Law, Literature and Judicial

Process
 Reference Books
 T. K. Sinha, Textbook on Legal Methods, Legal Systems
and Research, 1st Edition, 2010, Universal Law
Publishing Co. Ltd.
 V D Mahajan, Jurisprudence and Legal Theory, Eastern
Book Co., 5th edn., Reprint 2010
 William Glanville, Learning the Law, 15th edn. Sweet
and Maxwell, 2011.
 S.R. Myneni, Legal Systems in the World, Asia Law
House, 1st edn., 2007
 Sharon Hanson, Legal Method and Reasoning,
Cavendish Publishing Ltd., 2nd edn, 2003
 Rattan Singh, Legal Research & Methodology, Lexis
Nexis, 1st edn., 2013
 S K Vermam&AfzalWani, Legal Research and

Methodology, Indian Law Institute, 2nd edn., 1st

Reprint 2006
 SYLLABUS
 UNIT-I: LAW: MEANING, CLASSIFICATION AND
SOURCES

 UNIT 2: INTRODUCTION TO READING AND

UNDERSTANDING OF LEGAL TEXT

 UNIT 3:UNDERSTANDING STEPS TO JUDICIAL PROCESS

 UNIT 4: BASIC CONCEPTS OF INDIAN LEGAL SYSTEM

 UNIT 5: LAW, MOTION PICTURES AND LITERATURE

 UNIT -1

 Meaning of law

 Functions & Classification of Law

 Sources of Law
 LAW
 Law can be defined as a rule of human conduct,
imposed upon and enforced amongst the members of a
State.

 Law:-
 Rule of human conduct
 Imposed and enforced by the state
 Amongst the members of a state
 Necessity of social order-orderly conduct of the society

 Larger the society- number and complexity of rules

increases

 Compulsion/enforcement
 Two ideologies underlying the concept of law:

 Order- set of rules and regulations

 Compulsion- Obedience of these rules and regulations

 Law means a body of rules that regulates the

conduct, action and behavior of a person, which is
made and enforced by the state.

• Regulates the actions and behavior of people

• Made by the state
• Enforced by the state
Three Components of Law
 1. A body of legal principles which exists in a
politically organized society

 2. There is systematic application of force by the

politically organized society which adjusts relationship
and ensures orderly conduct.

 3. Law is an official control in a politically organized

society.
 According to Salmond,

◦ “ Law can be defined as the body of principles, recognized and

applied by the state in the administration of justice.”

 Body of principles/set of rules

 Recognized by applied by the state
 Aim- administration of justice
 Law according to different School of
Jurisprudence

 Natural Law:

◦ Rights are inherent by virtue of human nature

◦ Endowed by nature or God or a Superior force
◦ Human reasoning capacity
◦ The natural law school is considered the oldest school of
jurisprudence. It views law as derived from universal principles of
justice and morality that are inherent in human nature.
◦ Propounders: Plato, Aristotle, [Link] Acquinas, Kant etc…
  Positive School:

◦ Law is a command of the sovereign.

◦ Sanction/Enforcement is the essence of law
◦ Law should be separated from morals and religion
◦ Positive law, also known as legal positivism, focuses on
human-made laws enacted by a governing authority, regardless
of their moral content.
◦ Propounders: Austin, Bentham etc…
  Historical School of Jurisprudence

 Derived partly from social habits and partly from experiences

 Silent growth of customs/unformulated public opinion
 Law develops like language
 Not Universal
 Law is not made but found
 Customs, traditions, and social practices are seen as the primary
sources of law
 Propounded by: Savigny
 Savigny, posits that law is not a product of abstract reasoning or
divine commands, but rather a reflection of a nation's unique "spirit
of the people," or Volksgeist
  Sociological School of Jurisprudence

 Law is a body of principles recognized and enforced by public and

regular tribunals in the administration of justice.

 Body of Principles
 Enforced by Courts of Tribunals
 Administration of Justice

 Functional aspect of law

 Law should be understood and evaluated based on its impact on
society, serving as a mechanism for social control, order, and
progress
 Control social activity of humans
 Sanction behind the law is not the force but awareness of people
 Obey law-to realize their needs
 Propounded by: Roscoe Pound, Montesquieu etc..
Societal /Public Interest

State Interest

Individual
Interest
 Realist School of Jurisprudence

 Separation of Powers (3 wings)

 Judge made laws

 What Courts decide

 Certainty of law is a myth and predictability depends on facts and

circumstances of each case.

 Propounders: Gray, Cardozo etc…

 Functions of Law
 Law is an instrument of social change

 Functions of Law

◦ Roscoe Pound 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.
 Classifications of law

◦ Public and Private Law

◦ Substantive and Procedural Law
◦ Civil and Criminal Law
◦ Municipal and International Law
◦ Codified & Uncodified
 Public and Private Law

 If you saw a man run from a convenience store with a few

pilfered products under his arm, he is violating public law.
He committed the crime of theft, and that affects everyone.
 On the other hand, if your neighbor filed suit against you
because your barbeque smoke traveled to his yard, you
may be violating private law. You infringed on your
neighbor's right to peaceful enjoyment of his property.
 Essentially, the difference between public law and private
law is whether the act or acts affect society as a whole or is
an issue between two or more people.
 To simplify things, public law deals with issues that
affect the general public or state - society as a whole.
Some of the laws that its wide scope covers are:
• Administrative law - laws that govern government
agencies, like the Department of Education and the
Equal Employment Opportunity Commission
• Constitutional laws are laws that protect citizens'
rights as afforded in the Constitution
• Criminal laws are laws that relate to crime
• Municipal laws are ordinances, regulations and by-
laws that govern a city or town
• International laws are laws that oversee relations
between nations
 Brown v. Board of Education, 347 U.S. 483 (1954) to better understand
public law as it relates to an administrative agency.
 In Brown v. Board of Education, Linda Brown, the plaintiff (brought about
by her father, Oliver), contended that his daughter was not being protected
under the Constitution. Since Brown was suing the Board of Education, this
falls under constitutional law, but an administrative agency was sued for the
violation.
 Linda had to walk several blocks to the school bus stop even though a closer
whites-only school existed within a few blocks from her home. Brown's
parents believed that Linda's 14th Amendment rights were violated when she
was banned from a white school closer to home because of her race.
 The case was won because the U.S. Supreme Court declared segregation a
violation of Brown's constitutional rights. This falls under public law because
issues of segregation and discrimination affect society as a whole, not just
this particular child.
 Private law affects the rights and obligations of individuals, families,
businesses and small groups and exists to assist citizens in disputes
that involve private matters. Its scope is more specific than public law
and covers:
• Contract law - governs the rights and obligations of those entering
into contracts
• Tort law - rights, obligations and remedies provided to someone who
has been wronged by another individual
• Property law - governs forms of property ownership, transfer and
tenant issues
• Succession law - governs the transfer of an estate between parties
• Family law - governs family-related and domestic-related issues
 In the case of Carvajal v. Hillstone Restaurant Group, Inc. (No. 10-
57757), Carvajal ordered and consumed a grilled artichoke at a local
Houston restaurant. It was his first time consuming this vegetable.
Unaware of the proper way to scrape the flesh against one's teeth, he
chewed and swallowed the entire artichoke including all the leaves.
 He alleges ordering a special item offered by a server, “which Plaintiff
advised he had never seen or heard of previously.” According to the
complaint, plaintiff Arturo Carvajal was not instructed that the outside
portion of the leaf should not be eaten, although the restaurant “had a
duty to use reasonable care with respect to the serving and explanation
of items not described on the menu; which by their appearance as
served appeared wholly consumable.” He is seeking damages in excess
of $15,000.
 Substantive and Procedural Law

 The law which defines rights and liabilities is known as substantive law. It is called
so since it lays down a proper and precise substance of subject matter which is
enforceable in the courts. The purpose of a law that is substantive is to define,
create or confer a proper substantive legal right or status or to impose the nature
and extent of any sort of legal duties or obligations.
 Substantive law, with regard to a specific subject, defines the legal rights and
relationship of people between themselves or between them and the State. Any
wrongdoing of an individual, group of persons or the state against another will
hold him liable to the others accordingly. For the purpose of any substantive law,
the wrongs could be either civil or criminal. Substantive law refers to all forms of
law both, public and private including the law of contracts, property, torts and
crimes of all kinds.
 The law of procedure is that branch of law that deals with the process
of litigation. It embodies the rules and procedures pertaining to the
institution and prosecution of any kind of civil or criminal proceeding.
Procedural law consists of a set of rules by which a court hears cases
and decides the proceedings. Historically, the law that many know is
substantive law, and procedural law has always been a matter of
concern only to those who preside over as judicial officers or those
advocating law. But, over a period of time, the courts developed a
system of evidence and procedure, that fall within the purview of
procedural law relating to the fairness and transparency of such
process.
 Bharatiya Sakshya Act (The Indian Evidence Act), the Limitation Act,
the Code of Civil Procedure, the Bharatiya Nagarik Suraksha Sanhita
(BNSS) (CrPC), 2023 are instances of procedural law.
 Civil and Criminal Law

 The civil law deals with the private rights and duties
which arise between individuals in a country. The object
of a civil action is to correct the wrongdoing that has been
committed. Enforcement of civil law is the accountability
of the individual who has committed the wrong and the
state is responsible to provide for the procedure to resolve
the dispute. In case of civil proceedings, the person who
claims, sues the defendant in the civil court and asks for a
remedy. The claimant will be successful in his claim if he
is able to prove his case. If the claimant is not successful,
the defendant will not be made liable for his actions.
 Criminal law is the law that is connected with the act of forbidding
particular forms of wrongful conduct and imposing punishment on
those who engage in such acts. Criminal proceedings are usually
brought in the name of the State and are known as ‘prosecutions. It
should be noted that prosecutions may be assessed by a private
individual or other bodies, such as the trading standards department of
the local authority but cannot undertake the case of the prosecution.
 In criminal cases there is a prosecutor who prosecutes the defendant for
the offence committed. The consequences of being proved guilty are so
extreme that the standard of proof is higher in criminal cases as
compared to civil scenarios. The allegations of a criminal conduct need
to be proved beyond reasonable doubt. If the prosecution successfully
proves the guilt of the defendant, he might be punished by the court
respectively.
 Punishments that are available to be imposed on the convict are
imprisonment and fines. If the prosecution is unsuccessful in proving
the guilt of the accused defendant, he is acquitted.
 Municipal and International Law

 Municipal or Domestic law is that facet of law that

springs from and has an effect on the members of a
particular state. An example of a municipal law is the
Constitution of India that applies only in India.
 On the other hand, International law is the law that
governs laws between different countries. It regulates
the relationship between various independent countries
and is usually governed by treaties, international
customs and so on.
 Examples of International law include the Universal

Declaration of Human Rights, the African Charter on

Human and People’s Rights etc.
 Codified & Uncodified

 Codified law is simply the body of statutes

and ordinances — written laws passed by
the legislative and administrative bodies
 To codify means to arrange laws or rules

into a systematic code. The process of

codification can involve taking judicial
decisions or legislative acts and turning
them into codified law. This process does
not necessarily create new law, it merely
arranges existing law, usually by subject,
into a code.
 Uncodified laws are those that originated
from sources such as court decisions,
customs and principles of jurisprudence
(such as legal concepts enshrined in Roman
law in the European context).
 torts is not completely codified, there is lack

of precedents for every situation.

THANK YOU
SOURCES OF LAW
 One must know as to what are the sources of law
and on which of the sources one can rely upon for
justice. It is very important to understand that the
law of every land is derived from the sources so
one has to know what are the sources of law
before getting into any concept of law.
Legislation

 The term ‘Legislation’ is derived from the Latin words ‘Legis’ meaning
regulation and ‘latum’ which means making. The legislation is
considered as a primary source of law in India, legislation has a wide
ambit and it is used to regulate, authorize, to enable, to provide funds,
to prescribe, to sanction, grant, declare or to restrict. The legislature
is framed by the parliament in the form of new acts, new laws, repeal
and amendment of old laws. The procedure for this is prescribed in the
constitution of India.
 So legislation as one of the source of law is further divided into two
parts :
 Supreme legislation: It is the parent law that originates from the
sovereign strength of the nation. It cannot be repealed, annulled or
managed by other legislative authorities.
 Subordinate Legislation: The subordinate legislation is dependent on
the supreme legislation for their validity and existence
 Customs
 Customs is an established mode of social behavior within
a community. It is one of the main and oldest sources of
law in India.
 Ingredients of customs as one of the sources of law in
India:
• Antiquity
• Continuous
• Obligatory in nature
• Consistency
• Reasonability
• Peaceful Enjoyment
• Certainty
 Judicial Precedents
 Judicial Precedents lays on the doctrine ‘stare decisis’, it
simply means adhering and relying on earlier decisions
made by the courts; i.e., for instance if a high court
decides on a particular case and a similar situation comes
to the lower court, the lower court will treat the case alike
and pass the judgement same as done by the high court.
This is because the high court has set a precedent for the
lower court and the lower courts are bound to follow it
 Key principles of judicial precedent
• Consistency
• Hierarchy
• Bound by their own decisions
 Justice, Equity And Good Conscience

 This principle is applied only in cases where the judges

feel that the law seems to be inadequate or out of date
or unjust. In such cases the judges make decisions based
on equity, good conscience, fairness and justice using
their commonsense.
 Conventional Law - International Treaties/Agreements
/Conventions

 With the emergence of globalization, there was an

increased need for countries to interact with one
another, this means that there’s a requirement for
countries to be bound by a single set of laws. Such laws
are made by way of treaties, agreements, etc., and
these are harmonized by the United Nations. Countries
who are members of the United Nations have to accept
such rules or norms laid down by the organization, and
abide by such statutes or rules and also such members
also have to frame laws in conformity with such rules.
And hence International conventions have an important
role in framing new laws or making amendments to
existing laws.
 Main types of legal
systems Civil Law vs. Common
Law
Legal System Legal system Legal system
originating in Europe characterized by case
whose most prevalent law, which is law
feature is that its core developed by judges
principles are codified through decisions of
into a referable courts and similar
system which serves tribunals.
as the primary source
of law.
Role of judges Chief investigator; Makes rulings; sets
makes rulings, usually precedent; referee
non-binding to 3rd between lawyers.
parties. In a civil law Judges decide matters
system, the judge’s of law and, where a
role is to establish the jury is absent, they
facts of the case and also find facts. Most
to apply the provisions judges rarely inquire
of the applicable code. extensively into
Though the judge matters before them,
often brings the formal instead relying on
charge. arguments presented
by the part
 Countries Spain, China, United States,
Japan, Germany, England, Australia,
most African Canada, India
nations, all South
American nations
(except Guyana),
most of Europe

Constitution Always Not always

Precedent Used rarely, but Used to rule on

used future or present
cases
History The civil law Common law
tradition developed systems have
in continental evolved primarily in
Europe at the same England and its
time and was former colonies,
applied in the including all but one
colonies of US jurisdiction and
European imperial all but one
powers such as Canadian
Spain and Portugal. jurisdiction. For the
most part, the
English-speaking
world operates
under common law.
Components/Parts of a Statute and their significance

 Short title
The short title of the Act is only its name and
is given solely for the purpose of facility of
reference.

 Long title
 A statute is headed by a long title whose

purpose is to give a general description

about the object of the act. Normally, it
begins with the words An Act to…
 Preamble
The Preamble to the Act contains the aims and
objectives sought to be achieved, and is
therefore, part of the Act. It is a key to unlock
the mind of the law makers.

 Marginal Notes
Marginal notes are those notes which are
inserted at the side of the sections in the Act
and express the effect of the sections. These
are also known as side notes.
 Headings
In all modern statutes, generally headings are
attached to almost each section, just
preceding the provisions. For example, the
heading of Section 437 of the Code of
Criminal Procedure, 1973 is “When bail may
be taken in case of non- bailable offence”.
Exceptions and Saving Clauses
Exceptions are generally added to an enactment
with the purpose of exempting something which
would otherwise fall within the ambit of the main
provision.

Schedules
Schedules attached to an Act generally deals with
as to how claims or rights under the Act are to be
asserted or as to how powers conferred under the
Act are to be exercised. The Schedules are
appended towards the end of the enactment.
 Punctuation
 In ancient times, statutes were passed without
punctuation and naturally, therefore, the courts
were not concerned with looking at punctuation.
 But in modern times statutes contain
punctuation. Therefore, whenever a matter
comes before the courts for interpretation, the
courts first look at the provision as they are
punctuated and if they feel that there is no
ambiguity while interpreting the punctuated
provision, they shall so interpret it.
 “Pardon impossible, to be sent to Siberia.”
 “Pardon, impossible to be sent to Siberia.”
 Definition or Interpretation Clauses
 Definition or interpretation clauses are
generally included in a statute with the
purpose of extending the natural meaning
of some words as per the definition given or
to interpret such words, the meanings of
which are not clear, by assigning them the
meaning given in the definition clause.
 Proviso
 In some sections of a statute, after the main

provision is spelled out, a clause is added,

with the opening words “provided that…”.
 The part of the section commencing with

the words “Provided that…” is called

Proviso.
 A proviso is a clause which is added to the

statute to accept something from enacting

clause or to limit its applicability.
 Article 141

 Law declared by Supreme Court to be binding on all

courts The law declared by the Supreme Court shall be

binding on all courts within the territory of India

 Meaning of Stare decisis

 ‘Stare decisis’ means ‘to stand by decided cases’. We

have hierarchy of courts. The Supreme Court is at the
top of pyramid. It decides cases with a seal of finality.
The decision is an authority for what it actually
decides. What is of essence in a decision is it ratio, and
not every observation found therein nor what logically
flows from the various observations made in the
judgment. The enunciation of the reason or principle on
which a question before a court has been decided is
alone binding as a precedent
 RATIO DECIDENDI
 Ratio Decidendi is a Latin phrase meaning ‘the reason’ or ‘the
rationale for the decision’.
 The Ratio Decidendi is ‘the point in a case that determines the
judgement’ or ‘the principle that the case establishes’. Ratio
Decidendi literally means ‘reason for deciding’.
 In the judicial context, it is the reason which is cited for
arriving at a decision in a case. Such reason is not the law that
is getting attracted in the contemporary case but is the
necessary notion which helps the court arrive at a particular
decision.
 OBITER DICTA
 Obiter dictum is the Latin phrase meaning “other things said”, that is, a remark
in a judgment that is “said in passing”. It is a concept derived from English
common law, whereby a judgment comprises only two elements: Ratio
Decidendi and Obiter Dicta.
 For the purposes of judicial precedent, Ratio decidendi is binding, whereas
obiter dicta are persuasive only. However, obiter dicta of the Supreme Court
are binding on all courts and Tribunals within the territory of India
 A judicial statement can be ratio decidendi only if it refers to the crucial facts
and law of the case. Statements that are not crucial, or which refer to
hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta
(often simply dicta, or obiter) are remarks or observations made by a judge
that, although included in the body of the court’s opinion, do not form a
necessary part of the court’s decision. In a court opinion, obiter dicta include,
but are not limited to, words “introduced by way of illustration, or analogy or
argument”. Unlike ratio decidendi, obiter dicta are not the subject of the
judicial decision, even if they happen to be correct statements of law.