Legal Methods

Course Objectives:
Law is an autonomous discipline and has its own materials and methods. However,
law is related to other processes in society, mainly social, political and cultural. This course
is designed to familiarize the students with basic research skills, sources of legal materials, to
find the law and case law and to make the students appreciate law in the context of other
social processes. The course will lay groundwork for a student to think and act like a lawyer.

Course Content:
Unit - I: The Discipline of Law
What is Law?, Meaning and Definition, Is Law necessary?, Purpose and Functions of Law,
Law and Society, Connection of Law with Other Disciplines, Sources of Law: Statutes,
Precedents, Customs, Values.

Unit - II: Legal Systems

Classification of Laws/Legal Systems: Public and Private, Procedure and Substantive,
Municipal and International, Civil and Criminal, Kinds of Wrongs, Legal Systems - Common
Law System, Legal System in England and India, Civil Law System, Systems of Dispute
Resolution: Adversarial and Inquisitorial, Brief Overview of Alternate Dispute Resolution
Systems.

Unit - III: Academic Research

Research: Meaning and Significance of Research, Conducting Research, Steps, Developing a
Topic, Locating and Collecting Information: Primary and Secondary Sources, Evaluating and
Analyzing Information and Sources, Using, Organising and Communicating Information,
Complying with Legal, Ethical and Moral Standards.

Unit - IV: Legal Materials

Legal Materials, Statutes: Kinds, Parts of Statute, Judgments, Law Reports, Reports of Law
Commissions, Constituent Assembly Debates.

Unit - V: Case Law Techniques

Precedent, Doctrine of Stare Decisis, Ratio Decidendi, Obiter Dicta, Factors affecting value of
precedent, Rules of interpretation of statutes, Question of Law and Question of Fact,
Application of law to facts.

Books Prescribed:
1. Lloyd Dennis, Idea of Law, London; Penguin Books Chapters 1 and 9.
2. Glanville Williams, Learning the Law, London, Stevens & Sons 1982.
LEGAL METHODS
UNIT - I
UNIT – I: THE DISCIPLINE OF LAW

• What is Law?
• Meaning and Definition
• Is Law necessary?
• Purpose and Functions of Law
• Law and Society
• Connection of Law with Other Disciplines
• Sources of Law:
• Statutes
• Precedents
• Customs
• Values
 WHAT IS LAW?

• 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 Right
from the viewpoint 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.
 WHAT IS LAW?

• General sense of law –

• According to Salmond “In its widest sense the term law includes rule of
action”. That is to say, the relation derived from the nature of things.
Hence general laws may fall into three classes –
• Devine laws : These relate to the will of the supernatural power and
thus they are a part of the science of theology.
• Physical laws : These are expressions of the uniformities of nature such
as law of motion, gravitation etc.
• Human laws : These are laws by analog.
• Strict sense of law –
• Law as a general rule of external Human action – Thomas Holland
• Law as a command of the Sovereign – John Austin
• Law as a tool of Social Engineering – Roscoe Pound.
• Law as dictate of the Reason - Salmond
• Law as practice of the Courts – Oliver Wendell Holmes
 MEANING OF LAW

• Law – is a social science

• It grows and develops with the development of
society
• General meaning of law -
• A rule established by authority or by custom.
• It regulates the behavior of a state.
• In other words -
• It is the legislative pronouncements of the rules which should
guide one’s action in the society.
• It is a rule of action to which human beings conduct must
conform.
 DEFINITION OF LAW

• Sir William Blackstone – 18th Century

• “Law in its most general and comprehensive sense means a
rule of action or actions whether animate or inanimate,
rational or irrational”. Thus we say, the law of motion,
gravitation, nature and of nation.
• John Austin – 18th Century
• “In the widest sense, law is a rule laid down for the guidance of
an intelligent being by an intelligent being having power over
him”. In other words, it is the aggregate of rules set by men as
politically superior or sovereign to men as politically inferior.
• John William Salmond – 19th Century
• “The body of principles recognized and applied by the state in
the administration of justice”. In other words, it is consisted of
the rules recognized and acted upon by the court of justice.
 FUNCTIONS OF LAW
• Plato –
• “Mankind must either give themselves a law and regulate their lives by
it or live no better than the wildest of the wild beasts”
• St. Thomas Hobbes –
• “Law was brought into the world for nothing else but to limit natural
liberty of particular men in such a manner as they might not hurt but
assist one another and join together against a common enemy”
• John Locke –
• “The end of law is not to abolish or restrain but to preserve or enlarge
freedom”
• Jeremy Bentham –
• “Maximization of the happiness of the greatest number of the
members of the community”
• Roscoe Pound –He treats law as a species of social
engineering.
• He attributed four major functions of law, namely:
1. Maintenance of law and order in society;
2. To maintain status quo in society;
3. To ensure maximum freedom of individuals; and
4. To satisfy the basic needs of the people.
 FUNCTIONS OF LAW

Today the following are taken as important functions of

law:
• Social control –
• Informal social control – divine laws
• Formal social control –
o According to Lawrence Freedman two ways in which law plays
important role in social control:
▪ law clearly specifies rules and norms that are essential for the society and
punishes deviant behavior.
▪ the legal system carries out many rules of social control (Police arrest
burglars, prosecutors prosecute them, courts sentence them, prison
guards watch them, and parole broads release them).
• Dispute settlement –
• Through courts
• Through Alternative Dispute Resolution (ADR’s)
• Social change –
• Amendments
 IS LAW NECESSARY?

• Man can attain a truly human condition given the

existence or non-existence of law.
• Goal being – food and drink.
• Hunt for what is good for man.
• Man is amalgam of good and bad impulses constantly in
conflict.
• When the bad tends to prevail over the good, it seems
evident that here are dark and dangerous forces
implanted in man’s very nature.
• This need to be sternly curbed and which, if not curbed,
will lead to the total destruction of the social order.
• And in such case mans state would be no higher than
that of animals.
• Law is then the indispensable restraint upon forces of evil.
 IS LAW NECESSARY?

• On the other hand, man’s nature is inherently good and

seek to find the sources of ills of man’s present condition
in situations external to man himself.
• Hence look for fundamental defect in man’s social
environment as the true cause of the evils which afflict
him.
• The most conspicuous features of this environment are
government of the reigning powers and the legal system
through which they exert their political authority.
• In the age of social reforms, it was seemed that such
critics would have better directed towards reformation
of existing laws rather than to its total elimination.
 IS LAW NECESSARY?

• On one hand, mans nature was intrinsically evil and no

social progress could be attained without the restraints of
penal laws.
• On the other hand, man was originally created good by
nature but due to sin, corruption, or some other such
internal weakness the true nature had become distorted
and thus required for its control the rigorous of punitive
system of law.
• 3rd Century BC in China – “Legists”:
• Man is intrinsically evil and the good ways in which men acted were
due to either teachings of rituals or the restraints of penal laws.
• ‘A single law, enforced by severe penalties, is worth more for the
maintenance of order than all the words of sages.’
• Indian writers – “Shastras”:
• Men are by nature passionate and if left to themselves the world would
resemble a ‘devil’s workshop’ where the logic of fish would reign.
 IS LAW NECESSARY?

• Jean Bodin – A French Jurist:

• The original state of man was one of disorder, force and
violence.
• Thomas Hobbes – An English Jurist:
• Describes life of primitive man as a state of perpetual warfare,
where individual existence was brutish, nasty and short.
• David Hume – A Scottish Jurist:
• Without law, government and coercion the human society
could not exist and so in this sense law was a natural necessity
of man.
• Niccolò Machiavelli – An Italian Jurist:
• He told the then prince that Men are naturally bad and will not
observe their faith towards you, so you, so you must, in the
same way, not observe yours to them.
 LAW AND SOCIETTY

• Plato – 429 – 348 B.C.

• Law is one of the means to social control.
• The state of republic is an executive state, governed by the
free intelligence of the best men rather than by the rule of
law. Justice is to be administered “without law”.
• Law is always imperfect.
• Aristotle – 384 – 322 B.C.
• A state based on law is the only practicable means of
achieving “good life”.
• The man with eminence in virtue must rule the state with
law.
• Rightly constituted laws should be the sovereign.
• Imperfection of law can be cured by principle of equity.
 LAW AND SOCIETTY

• George Hegel – 1700-1831

• Realization of freedom can be fulfilled only under law and
state.
• Law is chief instrument which is based upon a reason to
secure freedom.
• Karl Marx – 1818-1883
• Emergence of proletarian dictatorship state through
revolution.
• Society is built upon super structure of economics.
• Law is instrument of exploitation by rulers against mass poor
people.
• Law and state is the mask of rulers to protect their own
selfish interest.
 SOURCES OF LAW

• Source of Law- Meaning

• Custom as a Source of Law

• Precedent as a Source of Law

• Legislation as a Source of Law

• Values as a source of law

 SOURCE OF LAW - MEANING

• Sources of law mean the sources from where law or the

binding rules of human conduct originate.
• Legal experts approach the sources of law from various
angles:
• Austin considers sovereign as the source of law.
• Savigny and Henry Maine consider custom as the most important
source of law.
• Natural law school considers nature and human reason as the source
of law,
• Theologians consider the religious scripts as sources of law.
• John Austin said that the term ‘source of law’ has three
different meanings:
1. This term refers to immediate or direct author of the law which
means the sovereign in the country.
2. This term refers to the historical document from which the body of
law can be known.
3. This term refers to the causes that have brought into existence the
rules that later on acquire the force of law. E.g. customs, judicial
decision, equity etc.
 SOURCE OF LAW - CLASSIFICATION

• Salmond on Sources of Law- Salmond has done his own

classification of sources of law:
• Formal Sources- A Formal Source is as that from which rule of
law derives its force and validity. The formal source of law is the
will of the state as manifested in statutes or decisions of the
court and the authority of law proceeds from that.
• Material Sources- Material Sources are those from which is
derived the matter though not the validity of law and the
matter of law may be drawn from all kind of material sources.
• There are three major sources of law can be identified in
any modern society are as follows:
1. Custom
2. Judicial precedent
3. Legislation
4. Values
 CUSTOM AS SOURCE OF LAW

• Customs - The long established practices or

unwritten rules which have acquired binding or
obligatory character.
• Broadly, there are two views which prevail in this
regard on whether custom is law –
• Austin opposed custom as law because it did not originate
from the will of the sovereign.
• Jurists like Savigny consider custom as the main source of
law. According to him the real source of law is the will of the
people and not the will of the sovereign.
• The will of the people has always been reflected in
the custom and traditions of the society. Custom is
hence a main source of law.
 KINDS OF CUSTOMS

• Customs can be broadly divided into two

classes:
• Customs without sanction: These kinds of customs
are non-obligatory in nature and are followed
because of public opinion.
• Customs with sanction: These customs are binding
in nature and are enforced by the State.
 CUSTOMS WITH SANCTION

• These customs may further be divided into the

following categories:
• Legal Custom: Whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts.
Legal custom may be further classified into the following
two types:
• General Customs: These types of customs prevail throughout the
territory of the State.
• Local Customs: Local customs are applicable to a part of the
State, or a particular region of the country.
• Conventional Customs: These are binding on the parties to
an agreement. When two or more persons enter into an
agreement related to a trade, it is presumed in law that
they make the contract in accordance with established
convention or usage of that trade.
ESSENTIALS OF A VALID CUSTOM

• Antiquity:
• In order to be legally valid customs should have been in existence for
a long time, even beyond human memory.
• Continuous:
• A custom to be valid should have been in continuous practice. It must
have been enjoyed without any kind of interruption.
• Exercised as a matter of right:
• Custom must be enjoyed openly and with the knowledge of the
community. It should not have been practiced secretly. A custom
must be proved to be a matter of right.
• Reasonableness:
• A custom must conform to the norms of justice and public utility. A
custom, to be valid, should be based on rationality and reason.
• Morality:
• A custom which is immoral or opposed to public policy cannot be a
valid custom.
• Status with regard to:
• It is imperative that a custom must not be opposed or contrary to
legislation.
 WHY CUSTOM IS IMPORTANT
SOURCE OF LAW
• According to Salmond – Two main reasons:
• It is the embodiment of those principles which have
commanded themselves to the national conscience as
principles of justice and public utility.
• The existence of an established usage is the basis of a
rational expectation of its continuance in the future.
• According to Keeton –
• Before state organs undertook the task of framing laws for
the community, who made laws? – It was people.
• The rules elaborated by habit were enforced in popular
courts.
• Thus, the state in advancing its authority takes over and
enforces customary rules, first formulated by the people
themselves for their own regulation.
 CUSTOM - FURTHER ANALYZED

• Austin’s view on customs – Two propositions:

• It is not every custom that is binding but only those which are
valid-the validity being determined by judicial recognition.
• A sovereign or a legislature very often abolishes customs and is,
therefore, superior to them. A custom is law only because a
sovereign allows it to be so.
• Hollands view of custom –
• Customs are not laws when they arise but they are largely
adopted into laws by state recognition of the existence of a
custom.
• Courts require that not only the existence of a custom be
proved but it should also be proved that the same is
reasonable.
• The legislature can also abrogate customs whether partially or
wholly.
PRECEDENT AS A SOURCE OF LAW

• Precedent – It is a previously decided judgment of the superior

courts, such as the High Courts and the Supreme Court, which
judges are bound to follow.
• It is an important feature of the English legal system as well as
of other common law countries.
• According to Salmond –
• In loose sense, it includes merely reported case law which may be
cited & followed by courts. In strict sense, that case law which not
only has a great binding authority but must also be followed.
• According to Keeton –
• A judicial precedent is a judgment to which authority has in
some measure been attached.
• According to Bentham - ‘Judge made Law.’
• According to Austin – ‘Judiciary’s Law.’
 THEORIES OF PRECEDENT

• There are two theories of precedent:

1. Declaratory Theory:
▪ Judges do not make law but only declare law.
▪ According Blackstone, judges are sworn to determine not
according to their own private judgement but according to the
known law and custom of the land.
▪ Power to make law is not delegated to them. They have to find
the law, explain it and apply it to given situation.
2. Authoritative Theory:
▪ Courts do more than just declaring law.
▪ Henry Maine points out the gulf between the archaic English
Common law and social necessities of the progressive English
society was being narrowed down by formulating, extending,
modifying and improving the principles of equity.
 KINDS OF PRECEDENT

Authoritative Persuasive
Precedent Precedent
 ADVANTAGES

1. Respect for ancestor's opinion.

2. Evidences for existence of customs.

3. Saving of labour.

4. Certainty in law.

5. Flexibility to the law.

6. More practical.

7. It brings scientific development in law.

8. It is guiding force and eliminates errors is future decisions.

 DISADVANTAGES

1. Overlooking Authorities.

2. Conflicting judgements.

3. They are generally developed on certain incidents.

4. Erroneous decisions.
 LEGISLATION AS A SOURCE OF LAW

• The term ‘legislation’ is derived from two Latin words

i.e. ‘legis’ and ‘latum’ where the former means
‘law’ and later means ‘to make’.
• Sir John William Salmond-
• legislation is that source of law which consists in the declaration of
legal rules by a competent authority.
• John Austin –
• there can be no law without a legislative act, meaning that the
law is made by a supreme or a sovereign authority which must be
followed by every stratum of the society.
• According to Gray –
• “Legislation implies the formal expression of the administrative
organs of the general public.”
 KINDS OF LEGISLATION

• Supreme Legislation - The Supreme legislation is the legislation

adopted by the sovereign intensity of the state.
• Subordinate Legislation - Subordinate legislation will be legislation by
some other authority than the Supreme specialist in the state. It is
made under the powers designated by the Supreme authority.
• Colonial Legislation - The nations which are not autonomous, and are
under the control of some other state have no Supreme capacity to
make law. The laws made by them are subject to the Supreme
legislation of the state under whose control they are.
• Executive Legislation - At the point when legislative powers are
delegated by the designated official to an executive, it is called
executive legislation.
• Judicial Legislation - Powers delegated to the judicial system to make
and implement their own laws to maintain transparency in the
judicial system of the country.
 KINDS OF LEGISLATION

• Municipal Legislation - Municipal bodies are offered powers to make

bye-laws concerning their neighbourhood matters. Bye-law made by
a neighbourhood body works inside its individual area. In India, such
municipal bodies are Municipal corporations, Municipal Boards, Zila
Parishads, and so on.
• Autonomous Legislation - At the point when the Supreme authority
gives powers upon a gathering of people to administer on the issues
depended to them as a gathering, the law made by the last is
known as the autonomous law and the body is known as a self-ruling
body.
• Delegated Legislation – Delegated (subordinate or subsidiary)
Legislation alludes to those laws made by people or bodies to whom
parliament has delegated law-making powers.
 ADVANTAGES

• Abrogative Power — It can change or annul old law, which

control isn’t controlled by different sources.
• Effectiveness — It separates the elements of making law and
overseeing it between the Legislature and the legal executive.
• Declaration — it gives that principles of law will be known
before they are authorised.
• Reliance on Accidental Legislation — Legislation is
independent and emerges out of as the authoritative source
of law it need not hold up until the original case of legislation.
• Unrivalled in Form — It is predominant in structure, brief, clear,
effectively available and understandable as against case law,
which is an increase of sense in a considerable amount of
pointless issue.
 DISADVANTAGES

• Unbending nature—Law in the legislation is inflexible though the

law in the precedents is versatile and adaptable.
• In view of Hypothesis — Legislation, for the most part, continues
on speculative certainties, by considering the existing
environment and surrounding in which the established law is
frequently observed to be blemished in its application to the
mind-boggling issues emerging in genuine life though piece-
scratches develop out of the commonsense exigencies and
convenience.
• An excessive amount of Importance to the Wordings —Legislation
appends a lot of significance to its wordings. Thus, if the
articulation is faulty, the law in itself gets effectively turned. In the
precedents, the wording matters close to nothing as there is a
genuine introduction which performs separate checks on the
applicability of precedent as a source of law. Same goes with the
customary law as well.
LEGAL SYSTEMS

UNIT - 2
 SYLLABUS

• Classification of Laws/Legal Systems-

• Public and Private.
• Procedure and Substantive.
• Municipal and International.
• Civil and Criminal.
• Kinds of Wrongs.
• Legal Systems –
• Common Law System.
• Civil Law System.
• Legal System in England and India.
• Systems of Dispute Resolution: Adversarial and Inquisitorial,
• Brief Overview of Alternate Dispute Resolution Systems.
 CLASSIFICATION OF LAW
LAW

NATURAL LAW POLITICAL LAW

NATIONAL LAW INTERNATIONAL LAW

CONSTITUTIONAL LAW ORDINARY LAW

PUBLIC LAW PRIVATE LAW

ADMINISTRATIVE LAW GENERAL LAW

CENTRAL LAW STATE LAW CENTRAL LAW STATE LAW

 PUBLIC AND PRIVATE LAW

SN PARTICULARS PUBLIC LAW PRIVATE LAW

Responsible for regulating
Responsible for regulating a
the activities b/w two or
1. Definition harmonious relation b/w the
more private entities in a
citizens and the state.
just and fair manner.
Secure private
Ensure the public interest of interests/freedom of the
2. Purpose
the general population. individuals in the
community.
Individuals and the state are Private individuals are the
3. Parties
the main parties. parties.
Aims to protect the public Aims to protect the private
4. Aim
interest. interest.
Include the payment of
Includes penal sanction and
5. Sanction damages, injunction,
payment of damages.
specific performance etc.…
 SUBSTANTIVE AND PROCEDURAL LAW

Sl.
PARTICULARS SUBSTANTIVE LAW PROCEDURAL LAW
No.
Deals with those areas of
Deals with and lays down
law which establish the
the ways and means by
rights and obligations of
1. Definition which substantive law can
individuals, what
be enforced.
individuals may or may
not do.
Independent powers to
2. Powers decide the fate of a No independent powers.
case.
Can be applied in non- Cannot be applied in non-
3. Application
legal contexts. legal contexts.
By Act of Parliament or
4. Regulation government By statutory law.
implementation.
 MUNICIPAL AND INTERNATIONAL LAW

Sl.
PARTICULARS MUNICIPAL LAW INTERNATIONAL LAW
No.
It applies to activities within a
It applies to situations in which
certain state’s territory or
1. Jurisdiction states must interact with each
where the state’s nationals
other (war, trade, etc.)
are involved.
It is mainly made by
parliament, congress, or other
legislative bodies with some It is mainly made by treaties
2. Making laws being made by where a country signs, ratifies
executive bodies and in or incorporates.
common law countries, laws
being made by the courts.
It is enforced by and It is normally enforced when a
executive body like the state breaks a law and it is up
police whereby courts will to states to say that they did
3. Enforcement
impose a penalty when something wrong and it is up
police can prove the non- to them to take themselves to
adherence to law. court (ICJ).
 CIVIL AND CRIMINAL LAW

Sl.
PARTICULARS CIVIL LAW CRIMINAL LAW
No.
It deals with crime and the
It deals with disputes b/w
legal punishment of criminal
individuals, organizations,
offences. It maintains
1. Definition or between two in which
stability of the state and
compensation is awarded
society by punishing the
to victim.
offenders.
2. Case filed by Private party Government (State)
Defendant is convicted if
Defendant can be found
3. Decision guilty and acquitted if not
liable or not liable.
guilty.
Innocent till proven guilty,
Burden of
4. Claimant must give proof. the prosecution must prove
proof
defendant guilty.
Type of Compensation for injuries Custodial (imprisonment) or
5.
punishment or damages. non-custodial (fines).
 CIVIL AND CRIMINAL WRONG

• Breach of Contract

• Tort
• Negligence, nuisance, defamation, assault, battery,
trespass to land, interference with goods.

• Breach of Trust

• Civil obligation – restitutionary and compensatory

• Quasi Contract

• Unjust enrichment
 MAJOR LEGAL SYSTEMS OF THE
WORLD

• The three important major legal systems of

the world:

• Common law and equity legal system.

• Civil law legal system.

• Religious legal system.

 COMMON LAW AND EQUITY
LEGAL SYSTEM
• It operates the doctrine of judicial precedent.
• The method of adjudication is adversarial in contrast to
inquisitorial. This means that judges are not expected to leave
the bench and come into the field.
• Unlike civil law, most of the laws in common law legal system
are not codified.
• Also, the jury system originated in common law.
• In the common law, judges make law through their various
decisions.
• Unlike the civil law its judges are not career judges. Before a
person can be a judge in a common law legal system he has
to have been a practicing lawyer for a while.
• Countries that practice common law include: Nigeria, United
states of America(excluding Louisiana), Canada(excluding
Quebec), India and most other former British colonies.
 CIVIL LAW LEGAL SYSTEM
• The influence of scholars on the evolution of civil law is very
significant. It is usually said that while common law is judge
made, civil law is university made.
• The laws in civil law legal systems are largely codified.
Codification is the compilation of laws into a single document
according to subject matter.
• The doctrine of judicial precedent doesn’t apply in civil law.
• The judiciary in civil law is made up of career judges in
contrast to common law where judges have to be initially
lawyers.
• Another feature is that in civil law the administration of justice
is inquisitorial in contrast to the adversarial nature of common
law.
• Countries that practice civil law include France, Germany,
Norway, Netherlands and Europe.
RELIGIOUS LAW LEGAL SYSTEM

• This system is based on religious teachings, as they are

enshrined in the religious scriptures.
• It is based on morality rather than commercial
requirement of human behavior in all aspects of a
person’s self and social life.
• Islamic law, Shariat, is the most widely practiced religious
legal system in today’s world. It is based on the Holy
book of Islam, the Quran and on interpretation of the
practices and sayings of Prophet Mohammad.
• Some other examples:
• Jewish law - Jews
• Canon Law - Roman Catholic Church - Christians
• Hindu Law – Hindus
• Countries that practice civil law include Oman, Yemen,
Saudi Arabia, Sudan, Egypt, Iran, Nigeria etc.…
 Adversarial System Inquisitorial System
The adversarial system aims to get the truth through the open competition The inquisitorial system is generally aims to get the truth of the matter
between the prosecution and the defence. through extensive investigation and examination of all evidence.

In an adversarial system all parties determine what witnesses they call and In an inquisitorial system the conduct of the trial is in the hands of the
the nature of the evidence they give. The court overseeing the process by court. The trial judge determines what witnesses to call & order in which
which evidence is given. they are to be heard.
There is little use of judicial precedent in inquisitorial systems. This means
In adversarial systems previous decisions by higher courts are binding on
Judges are free to decide each case independently of previous decisions by
lower courts.
applying the relevant statutes.
In an adversarial system the rule of lawyers is active. In an inquisitorial system the rule of lawyers is passive.
The judges pronounce judgment depending on the hearing, evidence or on
The judge plays an active rule for questioing & hearing the parties directly.
the basis of examination & cross-examination.
In an adversarial system the rule of the judges are merely passive in nature. In an inquisitorial system the rule of the judges is very active.
The case management does not depends upon the judges so the judges The case management depends upon the judges so the judges contribution
contribution is very low for the disposal of any case. is very high for the disposal of any case.
In an adversarial system all references are presented by the respective In an inquisitorial system references also presented by the judge & they
lawyers of both the parties. play’s an active rule.
The case management depends upon the lawyer’s of both the parties &
The case management depends upon the judges and the judges fixes the
they get unfattered opportunity for the case management upon there own
term for the disposal of any case.
wishes.
In an adversarial system the hearing, evidence or examination & cross- In an inquisitorial system documents and information about the real facts
examination done by the lawyer get priority. get priority.
Case management is not effective under this system because the judges Case management is effective under this system & the judges sits with the
can not exchange views with the parties for taking any decision. So no parties and can exchange views for taking any decision for speedy disposal
initiative can be taken for speedy disposal of any case. of any case.
In an adversarial system judges has discretionary power but that is not wide
In an inquisitorial system judges have wide discretionary power.
by the evidence.
Repeated time petition (common practice) is permitted at the time of The main object of this system is to reduce the time for disposing a case
continuance of the case & the lawyer’s take the opportunity of making time and to ensure speedy justice. Judge plays an active role in deciding time
petition. So delay occurs in disposal of any cases. petition & may honored or reject time petition.
ALTERNATIVE DISPUTE RESOLUTION SYSTEM

• Just like the diversity in causes of disputes, the

settlement models are also varied.
• A cost-effective and quick resolution of disputes.
• It is an alternative to the traditional process of
dispute resolution through courts.
• It consists of a set of practices and techniques to
resolve disputes outside the courts.
• It actively involves parties themselves to settle their
disputes and it results in the amicable settlement of
disputes, which is not possible generally through
courts.
• These practices are escape routes from the
tiresome adjudication process.
ALTERNATIVE DISPUTE RESOLUTION SYSTEM

• The ADR techniques mainly include:

• Arbitration
• Conciliation
• Mediation
• Negotiation

• In India, Lok Adalat stands as another additional

form of ADR mechanism, which combines different
techniques like conciliation, mediation, and
negotiation.
 ARBITRATION

• Arbitration is a process for settlement of disputes fairly

and equitably through a person or persons or an
institutional body without recourse to litigation by the
disputing parties pursuant to an agreement.
• It may be ad-hoc, contractual, institutional, or statutory.
• A neutral third person chosen by the parties to the
dispute settles the disputes between the parties in
arbitration.
• Though it resembles the courtroom based settlement, it
involves less procedure and parties’ choice of arbitrator.
• At present, arbitration is the only legally binding and
enforceable alternative to ordinary court proceedings.
 CONCILIATION

• Conciliation is a private, informal process in which a

neutral third person helps disputing parties to reach
an agreement.
• It is a process whereby the parties, together with the
assistance of the neutral third person or persons,
systematically isolate the issues involved in the
dispute, develop options, consider alternatives and
reach a consensual settlement that will
accommodate their needs.
• Usually, the conciliator in this process would
independently investigate the dispute and draft his
report indicating the method of settlement of
disputes.
 MEDIATION

• Mediation involves the amicable settlement of disputes

between the parties with the help of a mediator.
• The task of the mediator is to bring the parties together
to the process of amicable settlement of their disputes.
• A mediator would influence the parties to cut down their
demands with a view to reaching a mutually
acceptable solution.
• The mediator plays the role of a facilitator in attaining
cooperation between the parties to the dispute.
• Mediation lays emphasis on the parties’ own
responsibilities for making decisions that affect their lives
instead of a third party judging the fate of parties to the
dispute.
 NEGOTIATION

• Negotiation closely resembles mediation.

• It is more often referred to as a method wherein the
parties to the dispute themselves would settle their
disputes.
• The negotiation process provides the parties an
opportunity to exchange ideas, identify the irritant
points of differences, find a solution, and get a
commitment from each other to reach an
agreement.
 LOK ADALAT

• Lok Adalat is a unique system developed in India.

• It means people’s court.
• It is a forum where voluntary effort at bringing about a
settlement of disputes between the parties is made
through conciliatory and persuasive means.
• It encompasses negotiation, mediation and conciliation
as tools to settle disputes between the parties.
• Lok Adalat's have been given the powers of a civil court
under the Code Civil Procedure.
Academic
Research
Unit - 3
 Research: Meaning and Significance
of Research

Conducting Research

Syllabus Developing a Topic

Locating and Collecting Information: Primary and
Steps: Secondary Sources
Evaluating and Analyzing Information and Sources
Using, Organizing and Communicating Information

Complying with Legal, Ethical and

Moral Standards
 Research: Meaning

It is combination of two words The process of collection of It is a technique for discovery of Britannica:
evidence or information for truth.
ascertaining an assumption or
verifying some hypothesis.
Re + Search = Research - which means The act of searching into a matter closely
the repetition of search. and carefully
Inquiry directed to the discovery of truth
The trained scientific investigation of the
principles and facts of any subjects,
based on original and first hand study of
authorities or experiments investigations
of every kind which have been based on
original sources of knowledge.
 R. R. Rusk – a Scottish Educational Psychologist:

• “A point of view, an attitude of inquiry or a frame of mind. It asks

questions which have hitherto (up till now) not been asked and it seeks
answer to them by following a fairly definite procedure”.

John W. Best - author of Research in Education Book:

• “A systematic &objective analysis and recording of controlled

Research: observations that may lead to the development of generalizations,

principles, or theories, resulting in prediction and possibly ultimate
control of events”.

Definitions Francis Bacon – An English Philosopher:

• “A power of suspending judgement with patience of mediating, with

pleasure of asserting with caution, of correcting with readiness and of
arranging thought with scrupulous plan”.

Redman and Mary:

• “A systematized effort to gain new knowledge”.

 The main purposes of research are to inform action, gather evidence for theories,
and contribute to developing knowledge in a field of study.

It's a tool for building knowledge and facilitating learning.

It's a means to understand issues and increase public awareness.

Significance It helps us succeed in business.

of Research It allows us to disprove lies and support truths.

It is a means to find, gauge, and seize opportunities.

It promotes a love of and confidence in reading, writing, analyzing, and sharing

valuable information.

It provides nourishment and exercise for the mind.

Characteristics of Research
Generalized.
Critical Controlled.

Credibility. Rigorous.

Analytical &
Empirical.
Accuracy.

Employs
Systematic
hypothesis

Validity. Reliability.
 Pure / Basic /
Application of Fundamental
Research
research study Applied / Decisional
Research

Types of Objectives in
undertaking the
Descriptive Research
Co-relational
Research

Research
Explanatory
research Exploratory Research

Inquiry mode Structured approach

employed for Unstructured
approach
research
Pure / Basic / Fundamental Research:
• A research activity taken up to look into some aspects of a problem
or an issue for the first time is termed as basic or pure.
• It involves developing and testing theories and hypotheses that are
intellectually challenging to the researcher but may or may not
have practical application at the present time or in the future.
• The knowledge produced through pure research is sought in order
to add to the existing body of research methods.
• Pure research is theoretical but has a universal nature.
• It is more focused on creating scientific knowledge and predictions
for further studies.
Applied / Decisional Research:
• Applied research is done on the basis of pure or fundamental
research to solve specific, practical questions; for policy
formulation, administration and understanding of a phenomenon.
• It can be exploratory but is usually descriptive.
• The purpose of doing such research is to find solutions to an
immediate issue, solving a particular problem, developing new
technology and look into future advancements etc.
• This involves forecasting and assumes that the variables shall not
change.
Descriptive Research:
• This attempts to explain a situation, problem, phenomenon, service or
programme, or provides information viz. living condition of a community, or
describes attitudes towards an issue but this is done systematically.
• It is used to answer questions of who, what, when, where, and how associated
with a particular research question or problem.
• This type of research makes an attempt to collect any information that can be
expressed in quantifiable terms that can be used to statistically analyze a
target audience or a particular subject.
• It is used to observe and describe a research subject or problem without
influencing or manipulating the variables in any way. This type of research is
conclusive in nature, rather than inquisitive.
• E.g. explaining details of budget allocation changes to departmental heads in
a meeting to assure clarity and understanding for reasons to bring in a
change.
Co-relational Research:
• This is a type of non-experimental research method, in which a researcher
measures two variables, understands and assesses the statistical relationship
between them with no influence from any extraneous variable.
• This is undertaken to discover or establish the existence of a relationship/
interdependence between two or more aspects of a situation.
• For example, the mind can memorize the bell of an ice cream seller or sugar
candy vendor. Louder the bell sound, closer is the vendor to us. We draw this
inference based on our memory and the taste of these delicious food items.
This is specifically what co relational research is, establishing a relationship
between two variables, bell sound and distance of the vendor.
• Co relational research is looking for variables that seem to interact with each
other so that when you see one variable changing, you have a fair idea how
the other variable will change.
Explanatory Research:
• The research whose primary purpose is to explain why events occur, to
build, elaborate, extend or test a theory. It is more concerned with
showcasing, explaining and presenting what we already have.
• It is the process of turning over 100 rocks to find perhaps 1 or 2
precious gemstones.
• Example: Explanatory survey research may look into the factors that
contribute to customer satisfaction and determine the relative weight of
each factor, or seek to model the variables that lead to people shifting
to departmental stores from small shops from where they have been
making purchases till now.
• An exploratory survey posted to a social networking site may uncover
the fact that an organization‘s customers are unhappy thus helping the
organization take up necessary corrective measures.
Exploratory Research:
• Exploratory research is conducted to find a solution for a problem that has not been
studied more clearly, intended to establish priorities, develop operational definitions
and improve the final research design.
• It helps determine the best research design, data-collection method and selection of
subjects.
• A researcher starts with a general idea and uses this research as a medium to identify
issues that can be the hub for future research.
• An important aspect here is that the researcher should be willing to change his/her
direction subject to the revelation of new data or insight.
• For example: a fast food outlet owner feels that increasing the variety of snacks will
enable increase in sales, however he is not sure and needs more information. Thus
the owner starts studying local competition, talks to the existing customers, friends
etc to find out what are their views about the current menu and what else do they
wish to be included in the menu and also assess whether he would be able to
generate higher revenues.
Structured Approach:

• The structured approach to inquiry is usually classified as quantitative

research.
• Here everything that forms the research process- objectives, design,
sample, and the questions that you plan to ask of respondents- is
predetermined.
• It is more appropriate to determine the extent of a problem, issue or
phenomenon by quantifying the variation.
• Example: How many people have a particular problem? How many
people hold a particular attitude?
• Example: Asking a guest to give feedback about the dishes served in a
restaurant.
Unstructured Approach:
• The unstructured approach to inquiry is usually classified as qualitative
research.
• This approach allows flexibility in all aspects of the research process.
• It is more appropriate to explore the nature of a problem, issue or
phenomenon without quantifying it.
• Main objective is to describe the variation in a phenomenon, situation or
attitude
• Example: description of an observed situation, the historical enumeration of
events, an account of different opinions different people have about an issue,
description of working condition in a particular industry.
• Example: When guest is complaining about the room not being comfortable
and is demanding a discount the staff has to verify the claims empathically.
Conducting Research

Method plainly means a Methodology can be understood

particular procedure for as a set of specific procedures or
Conducting of research is called
accomplishing or approaching techniques used to identify,
as methodology.
something, especially a select, process, and analyze
systematic or established one. information about a topic.

It is the systematic, theoretical The most important

analysis of the methods applied methodological choice
to a field of study. It comprises researchers make is based on the
the theoretical analysis of the distinction between qualitative
body of methods and principles and quantitative data i.e. whether
associated with a branch of it would collect descriptive data
knowledge. or a quantifiable data.
Conducting Research
• Before the research begins it is important to decide the methods of data
collection would be qualitative or quantitative.
• The process of research addresses two major questions i.e. what is to be found
and how it is be found.
• It is like planning a journey where we first decide where we are going and then
we decide how we shall be travelling.
• We have to identify important stopovers and routes, check points, modes
available to reach the destination.
• The steps involved in finding responses to the research questions comprise
research methodology.
• At each operational step in the research process one is required to choose
from a variety of methods, procedures and models of research methodology
which help you to best achieve the objectives.
How to determine the appropriate research
process:
• The following aspects need to be considered to
determine the appropriate research process:
1. Whether the research is being conducted to address a
function within or an external one?
2. What sorts of method/s are to be used to collect data?
3. What method of analysis should be used?
4. What are the objectives?
5. Whether the methods used are appropriate to the
research?
 Steps involved in Research

Developing a Topic Locating and Evaluating and Using, Organizing

Collecting Analyzing and
Information: Information and Communicating
Primary and Sources Information
Secondary Sources
 Developing a Topic
• Choose a research paper topic that interests and challenges you the most.
• Your attitude towards the topic may well determine amount of effort, enthusiasm you put into your research.
• Focus on a limited aspect, narrow it down from “Religion” to “World Religion” to “Buddhism.”
• Avoid themes that have only a very narrow range of source materials.
• Address requirements of each paper section such as research questions, methods, analysis, and discussion,
among others.
• One of the initial steps you should perform in making a paper stand out is doing a bit of initial exploring to
see what is out there already, think about future outline, thesis or hypothesis.
• Ask what has already been done about this particular issue in the past.
• Are there pathways that have not yet been explored, which student should shed light on?
• Indeed, one can make paper stand out by ensuring that some new or novel insights are explored, no matter
how small.
 Narrowing the Topic

After going through the It’s not appropriate if It won’t be a good Pursue the unique At this stage, you
necessary amount of chosen issue is very solution to cover them pathway that caught should explain the
information, data and broad as there may be all in one research your interest, and that’ll reasons why your
literature available on several important paper as it’ll turn out occupy a niche as well research study is
your desired topic, it is aspects within this very vague or generic. as advance the value of essential and describe
time to narrow the theme. the conversation in detail the significance
research down. regarding the subject. of your research.
 • The gathering of data may range from simple observation
to a large-scale survey in any defined population.
• The approach selected depends on the objectives of the
study, the research design, and the availability of time,
money, and personnel.
• With the variation in the type of data (qualitative or
quantitative) to be collected, the method of data collection
Locating and also varies.
• The most common means for collecting quantitative data is
Collecting the structured interview.
• Studies that obtain data by interviewing respondents are
Information: called surveys. Data can also be collected by using self-
administered questionnaires. Telephone interviewing is
another way in which data may be collected.
• Other means of data collection include the use of secondary
sources, such as the census, vital registration records,
official documents, previous surveys, etc.
• Qualitative data are collected mainly through in-depth
interviews, focus group discussions, KII, and observational
studies.
 • Data processing generally begins with the editing
and coding of data. Data are edited to ensure
consistency across respondents and to locate
omissions, if any.
Evaluating • In survey data, editing reduces errors in the
recording, improves legibility, and clarifies
and unclear and inappropriate responses. In addition
to editing, the data also need coding.
Analyzing • Because it is impractical to place raw data into a
Information report, alphanumeric codes are used to reduce
the responses to a more manageable form for
and Sources storage and future processing.
• This coding process facilitates processing the
data. The personal computer offers an excellent
opportunity in data editing and coding
processes.
 • Data analysis usually involves reducing
accumulated data to a manageable size,
developing summaries, searching for patterns,
and applying statistical techniques for
understanding and interpreting the findings in
Evaluating the light of the research questions.
• Further, the researcher, based on his analysis,
and determines if his findings are consistent with the
Analyzing formulated hypotheses and theories.
• The techniques to be used in analyzing data may
Information range from simple graphical technique to very
complex multivariate analysis depending on the
and Sources objectives of the study, research design
employed, and the nature of data collected.
• As in the case of methods of data collection, an
analytical technique appropriate in one situation
may not be appropriate for another.
Using, Organizing and Communicating
Information
• It is necessary to prepare a report and transmit the findings and recommendations to
administrators, policymakers, and program managers for the intended purpose of making a
decision.
• There are various forms of research reports: term papers, dissertations, journal articles, papers
for presentation at professional conferences and seminars, books, and so on. The results of a
research investigation prepared in any form are of little utility if they are not communicated to
others.
• The primary purpose of a dissemination strategy is to identify the most effective media
channels to reach different audience groups with study findings most relevant to their needs.
• The dissemination may be made through a conference, a seminar, a report, or an oral or
poster presentation.
• The style and organization of the report will differ according to the target audience, the
occasion, and the purpose of the research. Reports should be developed from the client’s
perspectives.
 An executive summary;

A Background of the problem;

Literature review;
Research Methodology;
Report Findings;

should Discussion;

contain Conclusions and

Recommendations.
Using, Organizing and Communicating
Information
• The results of the study can also be disseminated through peer-reviewed journals
published by academic institutions and reputed publishers both at home and abroad.
• These journals have their format and editorial policies. The contributors can submit
their manuscripts adhering to the policies and format for possible publications of
their papers.
• There are now ample opportunities for the researchers to publish one’s work online
as well.
• Many interesting studies have been conducted by the researchers without having any
effect in actual settings. Ideally, the concluding step of a scientific study is to plan for
its utilization in the real world.
• Although researchers are often not themselves in a position to implement a plan for
utilizing research findings, they can contribute to the process by including in their
research reports a few recommendations regarding how the results of the study
could be utilized for policy formulation and program intervention.
 Credits to authors
• Plagiarism Check

IPR Protection
Complying • Prior permission to use copyrighted materials

Legal Defamation
Standards • Do not use anything which defame somebody

Do not report anything barred by law

• Against country, hurting religious beliefs,
confidential information
 • Discuss intellectual property frankly
• Be conscious of multiple roles
• Follow informed-consent rules
• When done properly, the consent process
Complying ensures that individuals are voluntarily
participating in the research with full knowledge
Ethical and of relevant risks and benefits.
• Respect confidentiality and privacy

Moral • Discuss the limits of confidentiality.

• Know federal and state law.
• Take practical security measures.
Standards • Think about data sharing before research begins.
• Understand the limits of the Internet.
• Tap into ethics resources
• The Belmont Report.
• APA's Ethics Code,
Legal
Materials

Unit - 4
 Statutes-

• Kinds
• Parts of Statute

Judgments

Syllabus
Law Reports

Reports of Law Commissions

Constituent Assembly Debates

Statutes
• A Statue means any Law, Act, Enactment. The Parliament is given authority of Lawmaking.
According to Blacks Dictionary, "A Statute is a formal written enactment of Legislative authority
that governs a country, state, city or county. In Simple words, it is the Law, Enactment, Act.

• According to Gray, The process by which a Judge (or indeed any person, lawyer or layman who
has occasion to search for the meaning of a statute) constructs from the words of Statute book a
meaning which he either believes to be that of a legislature or which he proposes to attribute to it,
is called interpretation.

• According to Subba Rao J. "Interpretation is the method by which the true sense or the meaning
of the word is understood." (The State of Jammu and Kashmir V. Thakur Ganga Singh, 1960 2SCR
346)
Kinds of Statutes
• Classification on the basis of Object:
i) Codifying Statutes -
• A Codifying Statute is a Statute which presents a detail authoritative statement of the rules of law on a given
subject. The object is not merely to declare the law upon some particular subject but to declare it in the form of
code.
• Example - Civil Procedure Code 1908, The Hindu Marriage Act 195 The Hindu Succession act 19556.
ii) Consolidating Statutes -
• Consolidating Statute it is a Statute which presents the whole body of statutory law on the subject in complete form
repealing the former Statute. It is a Statute which consolidated laws on a particular subject at one place. The main
purpose of the consolidating statute is to present the whole body of statutory law on a subject in complete form
repealing the former statute.
• Example - Arbitration and conciliation act 1996
Kinds of Statutes
• Classification on the basis of Object:
c) Remedial statute -
• Remedial Statutes are those statutes which provide the remedy for a wrongful act in the form of damages or compensation
to the aggrieved party but do not make a wrongdoer liable for any penalty. This types of Statute are beneficial to the weaker
section of the society. They are directed towards extending a certain benefit to the particular class of society... Therefore
they are also called as welfare legislation, for example, industrial dispute act 1947 workmen compensation act 1923,
Consumer Protection Act 1986.
• Examples - Workmen's Compensation Act 1923, Maternity Benefit Act 1961 Consumer Protection Act 1986, Industrial
Dispute Act 1947.
d) Enabling statute -
• Enabling statute is a Statute Which enables something to be done. It basically gives the power to do something.
• According to Craies, "many statutes have been passed to enable something to be done which was previously forbidden by
law, with or without prescribing the way it is to be done.
Kinds of Statutes
• Classification on the basis of Object:
e) Amending Statute -
• As we all know, Amendment means a change in the existing law. A law is amended when it is in whole or in part
permitted to remain and something is added to or taken away from it or it is some way changed or altered to make
it more complete or perfect or make it suitable to accomplish the purpose for which it was made.
f) Repealing Statute -
• Repealing Statute is a Statute which repeals Statute which already exists.
• Example - The Code of Criminal Procedure,1973 repealed and reenacted Criminal Procedure Code 1898.
g) Taxing Statute -
• A tax is imposed for the public purpose for raising general revenue of the state. A taxing statute is to be strictly
construed.
• According to Lord Halsbury and Lord Simonds stated, "The subject is not to be taxed without clear words for that
purpose; and also that every Act of Parliament must be read according to the natural construction of its words."
h) Penal Statute -
• A penal statute is one which Punishes certain acts or wrong. Such Statute may be in the form of a comprehensive
criminal code or large number of sections providing punishment for different wrongs for example - Criminal
Procedure Code, Indian Penal Code etc. The penalty for disobedience may be in the form of fine, forfeiture of
property, imprisonment, death sentence etc.
Kinds of Statutes
• Classification by method -
i) Mandatory Statute -
• A Mandatory statute may be defined as one whose provisions or requirements, if not
complied with, will render the proceedings to which it relates illegal and void.

ii) Directory Statute -

• A directory statute is one where noncompliance will not invalidate the proceedings to
which it relates.
Kinds of Statutes
• Classification by reference to duration -
i) Temporary Statute -
• This type of statutes are Statutes which are in existence for a known Period such Statutes are called
Temporary Statute. Life period of Statute is Fixed. In simple words this type of Statute, the period of
operation is fixed by the statute itself the statute is temporary in nature.
ii) Permanent/ Perpetual Statute -
• When no time period is fixed the statute is permanent in nature. The dictionary meaning of the term
'perpetual' is forever. Therefore perpetual Statutes are those which remain in force forever.
• These Statutes comes to an end only when they are abolished by the legislature itself by way of
enacting another Statute.
Parts of Statute
• Title of the statute
• Preamble
• Marginal Notes
• Headings
• Illustrations
• Definition or Interpretation Clause
• Punctuation
• Schedules
• Saving Clause
• Proviso
• Exception
Title of the Statute
• There are basically two types of title-
I. Short Title
• The short title of the Act is only its name which is given solely for the purpose of reference and identification.
• Short title is mention under Section 1 of the Acts and ends with the year of passing of the Act.
• Example- Section 1 of CPC says, This Act may be cited as Code of Civil Procedure, 1908.' Section 1 of Indian contract Acts
says, This Act may be called as Indian Contract Act, 1872.
II. Long Title
• The long title is mention under certain acts whose purpose is to give a general description about the object of the act.
• However, it is not considered as a conclusive aid to interpretation of statutes as it doesn't resolve ambiguity arising in words
or expression under statutory provision but only provide a general idea of the act.
• Example- The long title of CrPC says, An act to consolidate and amend the laws relating to the criminal procedure. Also, the
long title of CPC says, An act to consolidate and amend the laws relating to the procedure of the courts of civil judicature.
Preamble
• Preamble is a tool for internal aid to interpretation as it contains the main objects and reasons of
the Act.
• The rule of interpretation of preamble is that when a language of an enactment is clear and
unambiguous, the preamble has no part to play but if more than one interpretation is possible, a
help can be taken from preamble to ascertain the true meaning of the provision.
• The preamble is mention on the very first page of the act but modern acts doesn't pass with
preamble which is declining its importance.
• State of West Bengal v. Anwar Ali, the constitutionality of Section 5 of the West Bengal special
courts act, 1950 was challenged on the grounds of violative of Article 14 of the constitution as the
provision in the act authorize state government to select a particular case which deserved to be
tried by special courts having special procedure. The Supreme Court took help of the preamble of
the said Act and held that state government has discretion to choose such cases.
Marginal Notes
• Marginal notes are inserted at the side of the sections in an act which express the effect of the
section but they are not part of statute.
• They are also known as Side notes and are inserted by drafters and not legislators.
• The rule of interpretation is that in olden times a help is used to be taken from marginal notes
when the clear meaning of the provision is in doubt but as per modern view of the court, marginal
notes doesn't have any role to play because either they are inserted by legislators nor does they
form the part of the statute.
• However, for interpreting constitution many times marginal notes are referred because they are
made by constituent assembly.
• Bengal Immunity Company v. State of Bihar, the Supreme Court held that the marginal notes of
Article 286 is the part of the Constitution of India which talks about Restrictions as to imposition of
the tax on the sale or purchase of goods therefore, it could be relied on to furnish a clue to the
purpose and meaning of the article.
Headings
• Headings are prefixed to sections or a group or set of sections.

• These headings have been treated by courts as preambles to those sections or sets of sections.

• The rule of interpretation is that the heading can't control the plain words of the provision but if
after the plain reading of the section more than one meaning is possible, only then the court may
seek guidance from the headings.

• Tolley v. Giddings, interpretation of section 217 of Road Traffic Act was in question which provides
that a person could be held liable of an offence if he allowed himself to be driven away in a motor
vehicle without the consent of its master. The heading of the provision is Miscellaneous and
general' and sub heading is Penalization of taking motor vehicle without authority'. The court held
that headings to the section clearly explain the intention of the legislature and thus the passenger
would be held liable of an offence.
Illustration
• Illustration are appended to a section of a statute with a view to illustrating the law explained
in the provision.
• Such illustration manifest the intention of the legislature and can be referred in the case of
ambiguity or repugnancy.

• However, the court emphasis through various judgments that it doesn't explain the whole
principle explain in the section through illustration nor does it curtail the ambit of the
section.
• In the case of repugnancy between section and illustration, section will prevail.
• Example- Section 378 of theft in IPC has 16 illustrations attached to it.
Explanation
• The explanations are inserted with the purpose of explaining the meaning of a particular
provision and to remove doubts which might creep up if the explanation had not been
inserted.
• The purpose of explanations are to explain the meaning and intention of act, to clarify in
case of obscurity or vagueness and to provide additional support to the object of the act.

• However, it doesn't expand or curtail the meaning of the provision but only tries to remove
uncertainty and in the case of conflict between explanation and main section, the duty of the
court is to harmonize the two.
• Example- section 108 of IPC defines the word abettor' which has five explanation attach to it.
Definition or Interpretation Clause
• It define certain words used elsewhere in the body of statute with the purpose to avoid the necessity of
frequent repetitions in describing the subject matter and extend the natural meaning of some words as per the
statute. It also define intention of the legislature in respect of words mention in statute and avoid confusion.
• The rule of interpretation is that whenever the words means or means and include' are used in definition, it
makes the definition exhaustive and don't allow to interpret the definition widely but if the word includes' is
used in the definition it provide widest interpretation possible to the definition or enlarge the ordinary meaning
of the word.
• However, if the definition clause will result in an absurdity, the court will not apply such definitions and the
definition clause of one act can't be used to explain same word used in another statute except in the case of
statutes in pari materia.
• Mahalaxmi Oils Mils v. State of A.P, interpretation of word tobacco was in question which said tobacco means
any form of tobacco whether cured or uncured or manufactured or not and includes leaf stalks and steams of
tobacco plant. The SC held that the definition is exhaustive and refused to include tobacco seeds under the
definition of tobacco.
Punctuation
• Punctuation are put in the form of colon, semi colon, comma, full stop, dash, hyphen,
brackets etc.
• In earlier times statutes are passed without punctuations and therefore, the courts were not
concerned with looking at punctuations but in modern times statutes are passed with
punctuations.

• The rule of interpretation is that while interpreting the provision in punctuated form, if court
feels repugnancy or ambiguity the court shall read the whole provision without any
punctuation and if the meaning is clear will so interpret it without attaching any importance.
Schedules
• Schedule are the part of statutes which are mentioned at the end of the act.
• It contains details prescribe form of working out policies and contains subjects in the form of
lists.

• In the case of clash between schedule and the main body of an act, the main body shall
prevail.
• Example- Article 1 of the constitution provides that India shall be union of states and in
schedule 1 name of the states with its territories are mention.
Saving Clause
• Saving Clause are generally appended in cases of repeal and reenactment of a new statute.
It is inserted in the repealing statute.

• By this the rights already created under repealed enactment are not disturbed nor are new
rights created by it.

• In the case of clash between the main part of statute and a saving clause, the saving clause
has to be rejected.
Proviso
• The proviso to a section has the natural presumption that enacting part of the section would have
included the subject matter of the proviso.
• The proviso serve four different purposes- qualify or exempt certain provision, provide mandatory
condition to be fulfilled by to make enactment workable, act as optional addenda and become
integral part of the enactment.
• The rule of interpretation of proviso is that it can neither nullify the implication of main enactment
nor can enlarge the scope of main enactment and can only be referred in case of ambiguity in the
section.
• In case of conflict between main enactment and proviso, it must be harmoniously construct or in
the view of many jurist proviso will prevail as it is the last intention of the legislature.
• Example- Article 16(4) is considered as proviso of Article 16(1) held in T. Devadasan v. Union of
India.
Exception
• Exception are generally added to an enactment with the purpose of exempting something
which would otherwise fall within the ambit of the main provision.

• In case of repugnancy between exception and main enactment, the latter must be relied
upon. However, in many cases exceptions are relied being the last intention of legislature.

• Example: Section 300 of IPC has five exceptions attached to it.

 Unit - 5

CASE LAW
TECHNIQUES
 Case Law Techniques

• Precedent
• Doctrine of Stare Decisis
• Ratio Decidendi

Syllabus
• Obiter Dicta
• Factors affecting value of precedent
• Rules of interpretation of statutes
• Question of Law and Question of Fact
• Application of law to facts
 Precedent

• Precedent refers to a cour t decision that is considered as authority for

deciding subsequent cases involving identical or similar facts, or similar
legal issues.

• Precedent ensures that individuals in similar situations are treated alike

instead of based on a par ticular judge’s personal views.

• If the facts or issues of a case differ from those in a previous case, the
previous case cannot be precedent.

• Precedent is generally established by a series of decisions.

• Sometimes, a single decision can create precedent.

• Fo r e xam ple, a sin gle sta tu to r y in ter p re ta tion b y the hi g he st co ur t of a s tate i s ge ne rally
co n s i d e re d o r i g i nally p a r t o f th e s ta tu te .
 Precedent - Definitions

• According to Gray - Precedent covers everything said or done, which

furnishes a rule for subsequent practice.

• According to Salmond – In loose sense, it includes merely reported case

law which may be cited & followed by courts. In strict sense, that case
law which not only has a great binding authority but must also be
followed.

• According to Keeton – A judicial precedent is a judgment to which

authority has in some measure been attached.

• According to Bentham - ‘Judge made Law.’

• According to Austin – ‘Judiciary ’s Law.’

 Kinds of Authoritative Persuasive
Precedent Precedent
Precedents
 Theories of Precedent

1. Declaratory Theory:
• J u d g e s d o n o t m a ke l a w b u t o n l y d e cl a r e l a w.

• A cco r ding Bl ack s to ne, ju dge s a re s wo rn t o deter mine n ot a cco rdin g to th eir ow n p rivate
j u d g e me nt b u t a cco r d i ng t o th e k n o w n l a w a n d c u s t o m o f th e l a n d .

• Po we r t o m ake la w i s no t dele ga te d t o th em . The y have t o f i nd th e law, e xplai n it an d apply

i t t o g i ve n s i tu a tio n .

2. Authoritative Theory:
• C o u r ts d o m o r e th a n j u s t d e c l a r ing l a w.

• H enr y Main e p oin ts o ut the g ulf be tw ee n the arch ai c E n glis h C o mmo n law a nd s ocial
ne ce ssiti e s o f t h e p ro g re ss ive E ngli s h s o ci ety wa s b eing na rr owe d do wn by f orm ula ting,
e xte n d in g, m o d i fying a n d i m p r oving th e p r i n ci ples o f e q u i ty.
Article 141 of
Constitution Doctrine of
Stare Decisis
Ratio
Decidendi
Obiter Dicta

of India
 Doctrine of Stare Decisis

• Stare Decisis is a Latin term which signifies “To stand by decided cases or to

uphold precedents or to maintain former adjudications”.

• Decisions of higher court are binding on subordinate courts.

• The doctrine of Stare decisis; is not applicable in the Supreme Court, thus,

the Supreme Court is not bound by its own decisions, hence, it may depart

from its own previous rulings in extra ordinary or special cases or in larger

public interest.
 Doctrine of Stare Decisis – Case Law

• Sajjan Singh Vs. State of Rajasthan [AIR 1965, SC 845]:

• Su pr eme C o ur t s aid th at Co n sti tuti on d oe s n ot pla c e a ny r e striction o n o ur p owe r to r evie w

o u r e arlie r deci sio n o r even t o de par t fr om them a nd the re can be n o doubt in t h e m atter

r elati ng to de ci sio n of con s titutio nal poi nts w hich have si gnif i ca nt i mpa ct o n fu n dam en tal

r i g h ts w e co u l d b e p r e p a r ed t o r e v i e w o u r e a r l ie r d e ci s i on i n th e i n te r es t o f p u b l ic g o o d .

• Th e d o ctrin e o f s ta re de c i si s m ay no t stri ctly a p ply in thi s co nte xt a nd no o ne ca n di sp ute

the po si tion tha t the s aid d o ctrine sh o uld not be p e rmitted to pe r pet ua te e r ro neo u s

d e ci s io ns p r o n o u n ced b y t his co u r t t o th e d e tr i men t o f g e n e ra l w e l f a re .

 Ratio Decidendi
• Ratio Decidendi' is a Latin phrase meaning "the reason" or "the rationale for the
decision".
• Ratio-Decidendi' is the determining point which becomes the base for a
judgement.
• Ratio-Decidendi is an essential precedent requires to be followed by subordinate
cour ts in similar type of cases.
• An essential function of the Cour t to interpret legislation.
• The statements of the Cour t on matters other than law like facts may have no
binding force as the facts of two cases may not be similar.
• But what is binding is the ratio of the decision and not any f inding of facts.
• It is the principle found out upon a reading of a judgment as a whole, in the light
of the questions before the Cour t that forms the ratio and not any particular word
or sentence.
 Ratio Decidendi – Case Law
• Director of Settlements, Andhra Pradesh and Others Versus M.R. Apparao
and Another' [AIR 2002 SC 1598]:
• I t wa s ob s er ved b y the H on 'ble Sup re me C o ur t th at Ar ticle 1 4 1 of the C o n sti tuti on
u n eq uivo cally i ndi ca te s th at the law d e cla re d b y the Su p rem e Co ur t s h a ll b e bindin g on all
C o ur ts wi thin the te rri tor y o f Indi a . The afo re s aid Ar ticl e em po we r s t he Sup rem e Co ur t to
d e cl a r e t h e l a w.
• Dr. Shah Faesal and Others Versus Union Of India and another [(2020) 03 SC
CK 0001]:
• I n j u dge me nt p r on ou n ce d o n 02 - 03 - 20 20 by the Su pre me C our t, it wa s em ph a size d by th e
Ap e x C our t tha t it i s only th e pri n ciple lai d d o wn i n th e j ud gm en t tha t i s bi ndi ng la w un der
A r ticle 1 4 1 o f th e C o n s ti tutio n .
• State of Punjab and others versus Surinder Kumar and others [AIR 1992 SC
1593]:
• Th e Sup rem e C o ur t ob s er ve d that a de ci sio n i s availabl e a s a p re ce de nt o nly if it d e cid e s a
q ue sti on o f l a w.
 Wambaughs’s Test

• It is also called as Reversal test.

• He gave following instructions for this;
1. Frame carefully the supposed proposition of law
2. Insert in the proposition a word reversing its meaning
3. Inquire whether, if the court had conceived this new proposition to be good
and had it in mind, the decision could be the same.
4. If the answer is affirmative, the however excellent the Original proposition
may be, the case is not a precedent for that proposition.
5. But if the answer is negative, the case is a precedent for the original
proposition and possibly for other proposition also.
 Goodhart’s Test
• H e l a i d do w n fo l l o w i n g g u i d e l i n e s fo r d i s cove ri n g th e ra ti o de ci de n di o f th e ca s e :
1 . Ra tio d e cid endi mu s t n ot b e so u gh t in the re a so n s o f w hi ch the ju dg e h a s p a s se d the
d e ci s io n .
2 . Th e re a so n s gi ve n by the j ud ge a re o f p e culiar i mp or ta n ce, f or the y ma y f u rni sh u s w ith a
g ui d e f or d e te r m inin g w h i ch f a cts h e co n s i d er ed m a te r ial a nd w hi ch i m m a ter ial .
3 . A d e cisi on f or w hi ch no re a s o n s a re given do e s n ot nece s s arily la ck ra ti o, f ur ther mo re , th e
r ea s on s of fe re d by th e cou r t in re adi ng a d e cisi on mig ht be co n sid er ed in ad eq ua te or
in cor re ct, yet th e co ur ts ruli ng mig ht be e nd or s ed i n la te r ca se s - a b a d re a so n m ay o f te n
m a ke g o o d l a w. I t i s b y h i s ch o i ce .
4 . Th u s, ra tio de ci de ndi i s wh ateve r f a cts the j ud ge ha s d etermi ne d to be the materi al fa cts of
the ca s e, plu s th e ju dg e ’s de ci sio n b a sed o n th o se fa cts o f the m ateri al f a cts that th e ju dg e
cr e a te s l a w.
• G o o d har t test o f rat i o is : rat i o de ci den d i = m ate ria l f a cts + deci s i o n . G oo dh ar t s ta tes
t h a t " I t i s b y h i s ch o i ce o f m a t e ri a l f a ct s t h a t t h e j u d g e cr e a tes l a w. "
 • T he p hrase O b iter d i ct um ' h as been deri ved fro m La t i n
w ord s o b iter' a n d d i ct um '. Ob i ter me a ns i n p ass i n g ' a n d
D i ct u m d e n o tes s o me th i n g th a t i s s a i d’.
• In t he lega l p ar l a n ce the o b iter-d i ct u m ' con n o tes a
j u d ge 's ex press i o n of o pi n i o n uttered i n co ur t or g iv i n g
j u d geme nt , b u t n o t essen t i a l t o the de ci s i o n a n d therefore
w i t h o u t b i n d i n g a u t h o r i ty.
Obiter Dicta • T he o b ite r di ct u m m ay be termed as a ca s ua l rem ar k o f
t he co ur t w h i le de cid in g t he a ctu a l iss ues , w h i ch is
co n s i dered as beyon d t he am b i t o f the o pera t ive p ar t o f
t h e j u d g e m e n t.
• O b iter d i ct a may i n cl u de t he statemen ts a law yer tel ls the
j ur y i n a cri m i n a l case t o conv i n ce t he m o f h is cl i en t ’s
i n n o ce n ce , i n a d d i t i o n t o t h e f a ct s o f t h e ca s e .
 Factors affecting value of Precedent

• Abrogated decisions – A decision ceases to be binding if a statute or

statutory rule inconsistent with it is subsequently enacted, or if it is
reversed or overruled by a higher cour t.

• Same decision on appeal is reversed by the appellate court.

• Aff irmation and Reversal on a Different Ground – A decision is aff irmed or

reversed on appeal on a different point.

• Ignorance of Statute – A precedent is not binding if it was rendered in

ignorance of a statute or a rule having the force of statute i.e. delegated
legislation . A cour t may know of existence of the statute or rule and yet not
appreciate in the matter in hand. Such a mistake also vitiates the decision.
Even a lower court can refuse to follow a precedent on this ground.
 Factors affecting value of Precedent

• Inconsistency with Earlier Decision of Higher Court.

• Inconsistency with Earlier Decision of Same Rank.

• Precedent sub silentio or not fully argued – When a point is not involved
in a decision is not taken notice of and is not argued by a counsel, the
court may decide in favour of one party, whereas if all the points had
been put forth, the decision in favour of one party. Hence, such a rule is
not an authority on the point which had not been argued and this point is
said to pass sub silentio. Binding force of a precedent does not depend
on whether a particular argument was considered therein or not,
provided the point with reference to which an argument was
subsequently advanced was actually decided by the SC.
 • In t erp reta t i on :
• T h e t e r m h a s b e e n d e r i v e d f r o m t h e L a t i n t e r m ‘ i n t e r p r e t a r i ’, w h i c h
m e a n s t o e x p l a i n , e x p o u n d , u n d e r s t a n d , o r t o t ra n s l a t e .

• Interpret a t ion is t he pro cess of exp l a i n i n g , exp o u n d i n g

a n d t ra n s l a ti n g a ny t e x t o r a ny t h i n g i n w r i t ten fo r m .

Rules of • Interpret a t ion

r e a so n s :-
of S ta t utes is req u ired for two bas i c

1. Legislative Language – Legislative language may be complicated for a

Interpretation 2.
layman, and hence may require interpretation ; and
Legislative Intent – The intention of the legislature or Legislative
intent assimilates two aspects:
a ) t h e c o n c e p t o f ‘ m e a n i n g ’, i . e ., w h a t t h e w o r d m e a n s ; a n d
b) the concept of ‘purpose’ and ‘o b j e c t ’ or the ‘ r e a s o n’ or ‘s p i r i t ’
p e r va d i n g t h r o u g h t h e s t a t u t e .
Primary Rules
Literal Mischief Golden
of Rule Rule Rule

Interpretation
 Literal Rule
• The words used in this text are to be given or interpreted in their natural or
ordinary meaning .
• Af ter the interpretation, if the meaning is completely clear and unambiguous
then the effect shall be given to a provision of a statute regardless of what
may be the consequences.
• The basic rule is that whatever the intention legislature had while making
any provision it has been expressed through words and thus, are to be
interpreted according to the rules of grammar.
• It is the safest rule of interpretation of statutes because the intention of the
legislature is deduced from the words and the language used.
• The only duty of the cour t is to give effect if the language of the statute is
plain and has no business to look into the consequences which might arise.
• The only obligation of the cour t is to expound the law as it is and if any
harsh consequences arise then the remedy for it shall be sought and looked
out by the legislature.
 Literal Rule – Case Law

• Maqbool Hussain v. State of Bombay,

• In this case, the appellant, a citizen of India af ter arriving at the airport did
not declare that he was carrying gold with him. During his search was carried
on, gold was found in his possession as it was against the notification of the
government and was confiscated under section 167(8) of Sea Customs Act.
• Later on, he was also charged under section 8 of the Foreign Exchange
Regulations Act, 1947. The appellant challenged this trial to be violative
under Article 20(2) of the Indian Constitution . According to this article, no
person shall be punished or prosecuted more than once for the same offence.
This is considered as double jeopardy.
• It was held by the court that the Seas Act neither a court nor any judicial
tribunal. Thus, accordingly, he was not prosecuted earlier. Hence, his trial was
held to be valid.
 Literal Rule – Case Law

• State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1)

317,
• In this case a person was caught along with the counterfeit currency “dollars” and
he was charged under section 120B, 498A, 498C and 420 read with section 511
and 34 of Indian Penal Code for possessing counterfeit currency.

• The accused contended before the cour t that a charge under section 498A and
498B of Indian Penal Code can only be levied in the case of counterfeiting of
Indian currency notes and not in the case of counterfeiting of foreign currency
notes.

• The cour t held that the word currency notes or bank note cannot be pref ixed. The
person was held liable to be charge-sheeted.
 Mischief Rule
• Rule to determine the mischief and defect and to give ruling to implement
the effective remedy.
• It is the rule of purposive construction because the purpose of the statute is
most impor tant while applying this rule.
• It is known as Heydon’s rule because it was given by Lord Poke in Heydon’s
case in 1584. It is called as mischief rule because the focus is on curing the
mischief.
• In the Heydon’s case, it was held that there are four things which have to be
followed for true and sure interpretation of all the statutes in general, which
are as follows-
1 . W h a t wa s th e co m m o n l a w b e f o r e th e m a k i ng o f a n a ct .
2 . W h a t wa s th e m i s ch ie f f o r w h i ch th e p r e s e n t s ta tu te wa s e n a cte d .
3 . W ha t r eme dy di d th e Parlia me nt so ug ht o r h ad re solved an d ap poin te d to cur e the dis ea s e
o f t h e co m m o n w ealth .
4 . Th e tr u e r e a s o n o f th e r e m e d y.
• The purpose of this rule is to suppress the mischief and advance the remedy.
 Mischief Rule – Case Law
• Smith v. Huges, 1960 WLR 830:
• In this case around the 1960 s, the prostitutes were soliciting in the streets of
London and it was creating a huge problem in London. This was causing a great
problem in maintaining law and order.
• To prevent this problem, Street Offences Act, 1959 was enacted. Af ter the
enactment of this act, the prostitutes started soliciting from windows and
balconies.
• Fur ther, the prostitutes who were carrying on to solicit from the streets and
balconies were charged under section 1(1) of the said Act. But the prostitutes
pleaded that they were not solicited from the streets.
• The cour t held that although they were not soliciting from the streets yet the
mischief rule must be applied to prevent the soliciting by prostitutes and shall look
into this issue. Thus, by applying this rule, the court held that the windows and
balconies were taken to be an extension of the word street and charge sheet was
held to be correct.
 Mischief Rule – Case Law

• Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

• Section 418 of Delhi Corporation Act, 1902 authorised the corporation to round up
the cattle grazing on the government land.

• The MCD rounded up the cattle belonging to Kanwar Singh. The words used in the
statute authorised the corporation to round up the abandoned cattle.

• It was contended by Kanwar Singh that the word abandoned means the loss of
ownership and those cattle which were round up belonged to him and hence, was
not abandoned.

• The cour t held that the mischief rule had to be applied and the word abandoned
must be interpreted to mean let loose or lef t unattended and even the temporary
loss of ownership would be covered as abandoned.
 Golden Rule

• It is known as the golden rule because it solves all the problems of

interpretation .
• The rule says that to star t with we shall go by the literal rule, however, if the
interpretation given through the literal rule leads to some or any kind of
ambiguity, injustice, inconvenience, hardship, inequity, then in all such
events the literal meaning shall be discarded, and interpretation shall be
done in such a manner that the purpose of the legislation is fulf illed .
• This rule suggests that the consequences and effects of interpretation
deserve a lot more impor tant because they are the clues of the true meaning
of the words used by the legislature and its intention .
• At times, while applying this rule, the interpretation done may entirely be
opposite of the literal rule, but it shall be justif ied because of the golden
rule.
• The presumption here is that the legislature does not intend certain objects.
Thus, any such interpretation which leads to unintended objects shall be
rejected.
 Golden Rule – Case Law
• State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967
SC 276:
• A transpor ting company was carr ying a parcel of apples was challenged and
charge-sheeted. The truck of the transpor ting company was impounded as the
parcel contained opium along with the apples. At the same time, the invoice shown
for the transport consisted of apples only.
• Section 11 of the opium act 1878, all the vehicles which transport the contraband
ar ticles shall be impounded and ar ticles shall be conf iscated. It was contended by
the transpor t company that they were unaware of the fact that opium was loaded
along with the apples in the truck.
• The cour t held that although the words contained in section 11 of the said act
provided that the vehicle shall be conf iscated but by applying the literal rule of
interpretation for this provision it is leading to injustice and inequity and
therefore, this interpretation shall be avoided. The words ‘shall be conf iscated’
should be interpreted as ‘may be conf iscated’.
 Golden Rule – Case Law
• Tirath Singh v. Bachittar Singh, AIR 1955 SC 850:
• In this case, there was an issue with regard to issuing of the notice under
section 99 of Representation of People’s Act, 1951, with regard to corrupt
practices involved in the election.
• According to the rule, the notice shall be issued to all those persons who are a
party to the election petition and at the same time to those who are not a
party to it. Tirath Singh contended that no such notice was issued to him
under the said provision. The notices were only issued to those who were non-
parties to the election petition. This was challenged to be invalid on this
particular ground.
• The court held that what is contemplated is giving of the information and the
information even if it is given twice remains the same. The party to the
petition is already having the notice regarding the petition, therefore, section
99 shall be so interpreted by applying the golden rule that notice is required
against non-parties only.
 Internal Aids to Interpretation

• Title - Short and Long Title

• Preamble
• Marginal Notes
• Provisos
• Headings
• Explanations
• Exceptions and Saving Clauses
• Illustrations
• Def initions
• Schedules
• Punctuations
 External Aids to Interpretation

• Dictionaries

• Statement of Object and Reasons

• Parliamentary History and Facts

• Repor ts

• Parliamentar y Debates

• Bills

• Text Books

• Foreign Decisions
 Answered by applying relevant legal
principles,
Question of Law Dependent on interpretation of the
law

Answered by reference to facts and

Questions which arise evidence, and inferences.
for consideration and Question of Fact dependent on circumstances or
determination in court factual situations.

Decision of the court: what is just?

Question of Discretion Subjects of reasoning and argument.
Decision on quantum of punishment.
© Tanmay J. Patil, Assistant Professor of Law, KLE Society’s Law College, Bengaluru

QUESTION OF LAW
❖ According to Salmond, the term question of law is used in three distinct, thought related senses:
I. Questions authoritatively answered by law:
❖ In first sense, it means a question, which the Court is bound to answer in accordance
with a rule of law. All other questions are questions of fact. It excludes the right of the
Court to answer the question as he thinks fit.
II. Interpretation of statutory provision:
❖ In the second sense, it means a question as to what the law is on a particular point. This
arises in cases where a rule of law is ambiguous and requires determination.
❖ Once the provision has been authoritatively interpreted by the judge, it becomes a
judicial precedent and a settled question of law.
III. Questions to be answered by judges:
❖ In the third sense, all question whose answers given by the judges and not the jury are
questions of law.
© Tanmay J. Patil, Assistant Professor of Law, KLE Society’s Law College, Bengaluru

QUESTION OF FACT
❖ The term question of fact is used in two different senses:
I. Wider Sense:
❖ In a Wider or general sense, all questions which are not questions of law are questions
of fact.
II. Narrow Sense:
❖ In a narrow sense, question of fact means only those questions which are not subject to
judicial discretion.
❖ According to Salmond:
❖ A question of fact means any question
I. Which is not previously determined by a rule of law.
II. Other than question as to what the law is.
III. Which is to be answered by the jury and not by the judge.
© Tanmay J. Patil, Assistant Professor of Law, KLE Society’s Law College, Bengaluru

QUESTION OF DISCRETION

❖ The power or right to make official decisions using reason and judgment.

❖ The power to choose from among acceptable alternatives.

❖ The Power of a court to act or not to act, as it deems fair under the circumstances, and as provided

under the rules of law.

❖ It refers to the inherent powers of the judge to pass a judgment without interference of the rules

laid in the statues or law books.

 Example
Question of Fact Question of Law

Did Mr. and Mrs. Jones Does leaving a baby with a

leave their 10-year-old 10-year old child for 4 days
child home alone with their fit the legal definition of
Question of Discretion
baby for 4 days? child neglect?

Since baby was left with

10-year old child for 4
days, can it be considered
as child neglect?