Programme : MBL I, PGDs

Course : Introduction to Law and Legal Systems

Module : 2. Our Legal System

Module/ Unit 3:
Working With Rules

First Published : March 2021

Prepared by : Bhavin Patel

First Revised : April 2022, by Bhavin Patel

Second Revision : March 2023, by Ishika Saxena and Bhavin Patel
Prepared by : Bhavin Patel

© National Law School of India University

Published by : Professional and Continuing Education

National Law School of India University
Nagarbhavi, Bengaluru – 560 072,
Karnataka, India.
[Link]

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3.1 Introduction: Making Sense of Rules 3

3.2 The Need for Interpretation 4

Questions for Reflection 1 6
Quiz 1 10
Quiz 2 11
Questions for Discussion 1 13
Questions for Reflection 1 16

3.3 The Form and Structure of Rules 18

Quiz 3 21
Quiz 4 29

3.4 Reading Legislation 30

Self-Assessment Questions 3 30
Exercise 1 42

3.5 Reading Cases 43

Questions for Reflection 2 45
Exercise 2 49
Exercise 3 53
Self-Assessment Questions 1 54

3.6 Key Take-Aways 58

3.7 Further Readings and Resources 59

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3.1 Introduction: Making Sense of Rules
Now that we have discussed what the terms ‘rule’, ‘law’ and ‘legal system’ mean, we will
try and understand how to work with rules. As we do this, it is important to remember
that laws do not work in isolation - you would recall from our class discussions that laws
are part of a legal system, and as such, the general rules that apply to a legal system
would also apply to each law that forms a part of that legal system.

That said, there are some basic methods of logical analysis and thinking that we can use
to understand and apply most laws. Bear in mind that laws are published using language
(that is to say, they are (mostly) written down somewhere, as textual materials); and so,
many of the same methods that we can use to understand and analyse any form of
textual materials can also be applied in the context of laws.

With this in mind, we will now:

● Examine why the interpretation of rules is necessary;

● Look at the form and structure of rules;
● Understand the various parts of legislation; and
● Learn how to read cases, or judgments of courts.

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3.2 The Need for Interpretation
Statutes may be created by legislators, but they are drafted by specialist draftspersons,
who work with and for the legislature. Presumably, these draftspersons are well-qualified
and highly trained - in fact, the Institute of Legislative Drafting and Research was
established as a wing of the Legislative Department, Ministry of Law and Justice, in
January 1989 in order to impart training in this specialised skill to draftspersons from
across the country.

If draftspersons are so well-qualified and trained, why would there be a need for
interpretation? After all, draftspersons should be able to express themselves clearly and
thoroughly, leaving no room for doubt!

Criticisms such as those in the previous paragraph however, do not take into account
several factors that lead to the need for interpretation. Let’s try and look at some of
these. Read the extract below:

Humpty Dumpty took the book, and looked at it carefully. ‘That seems to
be done right—’ he began.

‘You’re holding it upside down!’ Alice interrupted.

‘To be sure I was!’ Humpty Dumpty said gaily, as she turned it round for
him. ‘I thought it looked a little queer. As I was saying, that seems to be
done right—though I haven’t time to look it over thoroughly just
now—and that shows that there are three hundred and sixty-four days
when you might get un-birthday presents—’

‘Certainly,’ said Alice.

‘And only one for birthday presents, you know. There’s glory for you!’

‘I don’t know what you mean by “glory,”’ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t—till I tell

you. I meant “there’s a nice knock-down argument for you!”’

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‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice objected.

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it
means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many
different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’

Alice was too much puzzled to say anything, so after a minute Humpty
Dumpty began again. ‘They’ve a temper, some of them—particularly
verbs, they’re the proudest—adjectives you can do anything with, but not
verbs—however, I can manage the whole lot of them! Impenetrability!
That’s what I say!’

‘Would you tell me, please,’ said Alice ‘what that means?’

‘Now you talk like a reasonable child,’ said Humpty Dumpty, looking very
much pleased. ‘I meant by “impenetrability” that we’ve had enough of that
subject, and it would be just as well if you’d mention what you mean to do
next, as I suppose you don’t mean to stop here all the rest of your life.’

‘That’s a great deal to make one word mean,’ Alice said in a thoughtful
tone.

‘When I make a word do a lot of work like that,’ said Humpty Dumpty, ‘I
always pay it extra.’

‘Oh!’ said Alice. She was too much puzzled to make any other remark.

‘Ah, you should see ‘em come round me of a Saturday night,’ Humpty
Dumpty went on, wagging his head gravely from side to side: ‘for to get
their wages, you know.’

(Alice didn’t venture to ask what he paid them with; and so you see I can’t
tell you.)

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 - Charles Dodgson, A.K.A. Lewis Caroll1

Questions for Reflection 1

● Some words can have more than one meaning; can a legislative draftsperson lay
down a rule that a word shall have only one of such meanings? How do you think
this can be done?
● Can, or should, a legislative draftsperson give a word a ‘special’ meaning, which it
does not otherwise have?
● When a legislation uses a word that can have several meanings, how do we, as
Humpty Dumpty says, decide “which is to be master”?
● It would obviously create a lot of difficulties for us if legislative draftspersons
behaved like Humpty Dumpty, who, when he uses a word, wants it to mean
“...just what I choose it to mean—neither more nor less”. What attributes of
Humpty Dumpty from the passage above do you think are not good qualities to
have in a legislative draftsperson? For example, it would not be desirable for a
legislative draftsperson to give a word any meaning they like, and not tell us what
that meaning is.

Now, read the following extract from William Shakespeare’s play, The Merchant of
Venice:

PORTIA: Do you confess the bond?

ANTONIO: I do.

PORTIA: Then must the Jew be merciful.

SHYLOCK: On what compulsion must I? Tell me that.

1
Carroll, L., Through the Looking-Glass, Project Gutenberg, available at:
[Link]

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 …

SHYLOCK: My deeds upon my head! I crave the law,

The penalty and forfeit of my bond.

PORTIA: Is he not able to discharge the money?

BASSANIO: Yes, here I tender it for him in the court;

Yea, twice the sum: if that will not suffice,
I will be bound to pay it ten times o'er,
On forfeit of my hands, my head, my heart:
If this will not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.

PORTIA: It must not be; there is no power in Venice

Can alter a decree established:
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state: it cannot be.

SHYLOCK: A Daniel come to judgment! yea, a Daniel!

O wise young judge, how I do honour thee!

PORTIA: I pray you, let me look upon the bond.

SHYLOCK: Here 'tis, most reverend doctor, here it is.

...

PORTIA: Why, this bond is forfeit;

And lawfully by this the Jew may claim
A pound of flesh, to be by him cut off
Nearest the merchant's heart. Be merciful:
Take thrice thy money; bid me tear the bond.

SHYLOCK: When it is paid according to the tenor.

It doth appear you are a worthy judge;
You know the law, your exposition

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 Hath been most sound: I charge you by the law,
Whereof you are a well-deserving pillar,
Proceed to judgment: by my soul I swear
There is no power in the tongue of man
To alter me: I stay here on my bond.

ANTONIO: Most heartily I do beseech the court

To give the judgment.

PORTIA: Why then, thus it is:

You must prepare your bosom for his knife.

SHYLOCK: O noble judge! O excellent young man!

PORTIA: For the intent and purpose of the law

Hath full relation to the penalty,
Which here appeareth due upon the bond.

SHYLOCK: 'Tis very true: O wise and upright judge!

How much more elder art thou than thy looks!

PORTIA: Therefore lay bare your bosom.

SHYLOCK: Ay, his breast:

So says the bond: doth it not, noble judge?
'Nearest his heart:' those are the very words.

PORTIA: It is so. Are there balance here to weigh

The flesh?

SHYLOCK: I have them ready.

PORTIA: Have by some surgeon, Shylock, on your charge,

To stop his wounds, lest he do bleed to death.

SHYLOCK: Is it so nominated in the bond?

PORTIA: It is not so express'd: but what of that?

'Twere good you do so much for charity.

SHYLOCK: I cannot find it; 'tis not in the bond.

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 ...

PORTIA: A pound of that same merchant's flesh is thine:

The court awards it, and the law doth give it.

SHYLOCK: Most rightful judge!

PORTIA: And you must cut this flesh from off his breast:
The law allows it, and the court awards it.

SHYLOCK: Most learned judge! A sentence! Come, prepare!

PORTIA: Tarry a little; there is something else.

This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh:'
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.

GRATIANO: O upright judge! Mark, Jew: O learned judge!

SHYLOCK: Is that the law?

PORTIA: Thyself shalt see the act:

For, as thou urgest justice, be assured
Thou shalt have justice, more than thou desirest.

- William Shakespeare, The Merchant of Venice, Act IV, Scene 12

2
Shakespeare, W., The Merchant of Venice, The Complete Works of William Shakespeare, The
Tech, MIT, [Link]

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Quiz 1

1. In the passage above, are there any ambiguities or doubts about what the words
in the bond or the laws of Venice mean?
2. Assuming the legal system of Venice at the time that the play is set in provides
that bonds and laws must be strictly interpreted (that is, their plain language
must be applied as it appears), what consequences would arise if (a) the bond
were enforced, and (b) the laws of Venice relating to Jews who shed a Christian’s
blood were strictly applied?
3. Do you think the consequences you identified in the previous question are fair
and acceptable in the context of the transaction between Antonio and Shylock?
4. What arguments does Portia use to convince Shylock not to enforce the bond?
Which of these arguments were based on the language of the bond, and which
were based on other factors?

Perhaps it is now apparent that even when the language of a statute is clear or
unambiguous, the outcome of applying it strictly may cause absurd results.

Let’s now look at the famous example of ‘The Case of the Legalistic Child’:

Johnny, aged 7, is an only child. In recent months his mother has been
mildly worried because he has developed a craving for sweet things and
this has affected his appetite at meal times. She has commented to her
husband, a practising lawyer, that Johnny ‘seems to be developing a sweet
tooth’, and that ‘he has been eating too much between meals’, but until
now she has done nothing about the problem. Then one afternoon she
finds that Johnny has gone into the larder and helped himself to half a pot
of strawberry jam. Bearing in mind her husband’s insistence that
discipline in the family should operate in accordance with ‘the rule of law’,
she does not punish Johnny on this occasion. Instead she says: ‘That’s
naughty. In future you are never to enter the larder without my
permission.’ ‘What does enter mean, Mummy?’ asks Johnny. ‘To go into’,
says his mother. ‘OK’, says Johnny, relieved that he has got off so lightly.

Four incidents then follow in quick succession.

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 First, Johnny gets a broom and hooks out the pot of jam from the larder
and helps himself. ‘I didn’t enter the larder’, he says.

Next, the cat enters the larder and attacks the salmon which mother has
bought for a special meal to celebrate father’s birthday. Mother, upstairs,
hears Johnny hooting with laughter. She comes down to see him standing
outside the larder door watching the cat eat the fish. ‘I may not go into the
larder’, he says.

The following day, at 5 p.m., another pot of strawberry jam is found in the
larder - empty. It was half-full at lunchtime. Johnny, who was playing on
his own downstairs for much of the afternoon, denies all knowledge of the
matter. There is no other evidence.

Finally, without any attempt at concealment, Johnny enters the larder,

eats another pot of jam, and deliberately knocks down a pile of cans. ‘It’s
as if he were asking to be punished’, sighs Mother.

- William Twining and David Miers3

Quiz 2

1. According to Mother’s rule, when is Johnny permitted to enter the larder?

2. In each of the ‘four incidents’ described in the passage above, has Johnny broken
the rule about entering the larder that Mother established?
3. In which of the four incidents in the passage above does a strict application of
Mother’s rule (a) provide a plausible and reasonable result, (b) provide no result,
or an unclear answer, and (c) provide an absurd result?
4. What do you think were Mother’s reasons for establishing the rule about Johnny
entering the larder? Do you think Johnny understood these reasons?

Recall our earlier discussion on rules and rationale; based on your responses to the
questions above, it should now be clear that in some of the four incidents, the rule may

3
Twining, W., and Miers, D., How to Do Things with Rules: A Primer of Interpretation, 5th ed.,
Cambridge University Press, 2010, p. 14.

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have been followed, but the reason for which Mother established the rule may have been
defeated, or ignored completely. As an example, think of the second incident, involving
the cat and the salmon - Johnny may have followed the letter of the rule that Mother
established, but its spirit was not served by Johnny standing outside the larder and
laughing at the sight of the cat eating the salmon.

We can agree now that sometimes, legislative language provides simple and plausible
answers to questions about their application; however, it may sometimes provide an
unclear answer, or give us no result at all, and sometimes, the answers provided may
lead to an absurd result, such as in The Merchant of Venice, where a strict application of
the language of the bond would have led to Antonio’s death - a decidedly absurd
outcome, given that the context was the repayment of a monetary debt.

Professor Hart seems to agree with this analysis, and presents two reasons why this is so:

Whichever device, precedent or legislation, is chosen for the

communication of standards of behaviour, these, however smoothly they
work over the great mass of ordinary cases, will, at some point where their
application is in question, prove indeterminate; they will have what has
been termed an open texture. So far we have presented this, in the case of
legislation, as a general feature of human language; uncertainty at the
borderline is the price to be paid for the use of general classifying terms in
any form of communication concerning matters of fact. Natural languages
like English are when so used irreducibly open textured. It is, however,
important to appreciate why, apart from this dependence on language as
it is actually is, with its characteristics of open texture, we should not
cherish, even as an ideal, the conception of a rule so detailed that the
question whether it applied or not to a particular case was always settled
in advance, and never involved, at the point of actual application, a fresh
choice between open alternatives. Put shortly, the reason is that the
necessity for such choice is thrust upon us because we are men, not gods.
It is a feature of the human predicament (and so of the legislative one)
that we labour under two connected handicaps whenever we seek to
regulate, unambiguously and in advance, some sphere of conduct by
means of general standards to be used without further official direction on
particular occasions. The first handicap is our relative ignorance of fact:
the second is our relative indeterminacy of aim. If the world in which we
live were characterised only by a finite number of features, and these

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 together with all the modes in which they combine were known to us, the
provision could be made in advance for every possibility. We could make
rules, the application of which to particular cases never called for a further
choice. Everything could be known, and for everything, since it could be
known, something could be done and specified in advance by rule. This
would be a world fit for ‘mechanical’ jurisprudence.

- H.L.A. Hart4

Questions for Discussion 1

1. What are the ‘two handicaps’ that Professor Hart identifies that we labour under
when drafting legislation?
2. What do you think Professor Hart means when he says we have a ‘relative
ignorance of fact’ when drafting legislation? What do you think he means when
he says we also have a ‘relative indeterminacy of aim’?
3. Why do you think Professor Hart says making rules, “...the application of which
to particular cases never called for a further choice” would happen in a world fit
for ‘mechanical’ jurisprudence? What do you think the term ‘mechanical’
jurisprudence means?
4. What challenges do you think a legislative draftsperson may be faced with in
drafting laws for the future?
5. Do you think that it would be acceptable to have a system of drafting laws in
which there is no doubt, and no room for interpretation? What dangers might
such a system present?

Professor Fuller seems to have even less faith in the ability of legislative materials to
stand the test of time and varying facts; you may recall our discussion on Hart’s example
of the park where vehicles were forbidden from entering - see Fuller’s response to Hart’s
example below:

4
Hart, H.L.A., The Concept of Law, 2nd Ed., pp. 127-128.

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Returning to Hart’s own formulation of the shape and attributes of a legal
rule, we can now examine Fuller’s challenge to Hart’s picture. This
challenge was not about what a judge was to do in the penumbra. Fuller
took little issue with the need for judges to look elsewhere when the words
were unclear, although where Hart saw judges exercising quasi-legislative
discretion, Fuller would have had judges look for the purpose behind the
statute. Still, the disagreements between the two about what judges
should do in the penumbra of linguistic uncertainty were relatively minor.
More serious were the disagreements about what Hart labeled the core of
settled meaning, for here Fuller argued that Hart was mistaken about the
idea of a core settled meaning itself. In response to Hart’s assertion that
automobiles were plainly within the rule’s core, Fuller asked us to
consider what should happen if “some local patriots wanted to mount on a
pedestal in the park a truck [in perfect working order] used in World War
II, while other citizens, regarding the proposed memorial as an eyesore,
support their stand by the ‘no vehicle’ rule?” The truck would initially
seem clearly to be a vehicle, Fuller argued, but for him it would just as
clearly be absurd to exclude it from the park for that reason. And so,
Fuller insisted, the words of a legal rule could not by themselves ever
present a plain case for a legal rule’s application.

Fuller’s hypothetical war memorial is part of a long line of cases, some

hypothetical and some real, demonstrating that for any legal rule, the
possibility will always exist that applying the plain meaning of the rule’s
words will produce a result at odds with what the rule was designed to
accomplish, or even at odds with simple common sense. In the same
article in which he offered the example of the truck used as a war
memorial, Fuller also provided the example of a rule prohibiting sleeping
in a railway station. The rule would plainly have been designed to exclude
a homeless person… but Fuller asked whether the rule would apply to a
tired businessman who missed his train and nodded off in the station
while waiting for the next one. Such an application would be ridiculous,
Fuller argued, by way of reinforcing his point that the words of a rule
could never, by themselves and without reference to the rule’s purpose,
determine even a core of so-called settled meaning. To the same effect was
Samuel von Pufendorf’s example of the seventeenth-century decision in
which a statute of Bologna prohibiting “letting blood in the streets,”
presumably designed to prohibit dueling, was held not to apply to a
surgeon performing emergency surgery. And recall… United States v.
Kirby, [74 U.S. (7 Wall.) 482 (1868)] in which the Supreme Court refused
to permit the prosecution under a statute prohibiting obstructing the mail

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of a sheriff who had arrested a mail carrier on a charge of murder, as one
further example of the frequency with which the complexities of the world
frustrate the effort of statutory language to anticipate them.

Fuller’s misguided foray into the philosophy of language, ironically,

detracted from rather than supported his highly valuable central point.
The war memorial made out of a functioning military truck really was a
vehicle, just as the tired businessman really was sleeping in the station,
and just as the sheriff in Kirby really did obstruct the delivery of mail.
What these and countless other examples, both real and hypothetical,
show is that the application of the literal language of a rule will now and
then produce an outcome that is silly, inefficient, or in some other way
decidedly suboptimal. It was Fuller’s point that language could not, Hart’s
example notwithstanding, ever be sufficient to produce a core or clear
case, because in at least some instances the clear application of clear
language would nonetheless produce an absurd result. Only by always
considering the purpose behind the rule, Fuller believed, could we make
sense of legal rules and indeed of the law itself.

There is no need (yet) to resolve the debate between Hart and Fuller, for
one of the valuable features of how the debate was framed is in providing
a useful framework for considering larger questions of statutory
interpretation. At the heart of the framework is a distinction among three
types of cases. There are the cases in which the statutory language itself
provides a plausible answer, those in which the language does not provide
an answer, and those in which the language provides a bad answer - an
answer that may clash with the legislative intent, with the purpose of the
statute, or with some more general sense of the right result. When the
language itself provides a plausible answer - the first category - that is
typically the end of the matter. If the words of the law provide a sensible
solution to a problem or a dispute, even if not the only sensible answer, it
is rare for the literal meaning of the words not to determine the legal
outcome. Indeed, such cases are unlikely to be disputed, and, if disputed,
unlikely to be litigated, and, if litigated, unlikely to be appealed. Lawyers
often talk of hard cases, but there are many easy cases as well. When the
language of a statute is clear and produces a sensible result, we have an
easy case of statutory construction. In such cases, the sensible resolution
provided by the words of the statute alone will normally be dispositive.

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 Once we move beyond the easy cases, however, the matter becomes less
tractable, for at this point we encounter hard cases of two different
varieties. One type of hard case arises out of linguistic indeterminacy. The
words of the statute do not provide a determinate answer to the dispute
before the court, either because the language is vague, as with “equal
protection of the laws,” “reasonable efforts,” and “undue delay,” or
because language that is determinate for other applications is
indeterminate with respect to the matter at issue, as with the question
whether bicycles or baby carriages or skateboards are vehicles that should
be kept out of the park. But there is another type of hard case, and this
type is not a function of linguistic indeterminacy at all. Rather, it is the
hard case that is hard just because a linguistically determinate result - the
war memorial constructed from a vehicle, the obstruction of the mail
caused by the legitimate arrest of a mail carrier in Kirby… can plausibly
be argued not to be the best, or even a very good, legal outcome. There are
hard cases, but not because the language gives no answer. They are hard
precisely because the language gives an answer.

- Frederic Schauer5

Questions for Reflection 1

1. What differences did Fuller have with Hart in relation to what judges are to do in
the ‘penumbra’ and what Hart called ‘the core of settled meaning’?
2. How did Fuller propose judges could determine even the ‘core of settled meaning’
of legislative language?
3. What are the two types of ‘hard cases’ that the authors of the passage above
identify?
4. Would you agree with either Hart or Fuller (or perhaps both) in their arguments
for why legislative language may lead to a need for interpretation? Why?

Rules can often be difficult to understand and apply in new fact situations, and, as we
have seen, there could be more than one situation that requires the interpretation and
application of rules. There are differences of opinion even in this matter - while someone

5
Schauer, F., Thinking Like a Lawyer: A New Introduction to Legal Reasoning, Universal Law
Publishing Co. Pvt. Ltd., Delhi, 2010, pp. 154-157.

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like Hart may suggest that rules have a ‘core of settled meaning’ where no interpretation
is required, someone like Fuller would disagree, and argue that there is no such ‘core’
which does not require interpretation.

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3.3 The Form and Structure of Rules
Several specialised rules of statutory interpretation have been developed over the years,
and these are applied by judges where the plain language of the statute is unclear, or
provides an absurd result. We are not going to examine those specialised rules at this
time, but suffice to say that often, where the language of a statute appears to be clear and
unambiguous, and where such language does not provide an absurd result, our job will
involve identifying what the meaning of that plain language might be.

Let us now try and understand how we can determine this meaning. Where the rule is
short, uncomplicated, and has no exceptions, carve-outs, or complex conditions, this is
usually a straightforward exercise. However, where the rule is complex or lengthy, it is
useful to break it down into parts.

How do we do this? What parts are rules made of, and how do we identify them? There
could be many different ways of classifying rule and breaking them up into parts, and the
method described in the following extract is an easy and effective way of doing so:

One further point needs to be made about the logical structure of rules.
For our purposes any rule, however expressed, or even if it has not been
expressed, can be analysed and restated as a compound conditional
statement of the form ‘If X, then Y’. The first part, ‘if X’, which is known as
the protasis, describes a type of situation - it indicates the scope of the
rule by designating the conditions under which the rule applies. The
second part, ‘then Y’, known as the apodosis, is prescriptive - it states
whether the type of behaviour governed by the rule is prohibited (‘may
not’, ‘ought not’), required (‘ought or ‘must’), permitted (‘may’), and so on.

- William Twining and David Miers6

6
Twining, W., and Miers, D., How to Do Things with Rules: A Primer of Interpretation, 5th ed.,
Cambridge University Press, 2010, p. 90.

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Twining and Miers seem to suggest that any rule can be broken up into two parts: an ‘If’
part, and a ‘Then’ part. The ‘If’ part provides a condition, and the ‘Then’ part provides the
consequences of that condition being met (or remaining unfulfilled). If we apply this
method to the rules we have recently discussed, we might get break-ups such as the
following:

Apodosis/ Consequence (THEN

Protasis/ Condition (IF part of
part of rule)
rule)

IF Johnny enters the larder without ...THEN Johnny is in breach of a duty

permission from Mother... (not to enter)

...THEN Shylock may cut off a pound

IF Antonio does not repay the bond...
of his flesh

IF Shylock spills a drop of Antonio’s ...THEN Shylock’s land and goods are
blood... confiscate

Consider that there may be another category of rules, which do not hinge upon a
condition and its consequences, but which merely declare something. For example:

● The park closes at 7 p.m. every day.

● All Indian citizens above the age of 18 may vote in elections.
● Drivers must drive on the left side of the road in India.
● Government notices may only be replied to by registered post or email.

Such rules can be considered as being ‘declarative’ in nature, that is, they seem to merely
declare something without condition, as opposed to the conditional rules we have
discussed; however, this distinction is not very important for our purposes - we can even
break seemingly declarative rules down into conditions and consequences, as shown in
the table below:

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 Apodosis/ Consequence (THEN
Protasis/ Condition (IF part of
part of rule)
rule)

...THEN the park must be closed

IF it is 7 p.m….
OR
OR
...THEN there is breach of duty (to
IF the park is not closed at 7 p.m….
close the park)

IF you are an Indian citizen

AND ...THEN you may vote in elections

IF you are above 18 years of age...

IF you drive on the right side of the ...THEN you are in breach of traffic
road in India... rules

IF you do not reply to a government

notice by registered post
THEN your response is invalid
OR

Email...

You would notice that we have added two more useful words to our toolkit for
interpreting rules: in addition to ‘If’ and ‘Then’, we have also used the words ‘And’ and
‘Or’. We will call these two additional words, that is, ‘And’ and ‘Or’, ‘operators’. Operators
help us string together a sequence of conditions and consequences, which is helpful in
trying to interpret complex or lengthy rules.

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So far, so good - we now know how to break down complex rules into simpler parts using
‘If’, ‘Then’, ‘And’, and ‘Or’. But how are we to apply these parts to find a result for a fact
situation we may be faced with?

This requires taking one additional step: simply convert each of the steps in the sequence
you created using ‘If’, ‘Then’, ‘And’, and ‘Or’, into a series of decisions, each of which can
have only two possible outcomes. For example:

1. Has Johnny entered the larder?

2. If the answer to (1) is ‘Yes’, then ask: Did he do so without Mother’s permission?
3. If the answer to both, (1) and (2) is ‘Yes’, then Johnny is in breach of duty. Else,
he is not in breach of duty.

Similarly:

1. Are you an Indian citizen?

2. If the answer to (1) is ‘Yes’, then ask: Are you above 18 years of age?
3. If the answer to both, (1) and (2) is ‘Yes’, then you may vote in elections. Else,
you may not vote in elections.

As you may have guessed, the more complex the rule, the more the number of decisions
you need to make. However, bear in mind that each decision should have no more than
two possible outcomes - if you craft the decisions in this manner, there is a smaller
possibility of error, and a higher likelihood of arriving at the correct result.

The second rule to bear in mind is that each answer to a decision must lead to only one
other decision. For example, if a decision can have two possible outcomes, ‘yes’ or ‘no’,
then each of these outcomes should only lead to one decision - that is, the ‘yes’ response
should lead to only one decision, and the ‘no’ response should lead to only one decision
as well.

If you do this, you have created what is known as an ‘algorithm’, that is, a well-defined,
clear sequence of instructions that will help you solve a problem.

Quiz 3

Create algorithms that can be used to apply the following rules to various fact situations:

1. Section 5 of the Indian Contract Act, 1872:

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 5. Revocation of proposals and acceptances.—A proposal may be revoked
at any time before the communication of its acceptance is complete as against the
proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the

acceptance is complete as against the acceptor, but not afterwards.

(Note: Create two separate algorithms, one for determining when proposals may
be revoked, and one for determining when acceptances may be revoked.)

2. Sub-section 2(68) of the Companies Act, 2013:

2. Definitions.—...

(68) ―”private company” means a company having a minimum paid-up share

capital as may be prescribed, and which by its articles,—

(i) restricts the right to transfer its shares;

(ii) except in case of One Person Company, limits the number of its members to
two hundred:

Provided that where two or more persons hold one or more shares in a company
jointly, they shall, for the purposes of this clause, be treated as a single member:

Provided further that—

(A) persons who are in the employment of the company; and

(B) persons who, having been formerly in the employment of the company, were
members of the company while in that employment and have continued to be
members after the employment ceased, shall not be included in the number of
members; and

(iii) prohibits any invitation to the public to subscribe for any securities of the
company;

3. Sub-section 54F(1) of the Income Tax Act, 1961:

54F. Capital gain on transfer of certain capital assets not to be

charged in case of investment in residential house.—(1) Where, in the
case of an assessee being an individual, the capital gain arises from the transfer of

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 any long-term capital asset, not being a residential house (hereafter in this
section referred to as the original asset), and the assessee has, within a period of
one year before or after the date on which the transfer took place purchased, or
has within a period of three years after that date constructed, a residential house
(hereafter in this section referred to as the new asset), the capital gain shall be
dealt with in accordance with the following provisions of this section, that is to
say,—

(a) if the cost of the new asset is not less than the net consideration in respect of
the original asset, the whole of such capital gain shall not be charged under
section 45;

(b) if the cost of the new asset is less than the net consideration in respect of the
original asset, so much of the capital gain as bears to the whole of the capital gain
the same proportion as the cost of the new asset bears to the net consideration,
shall not be charged under section 45:

Provided that nothing contained in this sub-section shall apply where the
assessee owns on the date of the transfer of the original asset, or purchases,
within the period of one year after such date, or constructs, within the period of
three years after such date, any residential house, the income from which is
chargeable under the head "Income from house property", other than the new
asset.

If you have completed Quiz 3, you should be quite adept at breaking complex rules down
into a series of decisions; you would also have realised that the series of decisions you
sometimes have to make can be lengthy, and writing them down in a sequence of steps
can be difficult if the rule has many conditions. In such cases, attempting a visual
representation of the decisions you have to make can be quite helpful.

One method of creating such a visual representation is to draw a ‘flowchart’. This is a

graphical representation of the sequence of steps, or decisions. Flowcharts can be very
complex, and can use many different elements, but for our purposes, we can make do
with these three elements:

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Using these three types of boxes, or elements, and connecting them with lines and
arrowheads pointing out the correct direction in which to proceed, we can create fairly
complex flowcharts that should be up to the task of representing almost any kind of
algorithms created to find the results of complex statutory provisions.

Let’s see how we can use flowcharts to represent our algorithms. We’ll begin with a
simple one, which could be used to determine the result in the case of Johnny and
Mother’s rule:

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25 of 59
As you can see, the flowchart above comprises two decisions (contained in the
diamond-shaped decision boxes). Each decision has only two possible outcomes. Each
outcome can only lead to one further decision (or outcome).

Now, let’s apply this to a more complex rule: S. 300 of the Indian Penal Code, 1860,
which states:

300. Murder.—Except in the cases hereinafter excepted, culpable

homicide is murder, if the act by which the death is caused is done with
the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the person to
whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or—

(Fourthly) —If the person committing the act knows that it is so

imminently dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death, and commits such act without any
excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations...

Exception 1.—When culpable homicide is not murder.—Culpable

homicide is not murder if the offender, whilst deprived of the power of
self-control by grave and sudden provocation, causes the death of the
person who gave the provocation or causes the death of any other person
by mistake or accident. The above exception is subject to the following
provisos:— (First) —That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm to any
person.

(Secondly) —That the provocation is not given by anything done in

obedience to the law, or by a public servant in the lawful exercise of the
powers of such public servant.

(Thirdly) —That the provocation is not given by anything done in the

lawful exercise of the right of private defence. Explanation..

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 Exception 2.—Culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or property,
exceeds the power given to him by law and causes the death of the person
against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence. Illustration...

Exception 3.—Culpable homicide is not murder if the offender, being a

public servant or aiding a public servant acting for the advancement of
public justice, exceeds the powers given to him by law, and causes death
by doing an act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public servant and
without ill- will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it is committed

without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue advantage
or acted in a cruel or unusual manner. Explanation.—It is immaterial in
such cases which party offers the provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when the person whose

death is caused, being above the age of eighteen years, suffers death or
takes the risk of death with his own consent. Illustration...

This is a fairly complex rule - it has four parts, and five exceptions; the first exception has
three provisos as well. Our first step would be to break this rule down into the various
decisions we have to make, and then sequence them in the proper order. Once this is
done, we can attempt to create a flowchart of the sequence of decisions we have to make.
Such a flowchart may look something like this:

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28 of 59
From this flowchart, it now seems that applying S. 300 of the Indian Penal Code, 1860
can be a fairly straightforward exercise:

1. First, we must ask whether culpable homicide has occurred;

2. Then, we must determine whether the act fell within any of the four parts of the
section;
3. If the act does fall within any of the four parts of the section, we must then
determine whether it falls within any of the exceptions; and
4. If the act falls within the first exception, we must also consider whether it is
covered by any of the three provisos to that exception.

The correct sequence of these decisions is denoted by the lines with arrowheads in the
flowchart.

Quiz 4

Create flowcharts for the three rules that you created algorithms for in Quiz 3. You could
do this on paper, or using any other tool that you are comfortable with. One such tool is
available at: [Link]

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3.4 Reading Legislation
We are now familiar with one technique of breaking rules down into their parts, and
interpreting and applying those rules. So far, we have only looked at individual sections
of statutes, and we now turn our attention to reading statutes as a whole.

Before we examine how to read legislation, it is important to understand why we need to

read legislation. A simple response might be:

● Legislatures create laws in the form of statutes;

● Therefore, to understand what the law is, we must read statutes.

Fair enough - but we can draw out a lot of detail from those two statements! In addition
to understanding which legislature has created a statute, we may also need to understand
when it enacted that statute (so that we have a clear idea of when the law came into
force), and for what purpose it created that statute (to the extent that it is possible to
determine this).

How do we do this? Let’s take a look at statutes that you may be somewhat familiar with
by now, and understand how we can derive all this information.

Self-Assessment Questions 3

The following is an image of the first page of the Transgender Persons (Protection of
Rights) Act, 2019 (the “TG Act”). What information about the TG Act can you derive
from this image of the first page?

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31 of 59
Now, look at the annotated copy of the same page in the image below:

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This page tells us the following things about the TG Act:

1. It was published in the Gazette of India. Why is this important? You may have
heard the principle ‘ignorance of law is no excuse’; that is, it is no defence in law
that one was unaware of the law. Therefore, there has to be some method by
which the government can make laws known to the general public. This is done
by way of publication in the Gazette of India.
2. It was published at the instance of the Ministry of Law and Justice, Legislative
Department (Annotation 1). Recall our discussion about who drafts laws.
3. It was published on December 5, 2019 (Annotation 2). This means that one could
not be blamed for not knowing what the TG Act provides before that date, since
the law had not been made available for the general public before that date.
4. The TG Act is an act of Parliament, that is to say, the Union legislature of India
(Annotation 3).
5. It received the assent of the President on December 5, 2019 (Annotation 4).
Recall that the President’s assent is a vital, final step in the creation of legislation
in India.
6. The proper citation, or technical name, of the statute is The Transgender Persons
(Protection of Rights) Act, 2019 (No. 40 of 2019) (Annotation 5). In addition to
the name of the statute, the citation also tells us that it was the fortieth act that
Parliament passed in the year 2019.
7. It gives us the long title of the TG Act (Annotation 6). The long title may help a
reader better understand the rationale behind the TG Act.
8. The TG Act is divided into chapters (Annotation 8). Each chapter may include a
number of related topics.
9. Sub-section 1(1) gives us the short title of the TG Act (Annotation 9). The short
title is the name by which a statute is commonly referred to.
10. Sub-section 1(2) tells us to what area the TG Act extends (Annotation 10). This
kind of clause is also called an ‘extent’ provision.
11. Sub-section 1(3) tells us when the TG Act would come into force (Annotation 11).
This kind of clause is also called a ‘commencement’ provision. The
commencement clause of the TG Act makes it clear that the TG Act would not
come into force on the day it was published in the Gazette of India, but at some
other date, which the Central Government may specify by way of notification in
the Official Gazette. To determine when the TG Act came into force therefore, we
must once again look through the Gazette for the notification specifying that date.
12. Some marginal notes appear next to Section 1 (Annotation 12). These notes
indicate what that section relates to.

Now, take a look at the first page of another statute that we have occasionally discussed
in class, the Arbitration and Conciliation Act, 1996 (the “A&C Act”):

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34 of 59
Aside from the various fields of information that we have already pulled out from the
annotated version of the TG Act, there are two additional types of information we can
derive from the image of the A&C Act above:

1. This act has a ‘preamble’, which the TG Act does not (Annotation 1). Not all
statutes, therefore, have a preamble, and it is more or less up to the discretion of
the legislature whether they wish to provide a preamble in an act. The preamble
may tell the general reader a little more about the act, and why it was enacted.
2. The A&C Act comprises ‘parts’, which in turn comprise chapters (Annotation 2).
Recall that the TG Act only had chapters, and not parts.

Additionally, the A&C Act also includes an index, or table of contents, which describes
the arrangement of its sections and schedules. A full version of the A&C Act is available
on your LMS, and you should look at it carefully.

While we know that each section of a statute can be broken down into its parts for ease of
interpretation and application, we also need to understand what all the different parts of
a statute do - that is, what help they may or may not offer us in interpreting the statute.
The following extract is helpful in this regard:

It took 700 years of passing Acts before the Parliament of the United
Kingdom broke up its Acts into sections and put in some headings. Before
that it was margin to margin solid blocks of text. As Jeremy Bentham put
it early in the 1800's that when the first suggestions were made about
splitting up the text of Acts into sections it was suggested that it was a
Jacobean plot to undermine the English language. Although there may be
slight variations in the positioning of certain clauses in Bills drafted in the
English language in the various countries employing that language, it can
safely be asserted that the structure of Bills is more or less uniform in all
such countries.

According to Symonds every Act of Parliament consists of its title, the

expression of the enacting power, and the body of the enactment, but
there are commonly other adjuncts, which are not indispensable in all
cases. Such are the preamble, provisos, exceptions, schedules. The first
care here according to him should be that the title must express the whole
scope of the Act. This is a test of its unity. If the statute be one of that class

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which may be regarded rather as appendages or codicils to former statutes
than independent laws, such as the amending and the explaining statutes,
it should be so expressed in the title, which should be confined to the
points to be amended or explained; and in the body of the statute there
should be no new matter having no relation to that which is the subject of
amendment. If also the Act be temporary that should be expressed in the
title.

...

The long title is followed by the preamble around which a mass of case law
has grown. In most cases the preamble is a redundancy which can safely
be eliminated. For instance, in many of the earlier Indian statutes the
preambles were mere repetitions of the long tides. The following are
illustrations.

The Indian Succession Act, 1925 (39 of 1925).

"An Act to consolidate the law applicable to intestate and testamentary

succession" (long title).

"Whereas it is expedient to consolidate the law applicable to intestate and

testamentary succession" (preamble).

The Identification of Prisoners Act, 1920 (33 of 1920).

"An Act to authorize the taking of measurements and photographs of

convicts and others" (long title).

"Whereas it is expedient to authorize the taking of measurements and

photographs of convicts and others" (preamble).

The Reformatory Schools Act, 1897 (8 of 1897).

"An Act to amend the law relating to Reformatory Schools and to make
further provisions for dealing with youthful offenders" (long title).

"Whereas it is expedient to amend the law relating to Reformatory

Schools and to make further provisions for dealing with youthful
offenders" (preamble).

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In all the above cases the preambles are a mere surplusage. In addition,
the use of the word "expedient" appears to suggest that the Legislature
feels somewhat hesitant or apologetic about the passing of the Act.

...

The object of the preamble can be served equally well by the long title in
almost all cases. Acts in the United Kingdom, Australia and Canada have
no preamble and in Republican India also preambles have now been given
up with very rare exceptions.

It has also been suggested that the long title and preamble are really old
fashioned frills and may be entirely dispensed with. They are said to be a
mere formality and of little use provided the Act is drawn in precise terms
and does not have to depend upon the above devices. The criticism is not
without substance.

...

STRUCTURE OF ACTS GENERALLY

Short Title

First, the title of the Bill (which is subsequently to become an Act) is

printed at the top. This is for purposes of reference and is short and
catches the eye quickly. It is known as the short title. Example, the
Transfer of Property Act, the Wealth-tax Act, the States (Reorganization)
Act.

Long Title

Then follows the long title. This gives an idea of what the Act proposes to
deal with in a nutshell. It can be short or long depending upon matters
which should be briefly referred to here in order to explain the main
purport of the Act. For instance, the long title to the Transfer of Property
Act, 1882 (4 of 1882) states simply that it is "An Act to amend the law
relating to transfer of property by Act of parties".

The long title to the Tea Act, 1953 (29 of 1953) is in the following terms.
"An Act to provide for the control by the Union of the tea industry,
including the control, in pursuance of the International Agreement now in
force, of the cultivation of tea in, and the export of tea from, India and for

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that purpose to establish a Tea Board and levy a duty of excise on tea
produced in India".

In both these cases the long titles are sufficiently explanatory and in the
latter case also gives the background.

First Section

The first section in all Indian enactments usually states (a) the short title
(b) the extent of operation of the enactment and (c) its commencement.

Short Title Clause

The short title clause generally runs as follows— "This Act may be called
the Transfer of Property Act, 1882". As the Act is and has to be referred to
by that name, the use of the work "may", unless it is construed as meaning
"shall", would appear to be somewhat inappropriate; but the word "may"
is used in all other countries in this context. The justification perhaps is
that the Act could also be referred to in some other manner so long as the
reference is clear.

Extent Clause

The extent clause deals generally with the territorial extent of operation of
the Act and may be couched in different forms— "This Act extends to the
whole of India" or "This Act extends to the whole of India except the State
of Jammu and Kashmir" or "This Act extends in the first instance to the
States of ... and may, by notification in the Official Gazette, be extended to
any other State by the State Government concerned". Normally, an Act of
Parliament is intended to apply to the whole of the country under its
legislative jurisdiction. If, therefore, the Interpretation or General Clauses
Act of the country concerned included a provision whereby every Act of its
Parliament is declared automatically to extend to the territories under its
legislative jurisdiction, the extend clause could also be eliminated except
in the rare cases where a more limited operation is called for.

Commencement Clause

The Interpretation or General Clauses Act usually provides that an Act of

Parliament shall commence (unless otherwise stated) on the day the Act is
assented to by the authority specified for the purpose under the
Constitution of the country or on the day on which such assent is first

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published in the official gazette. In this context a commencement clause
becomes necessary only where the Act is to come into force on a later date
or on different dates in different States or with respect to different
provisions or retrospectively and so on.
An Ordinance which is an emergency measure, has to come into effect
immediately on its promulgation and it is therefore customary for the
Indian draftsman to say in respect of an Ordinance that it shall come into
force at once.

Application Section

There are cases where an Act may have to be given extra-territorial

application, that is to say, a law may have to be made applicable to
citizens of India even when outside India, or to ships and aircraft
registered in India wherever they may be or to territorial waters. In all
such cases the practice is to have a separate section spelling out the
application of the Act. The Penal Code of India (1860), for instance,
provides that its provisions apply also to any offence committed by
"any citizen of India in any place without and beyond India. any person on
any ship or aircraft registered in India, wherever it may be;"

...

Definition Section

The definition section generally finds a place after the short title, extent
and commencement section or when there is a special application section,
after the application section. The location of definitions call for special
discussion.

...

In Indian enactments, the definition clause will generally be found

immediately after the clause relating to short title, extent and
commencement.

...

So far as Parliamentary exigencies will admit, the subject matter of a Bill

should be arranged with reference to administrative convenience; in other
words, its arrangement should be orderly and logical. Normal and general
provisions should be placed first. Special, exceptional and legal provisions

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should be placed towards the end. Temporary and transitional provisions
should be placed at the end of the Bill, because when they are spent they
can be repealed without making gaps in the main body of the Act. As a
general rule, it is convenient to lay down first the rules of law to be
observed, and then to state the authorities by which they are to be
administered and the procedure to be followed in administering them.

...

ORDER OF THE SECTIONS

According to the Guide to Drafting Legislation prepared by the

Connecticut General Assembly28 the order of sections, like deciding
where to break things into sections, is mostly a matter of common sense.
For example, a section establishing an agency should come before a
section spelling out its duties; a section making something illegal should
come before the penalty section. The general policy is that after the formal
title and the enacting clause, the order of sections is as follows:

1. Definitions
2. Most significant rules and provisions
3. Secondary rules and provisions and important exceptions
(Note that #2 and #3 may be combined in many instances.)
4. Housekeeping provisions (e.g., updating references to statutes within
the bill). This is usually something that can be left to LCO.
5. Penalties
6. Appropriations.
7. Repealer section, i.e., the outright repeal (as opposed to modification)
of statutes.
8. Effective date.

This order may be varied to fit the needs of a particular situation, and few
Bills will have all the types of sections in this list.

...

THE MAIN PART

In the operative or substantive part (if one may give it that name
notwithstanding that all parts of an Act are operative or substantive) the
main object or purpose of the Act or its principle or its leading motive will
be stated in clear terms. This generally consists of a small group of

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sections from which the main object or purpose of the Act can easily be
ascertained. The reader should not have to road about the Act in order to
find out its main object. In taxation Acts, for instance, the proposals for
taxation will be found in this part.

THE GENERAL PART

Then follows what may be called the general or machinery part in which
will be found provisions which are ancillary to, or which are a necessary
corollary of, the operative or substantive part to make the Act workable.
This part generally includes the agents or authorities administering the
law, and the instruments and means necessary to give effect to the law,
including sanctions to enforce the law. Sometimes the purpose of the Act
is best served by stating the powers conferred on authorities so that not
frequently the constitutions of the administering authorities is among the
first matters to be dealt with in an Act.

THE MISCELLANEOUS PART

Acts often contain a chapter headed "Miscellaneous" in which are

included provisions relating to matters like protection of action in good
faith buy authorities, exemptions, if any, from the operation of the Act,
power to delegate functions or to make rules. Special or exceptional
provisions, temporary or transitional provisions, provisions relating to
repeal or amendment of other laws are generally placed at the end so that
when the time comes they may be repealed without producing any gaps in
the body of the Act.

SCHEDULE

Very often a schedule has to be appended to an Act. The term "schedule"

is defined in the General Clauses Act, 1897, to mean a schedule to the Act
or Regulation in which the word occurs. A schedule is as much a part of
the Act in which it occurs as any other section thereof and, unless it is
made alterable by executive authority the question whether a particular
provision or set of phrases should appear in the body of an Act or in a
schedule is a question of form and Parliamentary practice. It goes without
saying that the schedule has also to be drawn with the same care as is
bestowed on the rest of the Act. In some cases there may be more than
one schedule; the Indian Constitution itself is an example of a law with
several schedules.

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 - Legislative Drafting for the New Millennium7

Exercise 1

1. Find copies of two recent legislation from the website of the Gazette of India,
identify all their parts, and derive all the information about them that we have
discussed above.
2. Based on the information in the passage above, which of these parts may be relied
upon in interpreting the statute? Which parts cannot be relied upon for purposes
of interpretation?

7
Viswanathan, T.K., (Ed.), Legislative Drafting for the New Millennium, Indian Law Institute,
New Delhi, 2007, pp. 161-179.

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3.5 Reading Cases
We know from our discussions on the Indian legal system that in addition to legislation,
we also place a lot of reliance on judge-made law, or ‘precedent’. Therefore, we also need
to be able to read and understand cases, or reports of judgments, and determine what
portions of a judgment are binding on later judges. This however, is not as simple as it
sounds - you may perhaps know already that many judgments are extremely lengthy, and
it can become difficult to identify all their relevant portions easily.

There can be many different ways of reading cases - and we will look at one such
approach in these materials, but before we do that, it would useful to understand what
information we need to extract from cases:

What the doctrine of precedent declares is that cases must be decided the
same way when their material facts are the same. Obviously it does not
require that all the facts should be the same. We know that in the flux of
life all the facts of a case will never recur; but the legally material facts
may recur and it is with these that the doctrine is concerned.

The ratio decidendi of a case can be defined as the material facts of the
case plus the decision thereon. The same learned writer who advanced
this definition went on to suggest a helpful formula. Suppose that in a
certain case facts A, B and C exist; and suppose that the court finds that
facts B and C are material and fact A immaterial, and then reaches
conclusion X (e.g. judgement for the plaintiff, or judgement for the
defendant). Then the doctrine of precedent enables us to say that in any
future case in which facts B and C exist, or in which facts A and B and C
exist, the conclusion must be X. If in a future case facts A, B, C and D
exist, and fact D is held to be material, the first case will not be a direct
authority, though it may be of value as an analogy.

What facts are legally material? That depends on the particular case, but
take as an illustration a “running down” action, that is to say, an action for
injuries sustained through the defendant’s negligent driving of a vehicle.
The fact that the plaintiff had red hair and freckles, that his name was
Smith, and that the accident happened on a Friday are immaterial, for the

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rule of law upon which the decision proceeds will apply equally to persons
who do not possess these characteristics and to accidents that happen on
other days. On the other hand, the fact that the defendant drove
negligently, and the fact that in consequence he injured the plaintiff, are
material, and a decision in the plaintiff’s favour on such facts will be an
authority for the proposition that a person is liable for causing damage
through the negligent driving of a vehicle.

What is really involved in finding the ratio decidendi of a case is a process

of abstraction. Abstraction is the mental question of picking out certain
qualities and relations from the facts of experience. Imagine a baby in
whose household there is a terrier called Caesar. The baby will be taught
to call this dog “bow-wow,” because, “bow-wow” is easier to say than
“Caesar.” If he sees another dog he will guess or be told that this other dog
is to be called “bow-wow” as well. This is an example of one of the baby’s
earliest feats of abstraction. Abstraction comes through the perception of
similarities between individual facts, and all language and thinking
depend upon it.

The next point to be noticed is that this process of abstraction may be

carried to progressively higher flights. The individual dog Caesar is, at a
low level of abstraction, a terrier; at a higher level he is a dog; higher still,
a mammal and then an animal and a living thing. In the same way a man
might say that he was born at the Piccaninny Nursing Home; in London;
in England; in Europe. All these are “facts,” but they are facts belonging to
different levels of abstraction.

We are now in a better position to state the ratio decidendi of a case. The
ascertainment of the ratio decidendi of a case depends upon a process of
abstraction from the totality of facts that occurred in it. The higher the
abstraction, the wider the ratio decidendi. Thus a rule that “it is a tort to
tell a lie that is likely to and does cause fright and consequent physical
harm” is a narrow rule, belonging to a low level of abstraction from the
facts of the particular case in which it was laid down; leave out the
reference to fright, and it becomes wider; replace “tell a lie” by “do any act
with intent to affect the plaintiff in body or mind” and it becomes wider
still…

How do we know when to stop with our abstraction? The answer is:
primarily by reading what the judge says in his judgment, but partly also

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 by our knowledge of the law in general, and by our common sense and our
feeling for what the law ought to be… The finding of the ratio decidendi is
not an automatic process; it calls for lawerly skill and knowledge.

...

In contrast with the ratio decidendi is the obiter dictum. The latter is a
mere saying by the way, a chance remark, which is not binding upon
future courts, though it may be respected according to the reputation of
the judge, the eminence of the court, and the circumstances in which it
came to be pronounced. An example would be a rule of law stated merely
by way of analogy or illustration, or a suggested rule upon which the
decision is not finally rested. The reason for not regarding an obiter
dictum as binding is that it was probably made without a full
consideration of the cases on the point, and that, if very broad in its terms,
it was probably made without a full consideration of all the consequences
that may follow from it; or the judge may not have expressed a concluded
opinion.

- Glanville Williams8

Questions for Reflection 2

In addition to the ‘legally material facts’ and the decision thereon, which Glanville
Williams tells us about in the extract above, it would also be important to gather the
following information when reading a case:

● Which court pronounced that judgment?

● How many judges pronounced the judgement? Were they all in agreement, or did
they disagree on some or all points in the judgment?
● When was the judgment pronounced?

8
Williams, G., Learning the Law, 11th ed., Universal Law Publishing Co. Pvt. Ltd., Delhi, 2007,
pp. 67-78.

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 1. Why do you think it is important to gather this additional information as well?
Recall our conversation about the doctrine of precedent, and how and on whom
precedent is binding.
2. Is there any other information that you think it is important to gather when
reading cases?

Now that we have a better idea of what we’re doing when we’re trying to read cases, let’s
look at one method of reading cases that might be helpful. We will employ this method in
reading a case that we have discussed in class previously, and with which you may be
somewhat familiar already: National Legal Services Authority v. Union of India and
Others, WP (Civil) No. 604 of 2013 (the “NALSA case”).

First, counter-intuitive as it sounds, it is helpful to start at the very end of the case. Look
at the images of the last two pages of the NALSA case below and see what information
you can derive from them:

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47 of 59
48 of 59
Exercise 2

From the images of the last two pages of the NALSA case above, can you identify:

1. The court that pronounced the judgment?

2. What type of matter the case related to?
3. Who the main parties in the case were?
4. When the judgment was pronounced?
5. How many judges made up the bench that pronounced the judgment?
6. Whether the judges agreed with each other’s opinions?
7. What the outcome of the matter was?

Now, let’s keep going backwards(!) - just before the last two pages of the judgment, there
are three pages in the judgment that look like this:

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50 of 59
51 of 59
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You may by now have figured out that the two judges in the case agreed with each other,
but pronounced two separate judgments; however, this last portion of the judgment was
signed by both judges. It includes a set of declarations and orders, but is it the ratio
decidendi of the case?

We read a little while ago that we need both, the legally material facts, as well as the
decision on those facts, to determine what the ratio decidendi of a case might be. The
three pages of the NALSA case that we have just seen may include some parts of the ratio
decidendi, but they do not provide us all the relevant facts and decisions.

We are now at an advantage though - we have a lot of information about the case, which
tells us what the binding value of the case may be; we also know, from what we have seen
of the NALSA case so far, what the outcome of the case was. Now that we have this
information, it should be somewhat easier for us to focus on the most relevant parts of
the judgment as we read it.

Make sure you keep all this information at hand as you read the entire judgment now,
from beginning to end. Since it is a large document (about 113 pages), it is entirely
possible that you may feel a little overwhelmed as you read through it - but if you do, all
you need is to keep referring to the information you have already gathered, and
determine whether the portion you’re reading is amongst the most important parts of the
judgment.

A last word about reading cases: it may be tempting to think that there is some ‘magic
formula’ that will help us read and understand lengthy cases in a matter of minutes; if
there is, we are unaware of it. You will have to get accustomed to reading lengthy
judgments if you want to work with the law - but the method we have just outlined may
help ensure that you can focus more easily on the relevant, binding parts of the
judgment, and not get lost in the thicket of facts, arguments, and discussions that
abound in such long judgments.

Exercise 3

1. A copy of the NALSA case is available on your LMS. Read it carefully, and try and
extract all the information we have discussed in the previous exercise, as well as:
a. the legally material facts;
b. the arguments of the parties involved in the matter;
c. what materials, or sources, the judges discussed;
d. what the decision of the judges on the legally material facts was; and

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 e. what additional observations or pronouncements the judges made.
2. Copies of the judgments in Aghnoo Nagesia v. State of Bihar, 1966 AIR 119 and
Animal Welfare Board of India v. A. Nagaraja and Others, C.A. No. 5387 of
2014 are also available on your LMS. Attempt the same exercise as in (1) above
with these two cases.

Self-Assessment Questions 1

1. Which of the following is accurate in relation to the doctrine of precedent as it

applies in the Indian legal system?

(a) Decisions of a lower court are binding on a higher court.

(b) Decisions of a larger bench are binding on a smaller bench.
(c) Decisions of high courts are binding on the Supreme Court.
(d) Decisions of the Supreme Court are not binding on district courts.

2. Which of the following is generally not included as a part of an Indian statute?

(a) Short title

(b) Long title
(c) List of authorities
(d) Enacting formula

3. Find the gazette notification through which the Ministry of Electronics and
Information Technology notified the threshold for a social media intermediary to
be considered a ‘significant social media intermediary’ under the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021. From the options below, identify the threshold prescribed in the
notification, and the citation of the notification (the citation begins with ‘S.O…’:

(a) Thirty lakh registered users, S.O. 942(E)

(b) Thirty lakh registered users, S.O. 451(O)
(c) Fifty lakh registered users, S.O. 942(E)
(d) Fifty lakh registered users, S.O. 451(E)

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4. Find the judgment in the case of Prathvi Raj Chauhan v. Union of India, WP (C)
1015/2018 (judgment dated February 10, 2020) (the “Prathvi Raj Chauhan case”)
from the website of the Supreme Court of India. Which of the following was held
in the majority judgement in that case in relation to the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the “Act”)?

(a) That S. 438 of the Cr.P.C., would not apply to cases under the Act.
(b) That S. 438 of the Cr.P.C., would always apply to cases under the Act.
(c) That S. 2 of the Act is unconstitutional.
(d) That S. 43 of the Act is partly unconstitutional.

5. Who among the following wrote a separate judgment in the Prathvi Raj Chauhan
case; further, what was the nature of this separate judgment?

(a) Justice R.F. Nariman; dissenting judgment.

(b) Justice U.U. Lalit; concurring opinion.
(c) Justice A.M. Khanwilkar; dissenting judgment.
(d) Justice S. Ravindra Bhat; concurring opinion.

6. Find S. 3 of the Bilateral Netting of Qualified Financial Contracts Act, 2020 (the
“Bilateral Netting Act”) from the ‘India Code’ website. Read S. 3 carefully, and
pick the option that is most accurate in relation to that section:

(a) The Bilateral Netting Act will not apply to a qualified financial contract IF the
contract is entered into on a bilateral basis AND it is entered into between
qualified financial market participants AND it is entered into under a netting
agreement OR otherwise AND at least one such participant is an entity regulated
by an authority specified in the First Schedule.
(b) The Bilateral Netting Act will apply to a qualified financial contract IF the
contract is not entered into on a bilateral basis OR it is entered into between
three or more qualified financial market participants AND it is entered into under
a netting agreement OR otherwise AND at least one such participant is an entity
regulated by an authority specified in the First Schedule.
(c) The Bilateral Netting Act will apply to a qualified financial contract IF the
contract is entered into on a bilateral basis AND it is entered into between
qualified financial market participants AND it is entered into under a netting
agreement OR otherwise AND at least one such participant is an entity regulated
by an authority specified in the First Schedule.
(d) The Bilateral Netting Act will not apply to a qualified financial contract IF the
contract is entered into on a bilateral basis OR it is entered into between three

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 qualified financial market participants OR it is entered into under a netting
agreement OR otherwise AND at least two such participants are entities regulated
by an authority specified in the First Schedule.

7. Which of the following is true in relation to S. 7 of the Bilateral Netting Act? (Use
the version of the Act on the India Code website, as in the previous question.)

(a) IF the parties to a qualified financial contract do not enter into a netting
agreement THEN the Reserve Bank of India will determine the net amount
payable under the close-out netting.
(b) IF the parties to a qualified financial contract enter into a netting agreement
THEN the terms of the netting agreement will determine the net amount payable
under the close-out netting.
(c) IF the parties to a qualified financial contract enter into a netting agreement
THEN an arbitrator will determine the net amount payable under the close-out
netting.
(d) IF the parties to a qualified financial contract enter into a netting agreement
THEN the terms of the netting agreement will not determine the net amount
payable under the close-out netting.

[Answers on the following page]

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1. Correct answer: (b) - Decisions of a larger bench are binding on a smaller bench.
Recall our discussions in Session 7 in this regard.

2. Correct answer: (c) – List of authorities. Recall our discussions in Session 6 in

this regard.

3. Correct Answer: (c) - Fifty lakh registered users, S.O. 942(E). The notification is
available on the website of the Gazette of India at:
[Link]

4. Correct Answer: (a) - That S. 438 of the Cr.P.C., would not apply to cases under
the Act. This is set out in para 10, page 17 of the majority judgment of Arun
Mishra and Vineet Saran, JJ. The judgment is available at:
[Link]
_Judgement_10-[Link]

5. Correct Answer: (d) - Justice S. Ravindra Bhat; concurring opinion. Justice

Bhat’s concurring opinion appears page 18 onwards of the judgment in the
Prathvi Raj Chauhan case.

6. Correct Answer: (c) - The Bilateral Netting Act will apply to a qualified financial
contract IF the contract is entered into on a bilateral basis AND it is entered into
between qualified financial market participants AND it is entered into under a
netting agreement OR otherwise AND at least one such participant is an entity
regulated by an authority specified in the First Schedule. Apply the IF/ THEN,
AND/ OR method we discussed in Session 6. The section is available on the India
Code website at:
[Link]
_1602065217441&sectionId=50592&sectionno=3&orderno=3

7. Correct Answer: (b) - IF the parties to a qualified financial contract enter into a
netting agreement THEN the terms of the netting agreement will determine the
net amount payable under the close-out netting. Apply the IF/ THEN, AND/ OR
method we discussed in Session 6. The section is available on the India Code
website at:
[Link]
_1602065217441&sectionId=50596&sectionno=7&orderno=7

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3.6 Key Take-Aways
1. Many of the same methods that we can use to understand and analyse any form
of textual materials can also be applied in the context of laws.

2. Sometimes, legislative language provides simple and plausible answers to

questions about their application; however, it may sometimes provide an unclear
answer, or give us no result at all, and sometimes, the answers provided may lead
to an absurd result, such as in The Merchant of Venice, where a strict application
of the language of the bond would have led to Antonio’s death - a decidedly
absurd outcome, given that the context was the repayment of a monetary debt.

3. Several specialised rules of statutory interpretation have been developed over the
years, and these are applied by judges where the plain language of the statute is
unclear, or provides an absurd result.

4. Often, where the language of a statute appears to be clear and unambiguous, and
where such language does not provide an absurd result, our job will involve
identifying what the meaning of that plain language might be.

5. Any rule can be broken up into two parts: an ‘If’ part, and a ‘Then’ part. The ‘If’
part provides a condition, and the ‘Then’ part provides the consequences of that
condition being met (or remaining unfulfilled).

6. An ‘algorithm’ is a well-defined, clear sequence of instructions that will help you

solve a problem.

7. When published in the Official Gazette, a legislation has several distinct parts,
each of which serves a distinct function. It is important that we are able to
identify these parts and their functions. In particular, we should know which
parts can be relied upon to interpret the provisions of the statute, and which parts
cannot be relied upon for interpretative purposes.

8. Reading judgments can be a long and arduous process - but a necessary one for
anyone who wants to work with the law. We have talked about some methods
that can be used to make this process a little simpler, but nothing can replace the
need to read judgments in their entirety.

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3.7 Further Readings and Resources
1. Viswanathan, T.K., (Ed.), Legislative Drafting for the New Millennium, Indian
Law Institute, New Delhi, 2007.

2. Twining, W., and Miers, D., How to Do Things with Rules: A Primer of
Interpretation, 5th ed., Cambridge University Press, 2010.

3. Boole, G., An Investigation of the Laws of Thought, Benediction Classics, Oxford,

2017.

4. Hofstadter, D.R., Gödel, Escher, Bach: An Eternal Golden Braid, Basic Books
Inc., New York, 1979.

5. Polya, G., How to Solve It: A New Aspect of Mathematical Method, New
Princeton Science Library Edition, Princeton University Press, Princeton, 2014

*****

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