Legal Methods from Day 1

● What is Law?
A very common question, asked in several different ways.
- To make us conscious that there are several ways of analyzing legal
systems and law

● The whole purpose of law for legality and legitimacy is to ensure that a perfect
procedure must be followed, and if that is not possible, then the act does not hold
good in law.

● The law must have been made by a person who had the power to do it in the first
place (If the person ​did not have the power​, then can the act/rule be held as law?)
(NO)
● If the prime minister of the country asked for the lockdown, or the junta Curfew,
can these two be held as law if he didn’t have the power to do it?​ ​(NO)
● Normative Propositions:
● Normative theory​ ≡ a theory that attempts to prescribe something.
If one has been given a certain power, then there always must exist a threshold or a
boundary at which the power must be curtailed- Eg. One cannot make a law in
contravention of the fundamental rights.
● If the lockdown was bound to harm people, and be a violation of the right to life
and liberty then is it law?
● If one does not have the power to make the law and Yet it is being enforced, then
is it law?
● The rule must be followed not because of sanctions, but because it must be
believed to be rightful and obligated.

- When ​HLA HART said that something is a rule only when there are
corresponding sanctions, even if (Subtle and indirect) exist.
- HLA HART has a minimal morality content, and yet he said that even if people
are just morally bound to law for subtle sanctions that they refuse to acknowledge,
then the act can still qualify as a law.
- ‘There are several ways of looking at law’
- If one looks at the same reality from a realist perspective, then it can be law.
- If one approaches it from a positivist perspective, then if there was no authority in
the hands of the one that made the law, then it is not law, and the rule is ​BAD IN
LAW.
 ● Was the Junta Curfew merely advisory?
● If one has no scope to disobey (Train or travel) then is it really at our
discretion? (Is the curfew really advisory?)
● Although the prime minister is expected to follow some rules and
guidelines, and if he doesn't, and he is given enough leeway to ignore the
rule of the land, then is he right? Is that kind of law good law?
● Who has the power in the ​EPIDEMIC DISEASES ACT​, AND THE
DISASTER MANAGEMENT ACT​?
● If the PM announces it, and if he doesn't have authority, then the action
does not hold good in law.
● The same goes for the demonetization, which ​was actually the authority of
the ​RBI​, and not the Prime Minister.
● In this situation, are we a ‘Lawful society’? (no)
● Note- Section 10 of the National Disaster Management Act 2005 gives
power to the central government to initiate the rule creation process, and to
consult with the states, and they can ​ONLY​ issue guidelines, and they
cannot subsume the power of the state.
● Note- if by​ pith and substance, i​ f something, some subject in the state list,
then it is a part of the state law, and cannot be legislated upon by the centre.
● DID the centre have the power to impose a country wide lockdown?
● If one has a constitutional reservation, then should the central government
legislate on the topic?
● If we are federal, then should a centralised,blanket system of guidelines be
imposed?
● Is a health emergency best imposed by the police?
● There was no internal emergency. Yet why was the procedure overlooked?
● (the law is saying what you want it to say)
● WHAT IS LAW:
As per the claims made by the western legal tradition,
1. Law is a distinct enterprise
2. It is independent of other forms of social control
3. It requires institutions and experts
Because of its ORGANIZATION and FUNCTIONING it is a science.

Law, as a doctrine distinguishes itself as ​PHENOMENA OF SOCIAL CONTROL​, ​due to its

UNITY​ AND​ SEPARATION​ ​from other forms of social control:
 ● UNITY: ​Law is a unity, and has the characteristic of being essential, which distinguishes
it from all else. This unity is derived from the conceptual characteristic of the absolute
source of law
● The following are the separations of law:

INSTITUTIONAL​ v ​IDEATIONAL​ understanding of law.

Institutional:
An institutional understanding of law emphasizes on the facts that in every legal system,
particular institutions have been designated for performing the various jobs in law of
1. Legislating
2. Enforcing
3. Adjudicating
4. Regulation
● An Institutional understanding of law studies the relationships and the
interrelationships between the various institutions (organs/appendages) of the
government. (For example the legislature and the judiciary)

● The institutional plane decides the jurisdiction of these different institutions.

● The conflict between the centre, state, and the local governments come into play.
● In different societies at different points of time, law may have meant
1. Magic
2. Vendetta
3. Song Contest (??)
4. Rule of War
5. Trial by Ordeal
● Law has also understood as being derived from :
1. God
2. Nature
3. Monarch
4. Spirit of the people
5. Customs and social usage
Ideational:
● The ideational understanding of law attempts to study the understanding of Law from its
inception, or from the time that it has been ‘ideated’.
● Is the source of law:
1. Nature
2. Divinity
3. Social Contract…. And so on .
● The ideational source of law refers to the idea or belief that lies at the basis of the system
of law, and serves as the source of law.
● The ideational understanding of law answers the following questions:
1. WHY IS LAW AUTHORITATIVE?
2. WHY SHOULD LAW BE OBEYED?
● Note: At present the legal culture does not stress the ideational understanding of Law,
and prefers to stress upon the institutional understanding of law.

Systemic Understanding of Law:

● The systemic understanding of Law is such that the construction of, and the roles of these
legal institutions depends upon the system in which they are situated
● Eg: The role of a judge in the common law system is different from the role of a judge in
the Civil Law system
● Eg. Law making in international Law is different from Law making in Municipal
(National) legal systems.
● The understanding of Common Law for example, and the Doctrine of Stare Decisis, and
its development would come under a systemic understanding of law. (Accretion of
precedent as cases were decided)

STATE CENTRIC UNDERSTANDING OF LAW:

1. Is the state the only promulgator of law?

2. Is the state subject to its own laws?
3. Is the state questionable?
 4. When does the presumption of constitutionality get negated?

LAW IN BOOKS V LAW IN ACTION:

The Epidemic Diseases Act 1897

● The statute has a long title and the short title
● The epidemic diseases act obviously has a colonial pedigree (Happened before the
constitution, and thereby before the fundamental rights)

What is the difference between pre constitutional and post constitutional laws?
Pre constitutional:
Article 13 of the constitution:
All parts, or provisions of law enacted prior to the constitution is to be considered law, but shall
to that extent be void to which it is in derogation with the Indian Constitution and the
fundamental rights.
Article 13(1) of the Indian Constitution states – “All laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are inconsistent
with the provisions of this part, shall, to the extent of such inconsistency, be void”.

Article 13(1) of the constitution which relates to fundamental rights has no retrospective effect,
which means all existing laws which are inconsistent, become void from the date of
commencement of the Constitution.

​Post constitutional :
Article 13(2) of the Indian Constitution speaks of post constitutional laws, those
enacted post 26th Jan 1950. sub-clause (2) of the Article 13 states “The State shall not make any
law which takes away or abridges the rights conferred by this part and any law made in
contravention of this clause shall, to the extent of the contravention, be void”. From this, it can
be concluded that Article 13(1) deals with the pre-constitutional laws and Article 13(2) deals
with Post-Constitutional Laws. .
Note:
Doctrine of eclipse:

The Doctrine of Eclipse was brought into force in the case of Bhikaji v. State
of Madhya Pradesh ​and this doctrine laid down that the pre-constitutional
laws which were inconsistent with the fundamental rights were not wiped out
completely from the statute book but they continued to exist when they were
with regard to rights and liabilities. Hence, it could be said that the law was
‘eclipsed’ for the time being which means it was dormant and the same was
not dead for all purposes. Further, the law was applicable only to
pre-constitutional and not post-constitutional laws.

Doctrine of Severability:

The clauses of ​article 13 envisage that the law is void to the extent of its
contravention with regard to the Fundamental Rights. This means that a
provision is not void as a whole but only a part of it is void and the same is
severed from the rest of the part which continues to be valid and in force. For
the determination whether the valid parts of the statute are severable from the
invalid parts, the ​intention of the legislature in doing so becomes the
determining factor.

How do you distinguish between includes and means?

● Includes​: Exemplifies and gives examples, and need not be exhaustive or limited to the
instances cited in the act. When the word “includes” is used in the definition, the
legislature does not intend to restrict the definition; makes the definition enumerative but
not exhaustive.
Means​: draws a line to limit the definition.The use of the word ‘means’ indicates that
“definition is a hard and fast definition, and no other meaning can be assigned to the
expression than is put down in definition.
 Means and Includes​:
The words ‘means and includes’, on the other hand, indicate “an exhaustive explanation
of the meaning which, for the purposes of the Act, must invariably be attached to these
words or expressions.”

● Gazette:
The law notified and brought in as legislated by the government in its most authentic form.
The statute may come into force at some times when the law is Gazetted.
The legislation is not a public document till it is gazetted. (The ignorance of law is no excuse, but
such a law cannot be found out unless it is gazetted)

● From where does the central government get the power?

Law need not be ‘Open textured’, but if it is, it means it is open to wide interpretation,
and can be used to subsume the powers of the state.
Clearly, the central government derives its power from the Grund Norm, or the
fundamental law of the land.
One must read into the legitimacy of a law by examining the origin or the law, and the
legitimacy of the authority that legislated the law.

1. Rules are made in terms of “as and when may be prescribed” to dodge the
roundabout process of specifying and respecifying as and when revisions are
needed
2. Statutes- Made by legislatures
3. Rules and Regulations- Made by the specific government, when PRESCRIBED
by the legislature in the specific law.

Prof Dhanda: “legislation is a technical enterprise, it's not like

anything is there for the ​Heck ​of it”

What is legislation??:

● Only the lok sabha can proceed to pass a money bill, which does not go to the rajya sabha
(Sukrut)
● Report- prepared by either a joint committee or a select committee prior to the bill being
passed as legislation, in case there is need for deliberation.
● Once the bill is passed in both houses, it needs to receive presidential assent to be good
law.
 ● Post being published in the official gazette, then it becomes official law.

Where do we go to watch parliamentary debates from years ago etc?

(ChiDe)

1. https://rsdebate.nic.in/
2. https://www.indiacode.nic.in
3. http://www.indianlegislation.in/
4. http://egazette.nic.in
5. https://www.prsindia.org/

Note: Law is pedantic, yet, it is so that the law does not remain amenable to misuse, and yet is
precise enough to shelter those that have been wronged.