arranging data in requisite rows and columns, this can
show relation between variables and also facilitate comparison). In a legal research
cases are also required to be analyzed, however, with a caution that two different set
of facts can lead to different outcomes, or may be for the reason that an earlier case
law can be distinguished on the basis of question of law raised.
9.7 Interpretation of Data
It is drawing inferences from the collected data. That can be inductive or deductive.
Inductive is inference from particular propositions to general propositions, while
deductive is inferences from general proposition to particular propositions. The
interpretation gives the broader meaning to research findings and as well trigger new
researches. However, caution must be exercised in interpreting the data it needs to be
impartial and objective. A wrong interpretation can lead to inaccurate and misleading
conclusions.
9.8 Report
The last phase is report writing. Though, this he communicates his work to the
audience. Report contains significant facts, those are the problem, method used and
the findings arrived at by the researcher. It has to be original and with precise clarity
in communicating the results.
10. Major problems in Legal Research
The major problems while undertaking a legal research are as following:
1. Cultural problems
2. Structural and procedural problems (for example, unsympathetic attitude of
authorities.)
3. Lack of resources, (for example, Access, money etc.)
4. Incompetence (For example inadequate planning etc.)
5. Lack of networking and forums
11. Conclusion: Legal research is a systematic understanding of the law with a view of its
advancement. The purposes of the same are very important to the people and society
because law acts within the society and they both had an impact on each other. Every
kind of research method had its own value. However, while undertaking a research a
researcher might face some hurdles but they can be avoiding by proper planning of
the research process.