Resources;

1. Sources – Salmond + GP
2. Legislation – Salmond + GP
3. Precedents – Salmond + GP + Glanville ratio and obiter and distinguishing
4. Customs – Salmond
5. Equity – Glanville – page 33 of pdf
6. Jurisdiction – sir pdf jurisdiction 1
7. Res judicata pdf + CK Takwani jurisdiction and sub judice and res judicata and
limitation act and judgement, order and decree, decree holder and topics under
place of suing and interim order
8. Takwani – 79-92 of pdf, 107-144, 151, 178, 179, 183, 235
9. Ian McLord – page – page 43 for English hierarchy n all
10.Ian McLord – page 26 – common and civil
11.Ian McLord – page 34 – public and private law, 35 – substantive and procedural
law, 36 – matters of fact and law
12.Salmond – page 65 at bottom of page – law and fact questions and territoriality

SOURCES OF LAW
A source of law is any fact, which in accordance with such basic legal rules, determines the acceptance
or recognition of any new rule as having the force of law

LEGAL SOURCES HISTORICAL SOURCES

These are the only gates through which new They operate mediately and indirectly and
principles enter field of law influence the course of legal development
They are recognized by law and have a Not recognized by any law, without any
formal backing formal backing
Authoritative value Unauthoritative persuasive value
Can be claimed as right in the court of law They do not have any such claim
Rule of law is directly attached to them They are merely precedent links in a chain of
which ultimate link must be a legal source
Relation between legal rule and legal Almost all rules of law have historical
authority lies in interaction between rule of sources as they have origin in some or the
law and the empowering institution other original event or text

TYPES OF LEGAL SOURCES

1) LEGISLATION is the making of law by the formal and expressed declaration of new rules by
some supreme authority which is adequate for that purpose

2) PRECEDENT is making of law by recognition and application of new rules by the court
themselves in the administration of justice. Enacted law comes into courts ab extra, case law is
developed within courts
3) CUSTOMARY LAW is constituted by customs which fulfil the requirement laid down by law
as the condition of their recognition as obligatory rules of law

4) CONVENTIONAL LAW is
constituted by agreement as having the
force of special law inter partes, in
derogation of, or in addition to, the
general law
Legislation is that source of law which
consist in the declaration of legal rules
PREAMBLE
by a competent authority. Legislature is
• Preamble outlines the object and the direct source of law. Legislature
policy that the constitution seeks to frames new laws, amends the old laws
establish and promote. and cancels existing laws in all
• Preamble is an ideal set up for countries. In modern times this is the
practices and observance. It sets most important source of law making.
basic features of the new state and
its basic socio-political objective.
The term legislature means any form of
• This ideal is carried out in detail by law making. Its scope has now been
the various provision of the restricted so a particular form of law
constitution. Constitution is an making. It not only creates new rules of
amplification and concretization of law it also sweeps away existing
concepts set out in preamble. inconvenient rules.
• Its principles set out for an
expanding future and is inclined to
The fact that the preamble was
endure for ages. separately passed after the enacting
• It explains and elucidate ambiguous provisions raised the question whether
provisions. It must be considered preamble was a part of the constitution.
even in absence of ambiguity. It 1. Re Berubari Union case, 1960
cannot be brushed aside as 2. IC Golaknath V. State of Punjab,
surplusage (completely irrelevant
to the cause).
1960
• It is not a source of substantive 3. Keshavanand Bharti V. State of
power nor a limitation. Kerala, 1973
• Therefore, we can say that
preamble promises socio economic
justice.
• In Preamble The objective sought to be achieved by the Constitution is declared in sonorous
terms.

Re Berubari Union case, 1960

• It was held that preamble is not a part of the constitution. It could be of assistance only in case
of ambiguity.
• It contains in a nutshell, its ideals and its aspirations. The preamble is not a platitude but the
mode of its realization is worked out in detail in the Constitution.
• Only purpose to show the general purposes of creating the constitution cannot be regarded as
an independent source of substantive power. (Something that talks about rights & obligations,
power & enforceability)
• Not to be used as an implied limitation upon the power of a sovereign legislature’s amending
power under article 368.
IC Golaknath V. State of Punjab, 1960
• In this case, the opinion of Re Berubari case was followed.
• Preamble cannot keep a check on the legislatures power of amending.

Keshavanand Bharti V. State of Kerala

• This case overruled the Golaknath case.
• In this case it was ruled that preamble is a part of constitution. However, it is not a source of
substantive power but an implied limitation on the constituent power of the parliament may
be derived from it i.e., the basic structure doctrine.
• Preamble can be used as a check on the amending power of the legislation.
• This is much more substantive than the preambles of other legislations which contains only
the context in which the rules for legislation are to be framed.

TYPES OF LEGISLATION
1. Supreme legislation: Supreme legislation is the expression of the legislative will of a supreme
authority in a state. It is supreme because no other authority can annual, modify or control it. It
proceeds from the sovereign or supreme legislative power in the state, and which is therefore,
incapable of being abrogated by any other legislative authority. Proceeds from the supreme power
of the state
2. Subordinate legislation: Subordinate legislation is that which proceeds from any authority other
than the sovereign legislation power, and is, therefore, dependent for its existence or validity on
some superior or supreme legislative authority. It comes from a subordinate legislature or any
authority and is subject to the repealing or sanctioning control of a superior legislation, subordinated
and subject to parliamentary control.
Types of subordinate legislation
The chief forms or types of subordinate legislation are five in number. These are:
1. Colonial legislation: It means legislation by the legislature of the colonies or other dependencies.
The Imperial parliament can repeal, alter or supersede any colonial enactment. This is the first and
the most important species of subordinate legislation, though its importance has diminished along
with the decline of colonialism.
2. Executive legislation: When legislative powers are delegated to the executive, it is called executive
legislation. Though the main function of the executive is to enforce laws, but in certain cases, the
power of making rules is delegated to the various departments of the government, which is called
subordinate delegated legislation.
3. Judicial decisions: The power of the some of the lower courts to make rules for the regulation of
their own procedure is considered as a delegated legislative power. This is judicial legislation in the
true sense of the term. Law-making by courts by way of precedents is not considered as an instance
of delegated legislation (article 141). It means rules of procedure made by courts for their own
guidance under authority delegated to them for the purpose. The superior courts have the power
of making rules for the regulation of their own procedures under article 145 and this is
constitutionally mandated and not a delegation
4. Municipal legislation: Municipal authorities, which are units of local self-government. Sometimes
municipal authorities are provided with the power of establishing special laws for the districts under
their control. The byelaws or regulations made by municipal authorities by virtue of the delegated
powers are applicable only within the territorial limits of such authorities. These are legislation of
local bodies such as municipal or corporations.
5. Autonomous legislation: All the above kinds of subordinate legislation proceed either from the
state, or from one or other of its many subordinate departments. It is the process of law making by
persons not by the state for their own guidance. Legislation thus made by private persons or private
authorities and the law created may be distinguished as autonomic view. These are autonomous
bodies like municipal councils, universities etc.

LEGISLATION POINTS
➔ Power to enact law is primary duty of the Parliament. However, it frequently enacts
a legislation empowering the executive branch or other specified bodies to make
rules or statutes or regulations which have effect of law, provided they are made
properly within constitutional and parental act’s check without going ultra-wires. The
essential theory of delegated legislation is that while the parliament deals with the
general principles, the delegated body or the executive branch attends to matters of
administration and other details
Difference b/w act and statute:

Act and statute are often used interchangeably but they have significant differences:

Act
Act means the formal document that is
drafted incorporating or policy of the
Government on any particular issue and is
moved and the passed by the legislative
body in the manner and procedure as may
be prescribed and is assented to by the
chief executive.
An Act is subject only to the Constitution
Statut
e
A statute is the document that may be
initially drafted in like manner as an Act,
passed by the same legislative body but
incorporates the detailed statement of
principles as to how the policy contained
in the Act is actually to be implemented.
A statute is subject to the Act as well as
the Constitution. It may be ultra vires the
Constitution or the parent Act both or either
if so, it would then be void.

An Act can be amended, or repealed only A statute may be amended even by

by the legislative body that enacted it or some other body in the way and in the
 its successors. manner as may have

(eg- usually elected parliament) been mentioned either in the Act or in the
statute itself.
The scope of the Act must not go beyond The scope of the statute must not go
the Constitution or the legislative beyond the ambit of the Act
competence of the body enacting it

Difference b/w rules and regulations:

Both are forms of subordinate legislation. Regulations are usually a further clarification of
rules. A rule in turn clarifies a section in an Act.

Rules Regulations

A rule is a statement of which can or Regulation is a restriction of what is

must or what should be done, in certain done or must be done or how should a
set of circumstances thing be done
The word "rule" is always used to refer to Regulation is the name that is given to the
the subordinate regulation made by rules e by an authorized body (bodies
virtue of powers conferred other than the state usually) to regulate its
E.g. – who are eligible to be admitted will own conduct or function
be decided by admission rules
E.g.- how the admission to take place and
admission criteria will be decided by a
university for itself
➔ The law creating efficacy of the precedent is to be found not in the mere declaration
of rules or new principles but in the actual application of them. Judicial declaration
of the law, unaccompanied by the judicial application of it, has no legal authority
whatsoever
 ➔ Direct/enacted/statute-law/written law/statute– those made by the supreme
legislative body, law that has source in legislation. All other laws coming from
subordinate authorities are Indirect/unenacted/rules/unwritten/common laws
.common laws are derived from case laws

1. COMMENCEMENT DATE - The act doesn’t always mention the date on which the
act comes into effect, so there can be instances when it comes into effect days after
being formulated and sometimes the act may empower the executive branch to give
out a notice clarifying the date for commencement
2. SAVINGS CLAUSE – Sometimes referred to as severability clause, is part of a statute
or contract that exempts a specific clause or item or ensures that the rest of the
statute will stand if one part is found invalid. This, in essence, divides the contract
into many separate parts; if one is breached, others maybe fulfilled. The invalid
portion will sometimes be written to meet legal requirements and the intent of both
parties. It is called savings clause because it saves those provisions which are not
explicitly prohibited under an act, but are permitted under other legislations. This
helps to explain the cumulative relationship between the two or more legislations if
two or more legislations are applicable on a single transaction
3. INTERPRETATION CLAUSE – It defines certain terms used in the body of statute with
the purpose to avoid the necessity of repetition in describing the subject matter and
extend the natural meaning of some words as per the statute. Exceptions can also
be provided in the form of general clause followed by “provided that”. Proviso
defines a circumstance on which general clause is not applicable and exception
provides an explanation of a circumstance out of general clause by putting a
limitation on it
 ➔ EXCEPTION AND PROVISO

Proviso: Condition required to be fulfilled in order for the provision to be applicable.

Adds contingency to the general clause
Exception: Situation/Condition, taken out of general clause, where the provision
shall not apply. Limits the scope of general clause
A proviso is a clause which is added to the statute to exempt something from
enacting clause. As such, the function of a proviso is to qualify something or to
exclude something from what is provided in the enactment which, but for proviso,
would not be within the purview of enactment.
An exception exempts, absolutely, from the operation of an engagement of an
enactment; a proviso defeats their operation, conditionally
An exception takes out of an enactment, something which would otherwise be part
of the subject-matter of it; a proviso avoids them by way of defeasance or excuse.
Proviso is always added apart from the general clause while exception always
descends from the scope of general rule itself
Positive or negative effect on the application of general clause itself
If the condition of the proviso is fulfilled, it will have a positive effect that is it will lead
to application of the general clause on that fact situation. It can have positive or
negative effect
In case of exception, the effect will be negative, leading to non - application or
limitation of the applicability of general clause itself. If exception would not have been
there, it would have been there in general rule

CONDITIONS OF STARE DECISIS - requires that first there should be

authentic reporting of court decisions and second that there should
be an established hierarchy of courts

Art. 141
. Law declared by the Supreme Court to be binding on all lower courts.
- Says Sc decisions are binding on future decisions as well
- Only the part of the judgement regarding declaration of law is binding
- Not all parts of the judgement are equally valid or have equal value
Art. 141 cannot in the very context of the doctrine of judicial precedent preclude the freedom
open to the future courts of ascertaining the ratio of a case as it sees it, after the event and
in the light of the litigation exigencies now before it which might on the level of forensic
perception of the ratio suggest dimensions which might not have been present in the mind of
the earlier court, but which necessarily must be taken into account for arriving at a view of
the ratio decidendi.

DEMERITS OF PRECEDENTS
● Complexity:
There are so many case laws as a result it
creates complexity. The judge issues his own
point of view on matter to create more
precedents. Decisions are very wide, and it
becomes burden for
the lawyers and judges working on the similar
matter to decide that what is applicable or
not. It is tedious task to find out relevant case
law on particular matter.
● Possibility of overlooking of authorities:
The immensely increasing number of cases
has an irresistible result on the judges and
the lawyers, thus there is prospect of
overlooking of authorities. It becomes not
easy to trace out the
wide variety of authorities on the very point.
occasionally, the conflicting decisions of
higher courts put the judges of lower courts
into a dilemma.
● Rigid:
The practice of judicial precedents brings
inflexibility in the system for the reason that
the lower courts are bound by decisions of
higher courts. The society is not fixed and
there is change in social, economic, and other
situation with time. Changed status may
require a different interpretation of law. In
fact, binding precedents can hold back the
advancement of law.
Mohandas Issardas And Ors. vs A.N.
Sattanathan and Ors. on 9 August,
1954
Difference between obiter Dictum and mere
observation. (SC obiter dicta are very
important, more than mere op)
This is an old judgement but the opinion has
not been overruled yet.
(Read with art 141)
- Therefore, here also emphasis is put upon
the fact that 'Obiter dicta' must lay down a
rule. It is not sufficient that they should be
merely 'dicta' Of a superior Court, but from
MERITS OF JUDICIAL
PRECEDENTS
● Consistency and predictability:
Due to the presence of judicial
precedents, the lawyers become capable
to aid their clients regarding specific
subject matter after observing the
precedents prevalent in such field. It
provides assurance that every case will be
treated and decided in a manner that is
similar to pass decisions. There is building
a consistency and predictability that
everyone can rely upon it.
● Flexibility:
Precedents carry the flexibility in judicial
system, The Supreme Court is not bound
by its own decisions. The rules
established by the Supreme Court in a
particular subject matter remain in force
except they have not been overruled by
the Supreme Court. They form the law
according to the changed conditions and
thus carry flexibility to the law.
● Save time of the courts:
The judicial precedents give great
feasibility to decrease the effort of judges
and lawyers.
Formerly the difficulty concerning a few
specific matters is resolved then it is not
required to re-argue the same question in
the future similar cases also so it will help
Basic processes in finding relevant
to save the time of
portions of a judgement
courts
-By distinguishing material facts from
unimportant facts.
-By discovering the precedents applied to
identify the court’s approach.
-By restricting the analysis to the majority
opinions.
-By reading out subsequent decisions and
considering it at several levels
the 'dicta' one must be in a position to deduce a rule laid down by the higher authority. Our
High Court has also consistently taken the same view of the 'obiter dicta' of the Privy Council.
SC obiter therefore in practicality is binding on HC.

Obiter of the case Wilkinson v. Downton

: (something important to the case but not considered when the final ruling was made)
1. The part where the court further modified the rule of deceit by further narrowing it down
by rejecting its application (in the Pasley V Freeman case) in Wilkinson v. Downton is an
example of an obiter. Tort of deceit requires that the defendant should have intended the
plaintiff to act upon his statement and the plaintiff did so to his detriment, for which
detriment he now claims damages. The compensation received of 10 pounds by Wilkinson
was for the money she spent as railway fares relying on defendant’s statement and not for
violent suffering which was a spontaneous reaction to statement. So, the judge didn’t rely on
Mrs. Wilkinson getting ill as a base for tortious compensation. So this factor of distinction of
rule of deceit by legal reasoning is obiter.
2. Whether mental harm is considered in future cases as part of physical harm will determine
whether mental harm constitutes ratio in future case, as of now it isn’t an obiter
PRECEDENT POINTS
➔ Precedent is one of the sources of law. The judgements passed by some of the
learned jurists became another significant source of law.
➔ When there is no legislature on particular point which arises in changing
conditions, the judges depend on their own sense of right and wrong and
decide the disputes. Such decisions become authority or guide for subsequent
cases of a similar nature and they are called precedents.
➔ Judicial precedents are retrospective in nature. It is always ready to be, used.
Precedent is otherwise called case law judicial decision judge made law it is the
sources of law. The decision is applicable per se from the time it was initially
made.
➔ Article 141 of Constitution of India says that SC decisions are binding on future
decisions as well and that Judicial Precedents can be a source of law.
➔ This is not the case with International Court of Justice. ICJ’s ruling is binding
only on the present parties in the case and not on all the courts.
➔ As long as the reasoning of the judgement is sound and reasonable, the
decision is binding.
➔ The general rule of the judgement is binding. The same general rule (general
proposition of law) cannot be applied in all the cases with similar facts. Also,
there may be numerous general rules and all of them can come to the same
proposition / judgement.
➔ In both of the models above, opinions are given more importance. But what is
more important is the law and the judgement. Judge’s opinion cannot be
rejected altogether.
➔ Judge’s opinion is important for selecting the material facts. Ultimate decision
and facts matter. All facts should be similar in this model in order to apply the
third model.
 ➔ It is the best possible model – the material fact model. It suggests that,
whenever a judgement is passed, it is to be checked whether the material facts
of the previous case (precedent) are similar to the case at hand. If they are
similar, then the
precedent is to be
followed. NON-OBSTANATE – notwithstanding
➔ Therefore, the materials anything contained. That means that this
facts and the ratio of the clause empowers the legislation or a
case, ultimate provision in which it contains, to override
judgement is important. the effects of any other legal provisions
➔ Concurrent decisions – contrary, to this under the same law or any
where different material other law
facts and general facts
are used and still the
judgement is same.
➔ Suppose, MF1 + MF2 – J MF3 + MF4 – J MF5 + MF6 – J

Principles of Precedent
1. Ratio decidendi Reason for the decision - An authoritative principle of a judicial decision. It
contains the principle of law formulated by a judge; it is essential for the decision of a case. It
has force of law and is binding on the courts.
2. Ration decidendi is a principle of law which forms the basis of decision in a particular case.
3. Obiter dictum Something said by the judge, does not have any binding authority. Judge may
declare some general principles relating to law but that may be unnecessary and irrelevant to
the issues before him. Those unnecessary statements of law which lay down a rule is called
Obiter dictum.
4. Stare decisis: Means let the decision stand in its rightful place. During 17th century a
progress made in the law reporting system. Reporting of the decisions of the court Act to
stare decisis a principle of the law which has become settled by a series of decisions is
generally binding on the courts and should be followed in similar cases. It is based on
expediency and public policy.
5. Prospective overruling: Reversing the lower court's decision by Supreme Court can overrule
their own earlier decisions by another bench of judges consisting of a greater number of
judges than previous one. It is a modern trend which enables the court to correct its errors
without affecting its past transactions. When SC prospectively overrules it means that the
decision remains valid till the point the order to make it invalid was given and will be invalid
from now on. Example law A enforced September 2, 2019, declared invalid on September 2,
2021 so will be valid till September 2, 2021, after that invalid. Based on the principle that
wrong decision will not continue to be binding in name of precedent. HC can’t overrule
prospectively. Golaknath overruled Sajjan Singh and shankari devi and was overruled by
kesvananda Bharti.
PER INCURIUM
Sometimes SCs give out decisions not taking into account which it should have considered as
they were important in arriving at the decision that is when the court forgets to take rule of
law into consideration, then the decision is said to be rendered per in curium and this decision
is not binding on the lower courts but if it is just a wrong interpretation it is binding on lower
courts and can’t be rejected just because it is illogical. Similarly, if a relevant prior decision is
not cited while taking the decision, it must be assumed that the decision is per in curium
SUB SILENTIO
A decision is passed sub silentio it means that when the particular point of law involved in the
decision is not perceived by the court or present to its mind which should have been taken
into consideration.
Example – the court may consciously decide in favour of one party because of point A, which
it considers and pronounces upon. Logically, the court should not have decided in favour of
the particular party unless it also decided point B in his favour; but point B was not considered
by the court. So, decision is not an authority on point B and point B has been passed sub
silentio

A good illustration is Gerard v. Worth of Paris – a

discharged employee, who had obtained damages
PRECEDENT POINTS against the company for wrongful dismissal, applied for
FROM SALMOND a garnishee order on a bank account standing in the
.) the doctrine of
name of the liquidator of the company. The only point
precedent has two argued was the on the question of the priority of
meaning – the loose claimant’s debt and the order was given by court. No
meaning (precedents consideration was made on the point whether a
which are reported and garnishee order could properly be made in the manner
may be cited and will
mentioned and so this point was said to be passed sub
probably be followed by
silentio by the judge
the lower courts) and the
strict meaning (the
authoritative precedents and must be followed)
.) the practice is necessary to secure the certainty of law, predictability of decisions being
more important than approximation to an ideal
.) a court can refuse the authority of coordinate courts and subordinate courts, SC higher
bench can overrule the lower bench and SC itself can deviate from its own prior decision but
only when it is extremely important to do so ad that too with specified reasons
.) authoritative precedents are legal sources and persuasive are historical sources which they
take into consideration and attach weight to when they think it deserves. Foreign judgements,
the decisions of superior courts in other portions of commonwealth of nations, judgements
of the privy council when sitting as the final court of appeal, judicial dicta are all persuasive

DISREGARDING A PRECEDENT
➔ The court to which it is cited may either overrule it or merely refuse to follow
it
➔ Overruling is an act of superior jurisdiction. A precedent is overruled is
definitely and formally null and void and a new principle is substituted
➔ A refusal to follow a precedent is an act of a coordinate court. Two courts of
equal jurisdiction cannot overrule each-others’ decisions. When refused to
follow, the two-stand side by side in conflict and no new principle is
substituted. The superior court then may overrule one of the decisions and
sanction the other as good
LEGISLATION POINTS ON SALMOND
➔ Difference between law by legislature and precedents by judiciary - legislation
is laying down of legal rules by a sovereign or subordinate legislator for future
and without any reference to a dispute; the courts, in so far as they create law,
can do so only in application to the cases and only as much necessary for
solution.
➔ Concept of sovereignty – question of law and not fact. For the sovereign is not
so much the body enjoying obedience in fact as the body whose decrees
qualify as laws. The existence of sovereign then entails the existence of rules
of law. These will identify –
(a) identity and composition of sovereign
(b) procedure to legislate
(c) area within which to legislate

CRIMINAL JURISDICTION
SUPREME COURT
➔ Direct appeal through writ jurisdiction – article 32
➔ Criminal jurisdiction – article 134 – 44th amendment - HC has to grant a
certificate in all the three 134a, b (matter of right) and c (matter of discretion),
but in A and B, it has to compulsorily grant it but in c it is up to the discretion
of HC
➔ Article 134 - Appellate jurisdiction of Supreme Court in regard to
criminal matters
• (a) An appeal shall lie to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a High Court in the territory of India if the High
 Court has on appeal reversed an order of acquittal of an accused person and
sentenced him to death; or
• (b) has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to
death; or
• (c) certifies under Article 134A that the case is a fit one for appeal to the Supreme
Court: Provided that an appeal under sub clause (c) shall lie subject to such
provisions as may be made in that behalf under clause (1) of Article 145 and to such
conditions as the High Court may establish or require
➔ 134A. Certificate for appeal to the Supreme Court - Every High Court,
passing or making a judgment, decree, final order, or sentence, referred to in
clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article
134 (all the sub-clauses)
• (a) may, if it deems fit so to do, on its own motion; and Right to appeal – not very free – has
• (b) shall, if an oral application is made, by or on behalf constraints
of the party aggrieved, immediately after the passing or
making of such judgment, decree, final order or Right to sue – much free – part of
sentence, determine, as soon as may be after such expression
passing or making, the question whether a certificate of
the nature referred to in clause (1) of Article 132, or clause (1) of Article 133 or, as
the case may be, sub clause (c) of clause (1) of Article 134, may be given in respect
of that case
➔ 136. Special leave to appeal by the Supreme Court
• (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India – appeal against any order or judgement
• (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces – prevails even over 134A

General power of the courts depends on the provisions provided and their scope. So, if law
provided for penalty, it can impose it. Can punish the individuals based on what law says
Power is on executives to implement the provisions by passing order and on judiciary to
take certain actions. Criminal courts empower judiciary to implement laws

OTHER COURTS

➔ Section 6 – classes of criminal courts

Besides the High Courts and the Courts constituted under any law, other than this Code, there
shall be, in every State, the following classes of Criminal Courts, namely;
1. Courts of Session;
2. Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan
Magistrate;
3. Judicial Magistrate of the second class; and
4. Executive Magistrates.
 ➔ Territorially speaking, every state has a HC, which in turn has its branches in
different areas of that area in which HC of the state is situated.
HC in Rajasthan > in Jodhpur District > bench in Jaipur
State

(Sessions court) – additional sessions judge, assistant SJ, SJ

Session division
(Judicial magistrate court 1st and 2nd class) – chief JM, JM

Districts Or
(Metropolitan area court) – chief metropolitan magistrate, MJ

Sub-divisions

➔ Section 7 – territorial divisions

• Every State shall be a sessions division or shall consist of sessions divisions; and every
session division shall, for the purposes of this Code, be a district or consist of districts;
Provided that every metropolitan area shall, for the said purposes, be a separate sessions
division and district.
• The State Government may, after consultation with the High Court, alter the limits or
the number of such divisions and districts.
• The State Government may, after consultation with the High Court, divide any district
into sub-divisions and may alter the limits or the number of such sub-divisions.
• The sessions divisions, districts and sub-divisions existing in a State at the
commencement of this Code, shall be deemed to have been formed under this section.
➔ Section 8 – metropolitan areas
• The State Government may, by notification, declare that, as from such date as may be
specified in the notification, any area in the State comprising a city or town whose
population exceeds one million shall be a metropolitan area for the purposes of this
Code.

➔ Section 9 – court of session

• The State Government shall establish a Court of Session for every session division.
• Every Court of Session shall be presided over by a Judge, to be appointed by the High
Court.
• The High Court may also appoint Additional Sessions Judges and Assistant Sessions
Judges to exercise jurisdiction in a Court of Session.
• The Sessions Judge of one sessions division may be appointed by the High Court to be
also an Additional Sessions Judge of another division, and in such case, he may sit for
the disposal of cases at such place or places in the other division as the High Court may
direct.
• Where the office of the Sessions Judge is vacant, the High Court may make
arrangements for the disposal of any urgent application which is, or may be, made or
pending before such Court of Session by an Additional or Assistant Sessions Judge, or,
if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in
the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal
with any such application.
• The Court of Sessions shall ordinarily hold its sitting at such place or places as the High
Court may, by notification, specify;
but, if, in any particular case, the Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to hold its sittings at any other place
in the sessions division, it may, with the consent of the prosecution and the accused, sit
at that place for the disposal of the case or the examination of any witness or witnesses
therein.
➔ Section 10 – subordination of assistant session judges
• All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose
Court they exercise jurisdiction. – assistant subordinate to additional and session judges
• The Sessions Judges may, from time to time, make rules consistent with this Code,
as to the distribution of business among such Assistant Sessions Judges.
• The Sessions Judge may also make provision for the disposal of any urgent
application, in the event of his absence or inability to act, by an Additional or Assistant
Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief
Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have
jurisdiction to deal with any such application.
➔ Section 11 – courts of judicial magistrate
• In every district (not being a metropolitan area), there shall be established as many
Courts of Judicial Magistrates of the first class and of the second class, and at such
places, as the State Government may, after consultation with the High Court, by
notification, specify;
Provided that the State Government may, after consultation with the High Court,
establish, for any local area, one or more Special Courts of Judicial Magistrate of the
first class or of the second class to try any particular case or particular class of cases,
and where any such Special Court is established, no other Court of Magistrate in the
local area shall have jurisdiction to try any case or class of cases for the trial of which
such Special Court of Judicial Magistrate has been established.
• The presiding officers of such Courts shall be appointed by the High Courts.
• The High Court may, whenever it appears to it to be expedient or necessary, confer the
powers of a Judicial Magistrate of the first class or of the second class on any member
of the Judicial Service of the State, functioning as a Judge in a Civil Court.

➔ Section 12 – chief Judicial magistrate and additional JM

• In every district (not being a metropolitan area), the High Court shall appoint a Judicial
Magistrate of the first class to the Chief Judicial Magistrate.
• The High Court may appoint any Judicial Magistrate of the first class to be an
Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the
powers of a Chief Judicial Magistrate under this Code or under any other law for the
time being in force as the High Court may direct.
• The High Court may designate any Judicial Magistrate of the first class in any sub-
division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities
specified in this section as occasion requires.
• Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional
Judicial Magistrate shall also have and exercise, such powers of supervision and control
over the work of the Judicial Magistrates (other than Additional Chief Judicial
Magistrates) in the sub-division as the High Court may, by general or special order,
specify in this behalf
 ➔ Section 16 – courts of metropolitan magistrates
• In every metropolitan area, there shall be established as many Courts of Metropolitan
Magistrates, and at such places, as the State Government may, after consultation with
the High Court, by notification, specify.
• The presiding officers of such Courts shall be appointed by the High Court.
• The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout
the metropolitan area.

➔ Judicial magistrate can provide prison of 7 years

➔ Assistant session judge – 10 years prison
➔ Session judge – death sentence
➔ Metropolitan magistrate – 7 years prison
SC (country)
(Any sentence authorized by law)

HC (state)
(Sentence authorized by law)

Sessions court (sessions)

(Session judge, add. Session judge – any sentence by law; death sentence subject to
confirmation by HC)

Assistant session Chief metropolitan Chief judicial

judge - 10 years magistrate or add magistrate or add CJM
prison CMM and assistant
(7 years prison)
MM
(Subordinate to
(Different court in
session and add (7 years prison)
sessions)
session judge)
(Different court in
sessions)
Sub-divisional JM; 3 years
prison, 10000 fines

Special JM of 1st Special JM of 2nd

class; 3 years class; 1 year
prison, 10000 prison, 5000 fines
fines
 ➔ Constitution – talks about SC or HC jurisdiction
➔ SC – appellate, 2nd order appeal – more constraints
➔ HC – 1st order appeal
➔ Const. doesn’t make mention of sessions court
➔ Art 134 (c) – even if there is acquittal by HC, can appeal to SC, subject to
determination of HC that matter is fit enough for appeal that is there is a
substantive question of law involved and not fact; in question of fact, appeal
can be under (a) and (b) – matter of right
➔ Art 134A – HC to grant certificate in all (a), (b), (c) of art 134 (1)
SPECIAL LEAVE PETITION (ARTICLE 136)
➔ The higher the hierarchy goes, more question of law gains importance and more
restrictions and difference culled pot between law and fact questions
➔ “may” is the symbol of discretion of SC in art 136
➔ Art 134 – only matters from HC are passed to SC and appeal can be against only
judgement in this and there are limitations like subject to HC consideration of
matter being fit enough to be appealed
➔ But under art 136 – any matter from any court of India can be taken up by SC –
and against any order, appeal, decree, judgement, sentence, determination,
intermediary order and there are no limitations
➔ SC provides for guidelines for SLP
• Looks if there is any alternative present with the party
• It is residuary power – when no other course is available
• Grievous injustice, grave misinterpretation of legal
SC JURISDICTION
provision
• If only question of fact is involved, not taken up Appellate – criminal art 134
➔ 2 things under art 136 Normal original – art 131
• Filing of SLP
• Hearing matter by SC that is being challenged – dwelling SLP – civil and criminal art 136
into facts and merits of the case Extraordinary – writ – art 32
➔ When SLP is accepted, it turns into appeal after
deliberations and then merits and facts are looked Appellate for civil – art 133
into, then moves on to give decision, which will be
binding under art 141 as any other judgement of the
SC
➔ There are certain legislations which provide for final decision not to be further
appealed – railway tribunal having final authority over a matter but art 136, a
residuary power, will still prevail. Can’t appeal under ordinary jurisdiction but
under art 136 as SLP

EXECUTIVE MAGISTRATE
Section 3 (4) of c.r.p.c
Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to
matters—
1. which involve the appreciation or shifting of evidence or the formulation of any
decision which exposes any person to any punishment or penalty or detention in custody
 pending investigation, inquiry or trial or would have the effect of sending him for trial
before any Court, they shall, subject to the provisions of this Code, be exercisable by a
Judicial Magistrate; or
2. which are administrative or executive in nature, such as, the granting of a licence, the
suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from
a prosecution, they shall, subject as aforesaid, be exercisable by an Executive
Magistrate
➔ if there is a threat that a person can ruin law and order, a security bond can be taken
from that person by EM -these are under control of State govt. due to executive
action.
➔ District magistrates are under category of executive magistrates
➔ HC supervises or controls judicial magistrates
 If judiciary decides on a
certain matter, then that
A. HOW DOES A TRIAL PROCEED? same matter cannot be
taken up by the same
Under common law system, proceedings can be divided as: parties in front of the
(1) Pre – proceeding stage same court – this is the
(2) Proceeding stage principle of res judicata –
this happens only when a
➔ (1) When complaint is filed and received by the police, it
certain decision has been
undertakes investigation and enquiry, examines evidence and
pronounced that is either
forms a report conviction or acquittal
➔ On the basis of investigation, an accused is taken into custody has been given
➔ That accused has to be presented before the Judicial Magistrate
within 24 hours In matter of taking
cognizance of offence, it
➔ Now the judicial magistrate applies his mind on the police report
can be any judicial
so submitted – this is called taking cognizance of the offence
magistrate – CJM, JM, JM
(SECTION 190) This he does: (a) upon receiving complaint of of 1st class, JM of 2nd class
facts of offence – they just have to be at
(b) upon police report of such an offence (proceedings have not the same level.
yet started
If a matter is out of the
jurisdiction of JM, then
The cognizance of an offence, it is not taken by sessions court but cognizance is taken by
by JM only, always, which a court lower in hierarchy. But if the law him however proceedings
begin with sessions court,
involved is complicated and offence is of grievous nature, then JM
after JM decides whether
can commit the case to the top court by a special order
the matter is to be
dismissed or not.
However, in case of
➔ Now the JM examines the complainant simultaneously that is criminal defamation, the
while taking cognizance of the offence. Here he looks if there is cognizance is also taken
a prima facie case being made or not, he takes into account that by sessions court
whether the person is being charged with an offence whose
conditions have been taken into consideration or not that is
whether it is a fit case or not and if grounds of the offence are looked into or not. At
this stage, he doesn’t take action against anyone and just looks into different aspects
of the case made (SECTION 200)
➔ After all of this, JM decides whether the matter needs to be dismissed or not and if he
decides to dismiss the matter then he has to record his reasons for doing so (SECTION
203 – dismissal of complaint)
 ➔ (2) Now if JM
thinks that there In case of death penalty or
are sufficient severe degree of punishment,
grounds for proceedings can begin before the EXAMPLES
proceedings to sessions court also
take place then
the proceedings begin in front of the JM only (SECTION 204). ➔ Example; A in
➔ Now if the JM dismisses the matter under section 203, then contract with B
proceedings do not begin, but the case can be reopened before that if now dispute
the same court as the proceedings had not started till then arises, we cannot
➔ Collection of evidences relating to the case commences at the refer to HC of
pre – proceedings stage and admissibility – relevance of the Rajasthan, this
evidence is done at the proceedings stage while persecuting provision would be
and court decides whether the evidences are relevant or not. invalid as it ousts
the jurisdiction of a
court.
B. JURISDICTION ➔ Like for example,
Rajasthan HC has
Question whether a court has power/authority to determine/decide
jurisdiction on
on a certain matter or not on the basis of various factors:
matters pertaining
➔ Kind of subject matter the court can entertain. Competition to breach of
tribunal determines matters on competition matters, JM contract. A in
doesn’t have power to deal with a murder case; depending contract with B
upon subject matter and say that can’t
➔ Pecuniary jurisdiction, when a matter pertaining to a certain go to HC Rajasthan
amount can be dealt with; district court dealing with matters of which is
1 lakh or less impossible, but
➔ Jurisdiction of court is decided on law and not due to consent now they enter
of parties, at least at municipal level; it is because the law has into contract with
conferred power upon that court to deal with a particular arbitration clause
matter, no matter whether we have agreed to it or not. When saying that we can
a particular court has a certain jurisdiction over a certain go to them in case
matter, we cannot consent to oust it out of it and we can’t of breech and they
also confer a new jurisdiction upon a court. (a)What we can do can decide with A
is, that if on a particular matter, law provides jurisdiction to and B presence
more than one court, then the parties can choose which court and they can go to
to refer to and this is not equivalent to conferring a new Rajasthan HC also
jurisdiction. (b)What we can do is confer the jurisdiction on a and both
specific tribunal like an arbitration tribunal. Sometimes law can proceedings can go
provide an exclusive jurisdiction to a court also or to a tribunal together also.
(example railway tribunal). Refer to examples in text box
➔ When a jurisdiction is challenged, then court decides its own
jurisdiction; it can only define its jurisdiction in consonance
 with law by interpreting law and not modify or elaborate its jurisdiction.

C. TRADITIONAL DISTIONCTION
➔ When there is jurisdictional error in a decision, that it doesn’t have the power to
decide over a certain matter, the decision so given will be rendered invalid, null and
void, traditionally speaking. So there has to be difference to be between: jurisdictional
error (when court defines its own jurisdiction wrongly) and error in interpretation of
law (error of interpretation of law within jurisdiction). Error in law remains to be valid
unless appealed but error in jurisdiction is null and void
➔ But it is not always easy to maintain this distinction, it is possible that court is
conferred with power to deal with a matter but while dealing it forgoes some
provisions of law.

EXAMPLE – Rajasthan HC does not have authority D. LIMITATIONS

to decide on specific performance of contract and
it erroneously assumes that it does have Mathai v. Varkey Varkey
jurisdiction – error in jurisdiction so even though it ➔ Court gave its decision on
has interpreted the provisions of law correctly, the title of property, but one
decision will hold no value and in future also if not party went to file a fresh suit
challenged, it will be null and void. Now let’s say HC and alleged later that the suit
does have jurisdiction over the same matter but it was time barred, that is the time
misinterprets the provisions of law and then gives given for filing case had been
decision but that doesn’t mean it won’t bind the transgressed so decision made
parties so till the time it is not challenged, it will with respect to title of property
hold value – error of law within jurisdiction. was to be declared null and void
➔ Whether transgressing
the time period of giving judgement was to be the ground for declaring it null and void
and was it an error of jurisdiction or of law.
➔ It was held court had the authority to decide upon title of land, subject matter
jurisdiction and territorial disputes jurisdiction and pecuniary jurisdiction
➔ If the court has erred in interpreting the time period (limitation period) it is to be the
error of law, suit was filed beyond the time period that was prescribed for
➔ Mere transgression of limitation period is not invalid unless it has been challenged
LIMITATION ACT provides for a maximum time
limit up to which you can file a case. If you
Example - A in contract with
transgress the time, the suit can’t be entertained,
it does not mean that court doesn’t have B. so contract gives A some
jurisdiction. Right to enforce this primary right contractual right to obtain a
through court has been lapsed but that doesn’t pen from B and if pen is not
mean you have lost primary right. given, A can enforce his right
• It is not always easy to distinguish between with help of suit, so, a
error in jurisdiction and error in law primary right is getting pen
Example 1 – a subject matter of general matter and another right is right to
pertaining to robbery and a court has jurisdiction enforce the primary right. If
and can give penalty also but while discussing the say limitation period is of 5
case, it goes on to take up evidence which it should years, and you have lost the
not have taken as it is not within its purview so right to enforce your primary
now it becomes difficult to determine whether it
right to get the pen through
was error in jurisdiction or of law
court but you still have
Example 2 – court did have all necessary primary right granted to you
jurisdictions but while adjudicating, it did not take
by the contract
into consideration the principle of natural justice,
so it becomes difficult to determine whether it was
error in jurisdiction or of law

• Determination of jurisdiction happens at the time of commencement of

proceedings, before the court goes on to conduct the enquiries into the merits of
the case
• Question - So, does that mean that once the enquiry has begun, whatever error now
occurs, thereafter the commencement of proceedings, cannot be an error of
jurisdiction? – there are some matters where jurisdiction and law error are hard to
distinguish between – sometimes there are errors in law which amount to error in
jurisdiction and some do not affect the jurisdiction. Error of jurisdiction can arise if you
wrongly interpret the law that confers the authority upon you, so error of jurisdiction
arises out of error of law only.
➔ Even in matters of error in jurisdiction – maybe because of lack of jurisdiction
that is court did not have authority
➔ Or maybe due to excessive jurisdiction that is transgressing the limits of
jurisdiction which it has, deliberated upon matter that was not under its
authority. Court is competent enough to take up the matter but still commits
a fault when it exceeds the confines.
➔ This distinction because after commencement when there is an error that can
be a jurisdictional error and that would arise out of excessive jurisdiction
• Distinction between right to appellate jurisdiction and revisional jurisdiction
 ➔ If district court gives wrong decision in civil cases, it can be appealed before HC
– can take up appellate jurisdiction – re-hearing every aspect of the case and
HC decision will overrule the earlier lower courts judgement and now ratio of
this case will prevail; or in revisional jurisdiction (section 115) – it doesn’t re-
hear the case, it just says the district court judgement was wrong and looks
whether district court had jurisdiction or not and won’t reverse the order. Only
revises, simplified.
➔ Everything is matter of error of law, but some legal errors affect jurisdiction,
some do not, if they affect jurisdiction, then appealing to the revisional
jurisdiction of the HC where it revises the jurisdiction of district court. The
court may either use procedure improperly (material irregularity leading to
excessive jurisdiction) or it may falter out at its reasoning (error of law not
amounting to error of jurisdiction)

E. CIVIL HIERARCHY OF COURTS

District judge includes civil judge and sessions judge also.
SUPREME COURT
➔ In civil matters also, there is SC and it has some jurisdiction over civil matters
under article 103 for 2nd order appeal
➔ 2nd appeal jurisdiction, appellate jurisdiction of SC in case of civil matters –
article 133 – HC discretion is required and hence much more restrictive when
compared to criminal matters under article 134. Determination that
substantial question of law is there and HC has to determine whether it is a fit
case to be appealed before SC or not (same as article 134) but clause (3) also
has to be fulfilled. In civil matters, there is a concept of bench - one bench HC
or a larger bench HC. Once if a matter is taken up before one bench HC, then
if not satisfied you can appeal to higher bench of the same HC (intra-appeal)
and then take it up to SC but from the one bench HC, it cannot be straight
away taken up to the SC unless the parliament by law provided for it.
➔ Original jurisdiction (article 131) - between two or more states, government-
state, government + state - state
➔ writ jurisdiction (article 32) - (extraordinary jurisdiction, original jurisdiction
pertaining to writs issues)
➔ article 136 – to approach SC – neutral for both civil and criminal matters
through SLP. Non-obstanate law, it will prevail irrespective of article 133 and
article 133(3) also – appellate jurisdiction
➔ some more ground is required in order to prove substantial question of law to
prove civil matters. Distinction between question of law and fact is important

Article 132 - Appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High
Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under Article 134A that the case involves a substantial question of law as to the
interpretation of this Constitution
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided Explanation For
the purposes of this article, the expression final order includes an order declaring an issue
which, if decided in favour of the appellant, would be sufficient for the final disposal of the
case
Article 133 in The Constitution of India 1949 Appellate jurisdiction of Supreme Court in
appeals from High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil
proceeding of a High Court in the territory of India if the High Court certifies under Article
134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme
Court
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under
clause (1) may urge as one of the grounds in such appeal that a substantial question of law as
to the interpretation of this Constitution has been wrongly decided
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one
Judge of a High Court

LOWER COURTS

➔ SECTION 3 of code of civil procedure (CPC) – subordination of courts- district

court subordinate to HC, civil court (CC) below district court (DC) and every
court of small causes lower to HC and DC
➔ When jurisdiction is demarcated, it is for every state government to decide it
for DC, CC of its states and not by CPC
 ➔ No pecuniary limitation to HC, SC any matter can
be taken up too Example – small causes court
➔ Section 6 – pecuniary jurisdiction (PJ) – CoPC of Rajasthan has PJ of RS
doesn’t change the PJ
5,000 which is not defined by
➔ When filing cases on territorial bases, CPC provides
for general rules – section 16 to 20 (territorial
CPC, now CPC allows it to
jurisdiction of any court) – where the cause of take up matters of contract.
action arises is the principle Now if issue of 5500 arises
➔ Example dispute of title of land – place of land will between parties regarding
determine the territorial jurisdiction. contract, it cannot be taken
➔ section 16 – suits to be situated where subject
by the above court – CPC
matter situates, immovable property
➔ Section 19 – suits for wrongs to persons or
cannot transgress PJ.
movables, wherever wrong was committed
➔ Court of local jurisdiction (wherever defendants resides) decides upon in cases
of immovable property
➔ If two parties reside at 2 different places, then any place with permission of
court or wherever cause of action arises
➔ Section 20 – residuary matters, not
covered in section 17 and 19
Hierarchy for civil matters: ➔ Cause of action – every fact of dispute is
1. SC (appellate jurisdiction, article not equally material, only certain go on to
133, 136) decide rights and obligations of the parties and
2. HC (no pecuniary limit) are relevant for the purposes for which relief is
3. District court (civil court) to be granted
a. District court (senior div.) ➔ Example - D resides in Bombay, cause of
b. District judge (junior div.) action in Bangalore – matter can be
4. Munsiff courts and small causes approached in any of the 2 courts territoriality
court ➔ It acts to determine the cause of action in
case of telephonic conversation scam

3 basic principles of territorial
jurisdiction
1. Immovable – location
2. Wrong to person or
movables – place where
wrong done
3. Any other matter –
defendant’s residence or
any of the defendant’s
residence or cause of
action
BASIC ASPECTS
➔ Right to file a suit is different from right
to file an appeal
• Right to file a suit – courts have jurisdiction to try all
suits of civil matters except suits of which their cognizance is
expressly or impliedly barred – SECTION 9 – inherited right –
not dependent upon an explicit conferment of a legislation –
restrictions are less
 A party – decree
• Right to file an appeal – especially 2nd order holder – in
Example – A and B dispute, X
appeal – depends upon how legislation is
is judge-contract, A done whose favour it
worded/structured – more restrictions are there
breach as seen from ➔ Article 134 – term ‘decree’ is not is given. Other
agreement, A had to sell pen present party who has
to B and he did not (reason), ➔ When a judgement is given in civil the obligation to
so A is under an obligation to matters, there are different portions of it: fulfil. A and B
deliver pen to B (formal • Court gives reasons and then a formal decision dispute. A to sell
imposing rights and obligations
decision) pen and now has
• This formal declaration of rights and
obligations – decree in civil matters to perform it,
• Reasoning + decision = judgement now decision
• Example 1 – suit in regards to maintenance – divorce – whether wife given and still A
is to be maintained or not – divorce valid or not, so, look into refuses so, B can
whether marriage valid or not – with respect to marriage it is get the decree
deciding the rights and obligations – deciding upon validity of
executed under
marriage is a preliminary decree
• Example 2 – partition in case of property matter – joint property –
the execution
rights to sever it out is partition dispute - court first determines procedure – to
respective shares of the parties – declaration of shares leading to get the decree
declaration of rights and obligations is a preliminary decree (formal
• Stay order enables you to protect the subject matter so that in future expression)
rights and obligations can be declared and does not per se does the
executed – that
declaration
• Definition clause of CPC – clause 2 – decree means the formal
is why
expression of an adjudication which, so far as regards the court distinction
expressing it, conclusively determines the rights of the parties with between
regard to all or any of the matters in controversy in the suit and may judgement ad
either be preliminary or final. It shall be deemed to include the decree is
rejection of a plaint and the determination of any question within
necessary
section 144.
• Judgement definition – clause 9 – statement given by the judge on
(judgement in
the grounds of a decree or an order criminal matters
• Clause 14 – order means the formal expression of any decision of a includes
civil court which is not a decree reasoning, and
sentence
Stare decisis – stay by the finality that the decision has arrived at includes
RES JUDICATA punishment and
hence distinction
➔ Principle of respecting the finality of final decision – both the
is made)
concepts – stare decisis and this are of same finally
➔ If a particular matter is decided on by a competent court
between two parties, it cannot be brought up again by the
 same parties before the same court, not in an appellate from, but in a form of
a total new case, it cannot be taken up again
➔ The difference between the 2 is that precedent binds the parties and other
members too along with the parties, in here, it binds only the same parties
between whom the dispute was decided.
➔ Section 11 of CPC talks about res judicata under chapter of jurisdiction –
in No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit
between the same parties, or between parties under whom they or any of them
claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
➔ Instituting a suit is not allowed subsequently
➔ Need of res judicata - conceived in the larger public interest which requires
that all litigations must sooner than later, come to an end. The principle is also
founded on justice, equity and good conscience which requires that a party
which has once succeeded on an issue should not be harassed by multiplicity of
proceedings involving the same issue. Embodies the rule of conclusiveness and
operates as a bar to try the same issue once again and thereby, avoids vexatious
litigation.
➔ It is based on 3 maxims:
1. No man should be vexed twice for the same cause
2. It is in the interest of the state that there should be an end
to litigation
3. A judicial decision must be accepted as correct
➔ The doctrine of res judicata also applies to petition filed under article 32 with
the SC – if the petition under article 226 with HC has been dismissed on merits,
such decision would operate as res judicata, barring a petition in SC under
article 32
STAY OF PROCEEDING
➔ A subject matter being adjudicated upon
before court 1 court deemed to have
➔ Simultaneously, new proceeding started in a something happened even
competent court 2 on the same matter
though it did not. The court
➔ Court 2 then puts a stay on proceedings, wait
for the court 1 to give its order after deemed that the fact was
proceedings raised in previous case in
➔ Instituting a suit is allowed as long as decision order to apply res judicata –
is not given artificial construction of res
➔ Explanation IV of section 11 – not judicata – constructive res
expanding or limiting the general rule, just
judicata
explaining – any matter which might and
ought to have been made ground of defence or
attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in such suit – EXAMPLE
- relief is claimed for by one party under suit, in order to claim for this, party
 provides for certain grounds and other party also on the bases of the grounds
provided by one party, will raise objections. But one party did not raise a ground
that was important to claim the relief and the court has decided upon the matter
based on grounds presented. Now one party cannot raise that missed out ground
in subsequent case for same subject matter, and the court will construct it to be
res judicata – court deemed to have it happened even though it did not. the
court deemed that the fact was raised in previous case in order to apply res
judicata – artificial construction
➔ In stare decisis, even if a ground is not raised, it passes sub-silentio but in
res judicata, we assume court has decided upon it because in res judicata we
focus on the principle of law to be declared in explicit way which can be done
only when court pronounces on a matter and focus in stare decisis is on
providing relief
➔ A and B in dispute over title of mobile – A wants to prove that he should have
it and B wants to prove that A should not have it – A can say either that he is
owner or that he was the mortgagee – 2 different grounds – if he goes to argue
about ownership but fails to do so about mortgagee – now if B raises case and
says that B is mortgagee, court will say that this was not raised before so
constructive res judicata. But now C and D raise matter over different mobile
and C says he is mortgagee, he will get it as previous case was passed sub-
silentio on this argument
➔ In general, law at times creates – legal fiction – irrespective of what happens in
physical world – deeming provision is a kind of legal fiction – companies and
corp. are artificial persons or legal fiction – law presumes dowry death if death
of wife within some specified time occurs, this is also legal fiction
➔ Legal presumption is an inference, deeming provision is not
➔ Similarities between res judicata and stare decisis
1. both relate to adjudication of matters
2. both deal with final determination and have binding
effect in future litigation
3. results of final decisions of a competent court
4. based on law and public policy
➔ differences between stare decisis and res judicata
1. RS based upon conclusiveness of judgement and
adjudication of prior findings; SD based on legal
principles
2. RS binds parties and privies; SD operates between
strangers and bars the courts from giving a contrary
opinion on points of law already decided
3. RS touches specific controversy; SD touches legal
principles
➔ Conditions for a matter to be qualified as res judicata
1. The matter directly and substantially in issue in the
subsequent suit or the issue must be the same matter
which was directly and substantially I issue either
actually or constructively
 2. Former suit must have been a suit between the same
parties
3. Parties must have been litigating under the same title in
the previous suit
4. The matter must have been heard and finally decided in
the previous suit
➔ 3 situations when subject matter to be taken res judicata
1. If by any judgement or order any matter in issue has been
directly and substantially decided, decision operates as
RD and bars the further proceedings
2. When by the judgement, a decision of a particular issue
is implicit in it, that is, it must have been deemed to be
necessarily decided by implication
3. When a matter which ought to have been made a ground
of defence in former suit but wasn’t, would be considered
res judicata and not to be taken up in subsequent
proceedings

CUSTOMS
Customs, as opposed to legislations, there are certain practices which on account of being
general to entire realm, want to have a force of law. They come from the general realm itself.
Source in both domestic and international realm.
Every practice not a legal custom
Qualification of customary law:
➔ It must be a practice for a very long time
➔ Must be consistent with other rules of community and not violative
➔ Should be certain in nature, practiced in a continuous sense
➔ Reasonable in nature, not to violate the ethos of society
Transition period:
As far as common law is concerned, developed in Eurasian part of European continent. During
late 13th and early 14th century, the continent was divided into counties and shires and no
uniform system to regulate own conduct. So, as opposed to having parliament, king’s sole
purpose predominantly was that of resolving conflicts of counties and shires, formulate his own
court for resolving between members of community. People would come to resolve disputes
and, in that process, general process evolved. The courts had to have something to rely on to
solve disputes, so, they relied on customs prevalent in that community
Common law system developed due to interplay of customary practices prevalent for the
purposes of resolving disputes between the parties.
Two sets of rules to rely on during 16th-17th century– written (lex scripta) and unwritten (lex
non-scripta). Legislature started incorporating customary practices in their legal rules. Role of
customary practices has reduced though not vanished
Role of custom so that they have legal effect
International community has own set of rules too (general)
➔ ICJ resolves disputes of international nature, one of the primary judicial organs
of the UN. Applies certain sets of laws to resolve disputes – provided in ICJ
statute which forms it, clarifies functions and powers and provide laws to be
followed and applied
➔ In int law it doesn’t need to be incorporated, it is itself a source of law
➔ Laws coming in the form of customary practices – in statute
➔ Article 38 of statute – mentions international custom – if there is a practice
in the int community which qualifies as a custom, under article 38(b), it
does not need to be incorporated in treaty or statute, it has a legal value in
itself.
(1) the court, whose function is to decide in accordance with int law such
disputes as are submitted to it, shall apply
(a) Int conventions, general or particular, establishing rules
expressly recognized by the contesting states
(b) Int customs, as evidence of general practice accepted as law
(c) General principles of law recognized by civil nations
(d) Subject to the prov of article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of the rules of
law
(2) This prov shall not prejudice the power of the court to decode a case ex
aequo et bono, if the parties agree
➔ Domestic aspect (conventional)
• 2 merchants in contract
• Term 1 - B to pay 100 Rs to A
• Term 2 – A to sell pen to B after payment
• No prov for A to get goods checked before supplying but general custom prevails to do
so
• These customs can be taken into account to determine rights and obligations
arising out of contractual agreement and can be binding, but not in the fashion as
they were binding in int law,
• Here it becomes relevant, not by itself but only because there was an agreement
• The legislation provides a Leverage for customary practice to be relevant
➔ Saving clause of contract – usage or custom of trade – still continue to be
relevant because it saves them;
➔ section 190 – when agent cannot delegate his acts unless by ordinary custom of
trade a sub-agent may be employed – custom a source of obligations but not by
itself but because act provides for it and parties entered into contract –
conventional customs – an indirect source
TYPES OF CUSTOMS

Formal type of custom – general customs – in int law – a direct source - By itself: as long as
a practise has transgressed/ called a customary practice, there is no other legality required. It
need not be incorporated into a legal system. It invariably has legal authority. ICJ resolves
disputes of international nature, one of the primary judicial organs of the UN. Applies
certain sets of laws to resolve disputes – provided in ICJ statute which forms it, clarifies
functions and powers and provide laws to be followed and applied
Grounds:
➔ Practice should not be individual practice but it should be a state practice
followed by the majority of the states. If there is only one state it will not be an
international custom.
➔ Practice not a practice in a gratuitous manner, but in the terms of legal
obligation of the state. E.g.: India giving money to Pakistan for 10 years but in
a gratuitous manner not in the form of legal obligation.
- Who makes the customs is important. India’s customs / Cuba’s
conducts etc. State practices if they qualify to be international
customs.
- The practice with a sense of legal motive (opinio juris)
Example of international custom- Precautionary principle-If a
project is undertaken, environmental harm caused by the project
has to be taken into account and case which is a customary
international law. Diplomatic immunity is also a customary
international law.

Conventional customs – (domestic application) (even in India, different communities have

their own customs to follow) because people entered into agreement, the custom becomes
relevant. Customary practices are relevant, but not in the way they are binding like the
international laws. Only to the extent that people who get involved in an act that requires
or involves around those obligations. It provides customary practices to be relevant.
➔ Indian Contract Act: the first place where it is relevant is “any usage or custom
of trade” because it saves them from exceptions.
Second place: principal x agent: agent cannot lawfully employ another for the
act he has taken up…
➔ Section 190 of ICA, 190. When agent cannot delegate. —An agent cannot
lawfully employ another to perform acts which he has expressly or impliedly
undertaken to perform personally, unless by the ordinary custom of trade a sub-
agent may, or, from the nature of the agency, a sub-agent must, be employed.
—it will have to look at customs as well. It is a source, but not by itself. It
becomes so because the ICA provides for it, and the parties enter into a contract.
This shows that customs get force of law only when parties enter into an
agreement and agree to enforce it when it has been incorporated in the
legislation
➔ Either the legislation goes on to provide codification of customary practices or
provides a leverage for customs to be recognized and then practices will be
recognized through process and have the force of law
➔ Hindu marriage act – personal law – conditions for verification – how
practices become relevant indirectly examples – rights and obligations arise
from an unwritten way of conduct – the legislation provides for it
(a) Parties not in a prohibited relationship – section 5 – unless the
custom prevailed and governing them permits to do so. Relevant
in unless part, not a part of general rule
(b) Solemnized in accordance with customary rights – section 7
 (c) Section 3 (a) goes on to define custom and usage – any rule
which has been continuously and uniformly followed for a long
time and observed the force of law
(d) Section 4 – overriding effect – acts as saving clause – any text
rule or interpretation of Hindu law or any custom or usage as part
of that law in force immediately before the commencement of
this act shall cease to have effect with respect to any matter for
which the prov is made
➔ Part 3 of constitution –
(1) Laws before constitution inconsistent with FR are void
(2) Laws made in future shall not infringe FR
(3) (a) law includes any custom or usage having force of law in India –
doesn’t use ‘in force’
(b) law in force – passed before constitution and not previously repealed
– term custom and usage not used
*Term ‘includes’ means – more than these things – inclusive definitions.
*Opposite are exhaustive definitions
*Courts said it can include more things also like customs and usage in
law in article 13.
*Debate – whether personal laws be subject to FR

➔ Article 25 – freedom of conscience and free profession, practice and

propagation of religion – customary practice or practice becomes relevant –
individual right – not coming from the law. Matter of right and not force of
law
➔ Every community has its own personal laws – when we became independent –
we wanted legislations to codify these customs – special marriage act for
example. They went on to provide various rules for various exigencies – also
incorporated certain practices and allowed them to be uncodified. We have
codified part + uncodified part of personal laws and because of this feature,
there is difference between the normal statutory laws and personal laws, though
both come in form of legislations, there considerations are different. Uncodified
part of personal laws is debated.

International application
Directly becoming applicable

(1) For entire international community irrespective of which block a

country belongs to - general
(2) On a particular region of international community, like a particular
country in a particular block – local
When there is a conflict on subject matter – local custom will prevail

Adverse position – concept in common law system – when you want to acquire right on a
property on account of time that has been lapsed – 12 years have passed and person, who is not
an owner, has been occupying it like an owner and owner shows no objection, then that person
acquires some rights due to the leverage of lapsing time
Underlying idea of lapse of time is there in adverse position – giving rise to right through
prescription when an individual is getting a personal right – time itself prescribes for a right
and in customary practices – practice becomes legal due to lapse of time - it gains force of
law in a particular region, territorially applicable
Essence of custom is time – legal system
Time immemorially – lapse of time when makes practices applicable to a particular region, not
giving right, customary practice in itself is a source of law and then there are some practices
which become legal on account of having been practiced since time immemorial, that means,
it doesn’t give right, but becomes a law over a particular region, territorially applicable.
Modern practices can become custom if the states accept but not because of time immemorial
concept

EQUITY
Good conscience – court of chancery – relief based on good conscience – granting relief in
name of equity

Peculiar thing happened in common law system: English system

Over the years, the court ran out of appropriate provisions and legal principles – a kind of
rigidity brought in entire England for granting relief and hence people started approaching for
granting relief on the basis of good conscience by the chancellor (court of chancery) in name
of King
Example – legal injury – relief is damages or compensation normally – always there in
common law – but what if damage is not appropriate – let us say A makes a film, he is a script
writer, B copied script and made film, A legal injury of copyright infringement – damages
would not be appropriate relief – order has to be given to stop B from going on with the film –
permanent injunction is being sought – King’s bench would not have appropriate relief – so
refer to appeal to good conscience
Other court which was applying good conscience – court of equity – rather than applying strict
triggers of law, applying equity for resolving disputes. So, 2 parallel courts – one in name of
law and customs, other in name of equity
Common law – principles applied and equity – good conscience
Over the years, within court of chancery – first time – injunction; next time – injunction saying
2 cases had similar facts – so started deviation from rigidity and a kind of principles developed
in name of equity – principle of injunction, trust law developed out of equity. Equitable
principles after being developed and applied, have been applied in the sense that they have
been assimilated in the legal system, even though it arose as a deviation from common law.
Both parallel courts were equal in power and one not appellate to the other
This created lot of problem in English legal system.
Court of chancery said that if a relief is sought for a wrong in a matter is needed to be resolved
with the principles of good conscience, then it need not appeal before the ordinary court. Before
approaching the court, party has to prove that there is an appropriate principle provided under
the court they want to approach to. Both courts had difference of opinion on same matter
Example – A and B, A went to ordinary court and b at equity court, both proving the grounds
– chance of conflicting opinions or decisions
1857-58 – English came up with Judicature Act – distinction between courts done away with
– merged into one court system – English court system – court became one but distinction
between common law and equity remains – the principles that evolved out of equity need to be
treated differently – single court needs to decide which principle to apply – one out of ordinary
law or one out of equity, substantially distinction is still maintained – discretion inherited in
principles like equity as compared to those in common law.

In Indian legal system

when we codified all the principles, equitable or common law – included a lot of equitable
principles – (promissory estoppel or injunction) – codified into legal text. Most principles
have been codified so, distinction between equitable and common law systems is not much as
both are equally part of legal system. In Indian legal system, equity and common law system
are equally part of codified structure. But equitable principles allow more discretion to judges
as compared to common law principles where it has to go by rigid legal rules, but still the
judges are confined by the codified structure and cannot act arbitrarily – the only distinction
In case of memorials – in name of equity and good conscience
As long as a particular violation has happened, a legal injury, court is not stopped from
providing relief which is not mentioned in the law as a part of those equitable principles
mentioned in the codified structure, as it can do that through equity and good conscience –
source of appropriate relief
Equity can be used to fill in the gaps of law, but can’t destroy it
So, 2 ways of incorporating equitable principles in legal system – one through incorporation
in main act and other through discretion of judges

COMMON LAW SYSTEM

The explanation of the use of the word common in this context is historical. In the centuries
after the Norman Conquest, the King’s judges travelled round the country deciding cases in
various places. This meant that the judges built up an overall picture of the law in various areas,
and by extending the area of operation of sensible principles and allowing less sensible ones to
lapse, they were able to unify the law of the entire country. Another way of saying that the
law was unified was to say that it was common to the whole country, and so it became
known as the common law.
King started locating their courts in a geographical area and not moving from shire to
shire – unified to wholesome system – started governing the entire community as a
common coherent legal system where same rules can be applied to everyone
Connotations of word common:
Common – (connotation 1) there being an authority laying down rules; connotation 2 of
the word “common” - rules are supposed to emanate from customary practises was a
presumption – observe the common beliefs and on basis of these customary practises, criteria
are set for future governance – coming from common practises prevalent in the community –
coming from everyone and everyone is experiencing it also. Idea behind being governed by
their own practises – rules will be our rules – coming from us, being applied to us
Emphasis on what in Common LS -
Practically, courts were applying customary practises but would get adjudicated into rules at
the time of adjudicating – very important role in development of common law system (CLS) –
adjudication became complex – common law system developed procedure – lots of
formalities while resolving disputes. In Common LS – procedure became processed to
administer justice – system to be followed for every process – very formal way of issuing
command or directions
Executive part –
when the king is giving order, issuing directions to courts or vice-versa – followed system of
issuing command to get various orders established – executive part was always there with
the judicial part – did not have written down statutes. Became a lot order specific in CLS
Example – A is teaching LM – 2 ways – 1. one he can write down rules in text and issue them
to class so class knows what to do as per situation demands or 2. second way, as and when a
particular cause arises, A can write down a command and issue it to the person he thinks fit to
do a particular task.
Example - If A wants someone to pay tax – issues command to person – person has to pay tax
– written down – such orders were called writs. Chancellor, executive wing also had powers
to issue writs whenever certain action was to be taken by a certain person. Within this system,
they also started following pattern of issuing writs. Particular orders commanding for a
particular action - writs.
The origin of writs term is from English legal term – writo
Writ is now being used for realizing individuals’ rights, before it was for following a particular
order
For initiating proceedings - If B wanted to initiate proceedings before a court (by a common
person) –
a. B would approach King
b. provides cause of action
c. if King was satisfied that what B is claiming is within his right of claim, he issues
direction/writ
d. B presents to court
e. based on that kind of writ, a particular type of proceeding was initiated, kind of relief
was determined
Writ – written down order coming from any higher official – demanding action. Out of
this sets of writs – some arose out of king’s discretion – prerogative writs – depended upon
king’s prerogative for issuance. Habeus corpus and all other modern writs come from this.
When king wants a particular person to be present before him – a matter of king’s rights.
Today’s times – all writs – are protecting individual rights – protection by constitution – court
can make order depending upon rights we have – so now they are not prerogative but
emanated from it. Enlarging the rights of individuals today.
Development of CLS, all this happened
Maintaining records-
Now, started maintaining record of all the various kinds of writs and formalities plus
procedure that came with each writ - not a modern-day statute – realized they need to write
down laws and have courts
Sometimes a person might not have an appropriate writ for relief they are claiming – court
relied heavily on evidences – for every proof, evidence was required and for every action,
writ was to be needed
Example - Debt between A and B – A to pay 100 rupees to B – a contract – rigidity is there –
if A pays to B on a future date but forgets to cancel a written contract – based on evidence – so
if B were to initiate proceeding against A, he can – as evidence of written contract – court can
ask once again A to pay even though he had already paid –
Discretion was completely done away with as they relied only on evidences and procedures –
the system became very rigid and there was difficulty in finding remedy or writ for every kind
of action– people started approaching king to provide remedy for the situation – king as a
matter of digression would use his discretion – approaching king for providing leverage
where rigidity would work against them and no appropriate writ was available – king’s
sub-conscious to be used – king used to refer his chancellor for this – king delegated function
to chancellor – chancellor assumed to be keeper of king’s conscience, apart from ordinary
court – developed into court of chancery – relief by them was relief arising out of equity.
Court of equity started following precedent – principles developed out of court of equity –
single court system – referring to principles – some out of equity court – some out of CL courts
– legal remedy
Whenever conflict arose between equitable principles and common law principles, equity
prevailed
When one court was established by merging two parallel courts through act of judicature
– difference between nature of reliefs arising out of two kinds of principles – those from
equity were flexible + discretion in application
awarding damages:
i. Normal approach of Common Law System Courts –
1. compensation approach – once the person has been
proved to be wronged, he needs to be compensated in
order to bring him back to the position he was before
he was wronged
2. Punitive damages Example - A and B contract to deliver
a product P – A defrauds B – B suffered 100 rupees loss
– A made more profit and made 1000 rupees out of the
breach – imbalance between loss suffered and benefit
earned – CL courts digress from normal compensation
and provide for punitive damages – intention to not only
bring back to original position but also to punish the
person who committed the wrong - court can ask A to
pay extra to the court or to B
3. Nominal damage - when court feels wrong has been
committed but a matter was very trivial and not much
loss suffered, legal wrong but not that harmful nature
– so nominal damage
Relief was to be in form of damages – compensation nature – in all 3 forms
 ii. Equity courts:
Takes into consideration the matter if it is proved that damage is not the resort to be
appropriate – equity courts take into charge and provide for relief which may not be
accordingly compensated form of damages
In Indian legal system,
Specific relief act – reliefs, principles provided – borrowed a lot from the court of equity -
some sections provide discretion to the courts. New relief act amended that specific
performance can be claimed as a matter of right and not upon discretion of judges
Relief only comes when it has been proved that party has been wronged. Violation of right –
question of relief – relief arising out of primary right
When compensation is not adequate remedy- equity courts reliefs
Equity court would take into account only when they feel that compensation is not enough – in
case if rare, unique goods etc… Only when the common law court’s compensation is not
enough to right the wrong done to the aggrieved; there is something more than damages.
SPECIFIC PERFORMANCE OF THE DAMAGES – Specific Performance is mostly
sought in case of a breach of contract resulting in damages or losses for one of the parties to
the contract. Instead of compensation in lieu of the losses accrued, the aggrieved party may
approach the Court in order to enforce a specific part of the contract. When a contract is for the
sale of a unique property, for instance, mere money damages may not remedy the purchaser's
situation.
INJUNCTION - An injunction is a legal and equitable remedy in the form of a special court
order that compels a party to do or refrain from specific acts. "When a court employs the
extraordinary remedy of injunction, it directs the conduct of a party, and does so with the
backing of its full coercive powers.

Concept of trusteeship –
comes from equity only – laptop belongs to A – owner of it – A has rights, can sell, use, destroy
or anything to the extent not to affect someone else – forms of interests held over property
by the virtue of A being the owner – ownership – bundle of various forms of interests over
a property – no one who has a better interest – traditional concept out of common law. As
a result of this, problem of assigning responsibility upon owner with respect to certain actions
– they started bifurcating the ownership right into legal right, coming out of common law
principles and beneficiary right, arising out of equitable principles.
Example - Land belongs to A in Jaipur – owner – wants to reside in America – can entrust this
responsibility to manage property, take profits off it, he will have to use in whatever way he
wants, assign him as the owner but not to affect the rights of A over it, B has to use it for A’s
benefit also – B is owner – can raise loans too – 2 types of interests arising – legal with B,
beneficiary with A – B is holding the property in the interest of A – for the benefit of A,
B is holding the property of A – B cannot destroy it has to preserve for A - concept of trust
– rights and obligations arose out of equity in exception to common law system. If he
renovates property, increases profit – not a breach – equity being used for legal obligations
besides for providing relief
A into agreement with B – A says I will supply rice of 10 kgs on every Monday – B enter into
agreement with C, based on contract with A – if now A backs out – consideration is not there
from A, so contract not complete – but promissory estoppel doctrine out of equity – B altered
position/course of action based on A’s promise – equity is creating legal obligation. Once
promise made and promisee changes course of conduct, then promisor should be stopped from
going against. Equity courts used this to provide relief, even when contract not there. Exception
to strict application of common law problem

Hierarchy of English courts

Magistrates court

Criminal – original

Criminal in youth matters – 10-18

CRIMINAL JURISDICTION
years
Magistrate court – original jurisdiction in criminal courts + civil
Civil – appellate + original
jurisdiction (original and Appellate) – sentence or pass its own
sentence Civil of youth

When move upwards from it – defendant has right to file appeal Family law jurisdiction – sitting as
against magistrate court in crown court but no right to plaintiff – family proceedings courts
matter of right of defendant
 While moving from magistrate to crown court – several cases happen – apart from filing
appeal right to defendant –
Crown courts
1. certain offences so grave – offences of indictment
Criminal jurisdiction – defendant offences only – magistrate court can refer to crown court on
sent for sentence or trial by MC – its own without defendant needing to file appeal to crown
neither appellate nor original – a court or
stage in the first instance procedure 2. MC can convict but when it feels magistrate court is not
fit enough give sentence or punishment
Civil jurisdiction – original is not
there – have appellate in respect to
decisions of MC in civil cases

Genuinely Appellate jurisdiction in

criminal - It is used as an appeal
court – when defendants from the
MC appeal to it on the facts

• Appeal against conviction –

full re-hearing
• Appeal against sentence –
only outline of facts
• Or against both

Quasi-appellate jurisdiction – case

re-open by third party when
miscarriage of justice

There is a jury in trials

 3. Some offences for which the defendant, if
High court
wants, can make a claim for a trial by jury
– matter then will be taken up by crown If defendant wants to appeal
court question of law – to HC – not to
crown court – loses advantage to
Apart from this right of defendant – both parties have right to file appeal on facts and appeals against
an appeal directly to HC from the MC – with a certificate from sentence – appellant also has right
MC with saying that Case is fit enough to be taken by /filed to appeal
before HC – the stated to be filed before HC – based on discretion
of relevant court – not a matter of right but can make a plea. Civil and criminal – original +
For HC appeal, substantial question of law has to be involved – appellate + supervisory – 3 benches
appeal by a way of case stated – there can not be a case where None of three divisions has original
you are not satisfied with lower courts’ decision. jurisdiction in criminal other than
Defendant can seek certificate in front of MC for matter to be power to deal with criminal
tried in front of HC – matter of right – MC has to give certificate contempt of court
but in case of plaintiff, it depends on discretion of MC to grant QB civil original– subdivisions –
certificate or not administrative, admiralty,
commercial court
If MC feels that there is a very important question of law that
can be taken only by HC – then it refers sou moto Divisional court of QB division –
appellate + supervisory – general
Example -matter between A and B – A has right – he can go MC
cases
and has right to appeal to Crown C – no restriction that Crown C
will take into consideration only question of law, can take of QB - criminal appellate from MC and
facts also. When defendant appeals for jury, MC seeks permission crown courts without jury on points
of Crown to make the jury sit – matter of discretion of crown court. of law/ QB – civil appellate – same
way as criminal
Jury – deals with matters pertaining to facts; judge – with law –
in common law system – jurisdiction of judge and jury – act of CB and FB – no appellate in criminal
referring the wrong question to the jury can also be challenged. It
CB – appellate in civil from county
has role to play even when cases are being re-opened. Where matters
are referred to jury by MC, not appellate jurisdiction as it is matter FB – appellate in civil from MC and
of discretion and not right crown (by way of case stated)

Crown C to HC – same certificate of specific recognition of CC Supervisory – QB – exercisable by

that case is fit enough way of procedure known as claim
for judicial review – by single judge
In English system, criminal cases directly go to SC, SC is the in civil cases and 2-3 in criminal as a
apex court divisional bench court
Crown court to court of appeal – to appeal sentence or to appeal
conviction or to appeal both sentence and conviction

Civil jurisdiction
Civil case – mostly before County court – then to HC
HC – normal and appellate jurisdiction
 Mostly – majority of cases – original jurisdiction with county courts – cannot try criminal
cases. From county to HC
County courts HC has 3 benches – Queen’s, Chancery’s and Family’s
Civil jurisdiction – original + a. QB – civil (original)+ criminal;
appellate b. other CB – civil only jurisdiction. CB – property,
law, trust, equity.
Original – contracts and torts,
c. FB – family law jurisdiction, personal laws
probation and divorce
House of lords’ court – replaced with SC
Admiralty jurisdiction
Each division has a single and double bench
Judges have powers to allocate
cases between HC and County Crown court – no appellate nor original jurisdiction
1st order appeal In India – question of law; 2nd order – substantial question of law
English courts – appeal against ratio of the case or sentence or both
Law is classified a lot – in terms of subject matter Court of appeal
Supreme court Judicial review power – procedure of Divided in criminal and civil division
claim – legislators and executors’ – both having appellate
Criminal and civil
acts – with HC – in a limited sense.
Inherited from house of lords But in Indian Legal system, this power Criminal div appellate – against
is with SC conviction (power to hear the
witness) or sentence or both from
QB has supervisory power to take make up matters of judicial crown; also has quasi-appellate
review – reviewing acts of legislature or administrator
Civil div – appellate – from county
and HC – documentary evidence

Civil legal system

Historical background
Civil legal system relies on written legal codes
European continent was influenced by Roman legal system. Romans were among the first
few civilizations to have legal system. When Europe developed, roman legal system had role
to play in evolving legal system there – borrowed roman principles
10th century – roman realized importance of codified principles. In roman legal tradition –
code is a big legal text – having various components to it – a text and parts in it
Roman law - Bifurcated into jus civilae – pertain to matters governing transactions between
citizens of same city state, very domestic rules, particular to that geography, transaction and
res jus gentium – pertaining to transactions between non-citizens, applicable universally, not
limited to geography
Roman laws were starting to be codified which were applicable to roman citizens – codes
were being made in jus civilae which were applicable on romans
The legal system in other countries was influenced by jus civilae – the countries over which
roman legal tradition had influence. Jus civilae was adopted in other parts of European
continent and word ‘civil’ came into force – civil here means an entire legal system, different
from common law system – here civil system can again be bifurcated into civil and criminal
law – origin of civil legal system from jus civilae
Codified way of writing laws – roman laws – jus civilae
Difference between civil and criminal LS
Justinian code – emperor Justinian – first attempt to make a large comprehensive code –
European continent parts under influence also started developing code to govern legal
system – so principle to have written rules and laws came much earlier than in common
law system (where precedents and customs had role in codification) – precedents had binding
authority in common LS, no role in Civil LS, followed just by virtue of respect to higher
courts – more focus on how code to be written, how to interpret written texts and
providing for solutions from them; in common, focus was on incorporating system etc.
Common law system development – role of precedents and customs; in civil – role of
written texts, code, judiciary had role to play by resolving disputes but not very
important, but its role was reduced to understanding facts, principles of civil law system,
they would follow decision of courts but not in form of precedents, matter of general
practice to follow decisions of prior courts but no role as precedents which are binding
In Indian dispute resolution system, we are influenced by common law system but in
tribunals, we are like civil legal system
Normal laws and droit administratiff
Civil LS - They categorized law very well – matters were decided according to categories by
courts and according to them legal texts were written – every code divided and arranged very
properly – substantial varied from procedural – categorization maintained. Classification of
codes had very imp role to play in development
Today also we have this classification and distinction – civil from criminal, family from any
other law, substantive (concept) from procedural (how to be applied) – we frame rules, make
appropriate categorization and draft rules as per this categorization.
When the matter is brought before judiciary – look in facts, which category it belongs to and
look for legal principles in legal text to see which principles to apply
They maintained distinction between normal laws applied among the citizens and another
laws - those applied among administrative sector (ministers, government officials and all) in
governance – actually a violation of today’s idea of ‘equality before law’ – just like distinction
between public and private law – 2 distinct set of laws
Like in common LS, common law and equitable principles; in civil – administrative and
normal laws
Droit administratiff – those set of laws applicable for those in administrative sector – idea of
administrative laws comes from here – how administration functions + people involved in
sector who will be treated according to droit administratiff – especially in French legal system
Modern concept of administrative law – evolved but origin is here. In French legal system –
Aristotelian concept – treating people different with different law sets. Separate set of judiciary
– counseil D’etat
Courts did not have much role in civil LS, so what can be the implication? What is very
fundamental about Civil LS? –
the court civil LS interprets, finds truth and gets into legal implications – no other
responsibility on court but to rely on written legal texts – courts had to think about to develop
lot of procedures to ensure their adjudication process was lot more systematic to dispose
justice, more processed, rely on evidences heavily, meet certain standards -transformed
into a principle saying justice should not only be done but should be seen to be done –
transparency playing role in demarcating functions of judges. So, judges play role in
investigation, finding truth rather than procedural aspect. In common LS, judge had to
find law, no need to develop their own rules to dispose of justice as long as interpretation
of the law was right, focus was on finding what law means, no much emphasis on disposal
aspect, procedure should be fair, focus on finding law and procedural aspect. So, 2 types
of justice system developed through civil legal system – inquisitorial and common law
system – adversarial
Civil LS – courts only read the law, more focus on interpretation rather than adjudication
– law developing out of already codified legal texts principles; manner in which court system
functioned is different from than in Common LS - Common law system read + provide for
resolution of disputes– emphasis on procedural aspect – writ from the court; Civil –
already general principles laid down in codes so no need of writ system to develop – no
private orders made by king were required
Certainty – in every legal system; consistency – rely on principles; every system relied on equal
people treated equally, to bring consistency – in Common LS, consistency was ensured by
method of precedents (similar material facts); in civil LS, similarity was mentioned by rules
which are interpreted by judiciary – those who are not falling under the rule will not be
treated in the way those who fall under it are treated – consistency on part of legislator.
Civil law system is all about interpretation by judiciary and common LS about
procedural and adjudication, no written down codes so relied on precedents; role of codes is
only interpretation and finding of texts, not creating anything and there can be interpretational
differences which can be there in Common LS also.
Even in civil LS sometimes judges would read a law, less strictly when needed.
When civil law developed, there was influence of roman law system so there was many written
text and code, the English did not feel the need to rely on precedents
Civil law system – initially courts had no role but as it matured, role of courts also evolved –
as they realized each case cannot be taken as new case, cannot solely rely on legislative
principles, previous cases are also to be kept in mind, need to have consistency. Over the years,
did not follow precedent’s sense strictly, but if on a particular principle of law, there had
been sufficient past decisions in cases with many similar facts, then that particular past
decision will hold value in persuasive sense, respecting those decisions. In common LS,
precedents have their own authoritative binding value but in civil LS, they have only
persuasive value
Common LS – procedural aspect focus, role of all officials demarcated clearly – there are
several checks but the point is whoever manages to put across better case, will win – lawyers
are adversaries of each other, judge is referee, not an active part – while disposing of a
particular decision, focus on outcome, how outcome arose, so reason of judgement is
provided, procedures are looked into, dissenting opinion is also read. – adversarial
In civil LS – continental countries – judicial process is different – the layers are not
adversaries to each other, unlike in Common LS; entire court works to find out truth – judge
also plays an active role – inquisitorial – minority opinion is not cited with the main
judgment, unlike in common LS.
Role of customs in civil law system – most of them were incorporated into the codes
drafted – so importance was recognized but incorporated to regulate some transactions
Role of sources in civil LS
Legislation> customs> judiciary
Ratio is founded in common LS – as it binds the lower courts but in civil LS, determining
the ratio of the case, which has persuasive value, also has relevance – material facts and
ratio have relevance here also
ICJ – international law – different system of law – when it gives its judgement, it is not bound
by previous decisions but have persuasive value
French legal system – special feature – administrative law – droit administratiff; something
very unique happens in French legal system – they started applying different set of laws on
private persons than those applied on public entities – what is unique – it is confined to having
set of laws + separate judicial system to deal with these matters – distinction made between
courts administering justice upon private individuals and public entities was based on
whether matter arising from private entities or from public entities – whereas in common
law – common law system and equity was based on good conscience; counseil d’ etat –
categorization of justice delivery, a separate judicial system for administrative officials
governed under droit administratiff - lot more distinct and clear – jurisdictional issue has
to be resolved – distinct set of codes – bases was to provide certain privileges to public
officials, state officials and private officials cannot be treated equal to public officials, but
over the years in French system, like in other modern countries legal system, these
provisions in administrative law have acted as restrictions on administrative arbitrary
functions rather than privileges. Nature of work – whether sovereign or private action
becomes important in determining whether administrative law is to be applied or normal laws
– also important to determine jurisdiction
CIVIL LEGAL SYSTEM COMMON LAW SYSTEM
1. precedents - precedents had only 1. precedents hold a binding and an
persuasive value as they already had a authoritative value as there were no written
written legal code and courts follow texts to rely on
decisions of higher courts only as a gesture
of respect
2.origin and writs - this did not have the
system of providing writs to get an order
established. Civil law- In other European
nations, on the other hand, is generally traced
back to the code of laws compiled by the
Roman Emperor Justinian around 600 C.E.
Authoritative legal codes with roots in these
laws (or others) then developed over many
centuries in various countries, leading to
similar legal systems, each with their own
sets of laws. They categorized law very well
– matters were decided according to
categories by courts and according to them
legal texts were written – every code divided
and arranged very properly – substantial
varied from procedural – categorization
maintained. Classification of codes had very
imp role to play in development
3. consistency was brought on the part of
legislator – that is interpretation of rules by
judiciary by not applying those laws to
people who are not under it, which are
applied to those who are under it
4. less emphasis on procedural aspect
5.focussed on finding out truth collectively
and everyone, including judge played an
important role in this – so there was an
inquisitorial system
6. judges were more inclined towards relying
on written legal texts to find out truth that is
reading the law and getting into legal
implications and had no other responsibility
– had the concept of justice should not only
be done but should be seen to be done, a
dispute should be decided but the judges do
not create the rule of law by way of
precedents
7. they had the system of droit
administratiff and normal laws based on the
nature of function – sovereign nature or
private nature – so administrative law was
applicable to public entities and
administrative sector carrying out
administrative and public functions and
2. there was system of writs to command for
an order to come into force. Common Law -
The original source of the common law
system can be traced back to the English
monarchy, which used to issue formal orders
called “writs” when justice needed to be
done. Because writs were not sufficient to
cover all situations, courts of equity were
ultimately established to hear complaints and
devise appropriate remedies based on
equitable principles taken from many sources
of authority (such as Roman law and
“natural” law). As these decisions were
collected and published, it became possible
for courts to look up precedential opinions
and apply them to current cases. And thus,
the common law developed.
Today also we have this classification and
distinction – civil from criminal, family
from any other law, substantive (concept)
from procedural (how to be applied) – we
frame rules, make appropriate
categorization and draft rules as per this
categorization
3. consistency brought about by way of
judiciary through application of precedents
when and where the material facts were
similar. Judiciary had to maintain uniformity.
4. more emphasis on procedural aspect
5. focussed on finding out what law is and
what it means – the lawyers are adversaries
to each other and judge is the referee thus,
making it an adversarial system
6. judges more focussed on finding out what
law is and that interpretation is right and
procedural aspect is followed fairly – no need
to make their own written codes or rules –
they create rule of law by way of precedents
- they read the law and emphasized on
resolution of disputes but not much
concerned with doing justice
7. they had system of common law principles
and equitable principles based on how the
relief was provided – the relief in equity
courts was based on good conscience and in
common law, it was based on the principles
enshrined
 normal laws to private individuals –
particular to French law system
8. basic principles of law are found in a series
of enactments called code
9. Reporting the decisions of the courts –
the facts are summarized and lawyers’
arguments are not reported plus the
dissenting opinion too is not presented and
conclusion of judges as whole are stated in a
few sentences without reporting the reason
10. judge has to follow a prescribed way of
giving a judgement – that is in writing and
avoiding lengthy judgements
11. the judges and jurists have freedom of
extensive interpretation where they interpret
codes so as not to bar the economic and
social progress and interpret the statute as the
time desires not fettered by narrow
interpretation.
12.lawyers from the civil law countries tend
to be more conceptual.
13.The civil law is based on the theory of
separation of powers, whereby the role of
legislator is to legislate, while the courts
should apply the law
8. general principles of law evolve through
the decisions of the courts
9. The facts along with the lawyers’
arguments are reported and the majority and
minority opinion too along with the reasons
for the judgement
10. judges have full freedom to determine the
way of delivering a judgement
11. this freedom here is not available and the
law is to be interpreted in the light of
circumstances in which the statute was made
12.lawyers from the common law countries
are more pragmatic
13.in common law the courts are given the
main task in creating the law

ORIGIN-
Common Law - The original source of the common law system can be traced back to the
English monarchy, which used to issue formal orders called “writs” when justice needed to be
done. Because writs were not sufficient to cover all situations, courts of equity were ultimately
established to hear complaints and devise appropriate remedies based on equitable principles
taken from many sources of authority (such as Roman law and “natural” law). As these
decisions were collected and published, it became possible for courts to look up precedential
opinions and apply them to current cases. And thus, the common law developed.
Civil law- In other European nations, on the other hand, is generally traced back to the code of
laws compiled by the Roman Emperor Justinian around 600 C.E. Authoritative legal codes
with roots in these laws (or others) then developed over many centuries in various countries,
leading to similar legal systems, each with their own sets of laws. They categorized law very
well – matters were decided according to categories by courts and according to them legal texts
were written – every code divided and arranged very properly – substantial varied from
procedural – categorization maintained. Classification of codes had very imp role to play in
development
Today also we have this classification and distinction – civil from criminal, family from
any other law, substantive (concept) from procedural (how to be applied) – we frame
rules, make appropriate categorization and draft rules as per this categorization.
Precedent –
Common law system is based on the concept of judicial precedent. Judges take an active
role in shaping the law here, since the decisions a court makes are then used as a precedent
for future cases. Whilst common law systems have laws that are created by legislators, it
is up to judges to rely on precedents set by previous courts to interpret those laws and
apply them to individual cases. The decisions of the highest court of the land or other
superior courts are taken to be binding on lower courts.
Civil law systems, on the other hand, place much less emphasis on precedent than they
do on the codification of the law. Civil law systems rely on written statutes and other legal
codes that are constantly updated and which establish legal procedures, punishments,
and what can and cannot be brought before a court. The earlier holding of the court is
referred by way of illustration only. They are treated to have no binding effect.
Judges –
Common Law - Judges had to develop a lot of procedures to make the codes and all
systematic; they had standard of proof; judges had a role to ensure consistency because
precedents were followed and hence judiciary had to maintain consistency
Civil Law – They just had to just find the law and not form procedures; judge would only
focus on applying the law–JUSTICE SHOULD SEEM TO BE DONE AND NOT JUST
DONE; transparency of the judges was important. Legislator had a role to play in
ensuring consistency. No precedents were followed and hence legislature had to make
sure while framing the codes that consistency is followed. In a civil law system, a judge
merely establishes the facts of a case and applies remedies found in the codified law. As a
result, lawmakers, scholars, and legal experts hold much more influence over how the
legal system is administered than judges.
Minority Opinion –
Common Law – minority decisions tho not binding are stated in the judgements.
Civil Law – minority decisions are not reported. The judgement is always as a whole.
Form of Judgements -
Common Law - The common law judge has full freedom regarding the form and length
of the judgment.
Civil Law – A prescribed way of judgment. It must be in writing and must comply with
the formal requirements: This avoids the lengthy judgments
Flexibility –
Common Law – interpretations according to the statutes – bound by the precedents –
fetters on the judicial interpretation.
Civil Law - They have full liberty to see that the codes may not bar the economic and
social progress of the nation. They will interpret the statute as the time desires. Not
fettered by narrow or formalistic interpretations There is a living judiciary
Difference between adversarial and inquisitorial system.

Adversarial & Inquisitorial system.

An adversarial system is that where the court act as a referee between the prosecution and the
defence. The whole process is a contest between two parties. As regard crime these two parties
are the state & the person accused. In this process court takes a non-partisan role.

An inquisitorial system is a legal system where the court is actively involved in proof of facts
by taking investigating of the case. This system resolving disputes and achieving justice for
individuals and society.

Distinction between adversarial and inquisitorial system.

The following table outline contains the fundamental differences between

typical adversarial and inquisitorial systems-
Adversarial System Inquisitorial System

The adversarial system aims to get the truth The inquisitorial system is generally aims to
through the open competition between the get the truth of the matter through extensive
prosecution and the defence. investigation and examination of all
evidence.

In an adversarial system all parties determine In an inquisitorial system the conduct of the
what witnesses they call and the nature of the trial is in the hands of the court. The trial
evidence they give. The court overseeing the judge determines what witnesses to call &
process by which evidence is given. order in which they are to be heard.

In adversarial systems previous decisions by There is little use of judicial precedent in

higher courts are binding on lower courts. inquisitorial systems. This means Judges are
free to decide each case independently of
previous decisions by applying the relevant
statutes.

In an adversarial system the role of lawyers In an inquisitorial system the role of lawyers
is active. is passive.

The judges pronounce judgment depending The judge plays an active rule for
on the hearing, evidence or on the basis of questioning & hearing the parties directly.
examination & cross-examination.
 In an adversarial system the role of the In an inquisitorial system the role of the
judges is merely passive in nature. judges is very active.

The case management does not depend upon The case management depends upon the
the judges so the judge’s contribution is very judges so the judge contribution is very high
low for the disposal of any case. for the disposal of any case.

In an adversarial system all references are In an inquisitorial system, references also

presented by the respective lawyers of both presented by the judges & they play an active
the parties. role.

The case management depends upon the The case management depends upon the
lawyers of both the parties & they get judges and the judges fixes the term for the
unfettered opportunity for the case disposal of any case.
management upon their own wishes.

In an adversarial system the hearing, In an inquisitorial system documents and

evidence or examination & cross- information about the real facts get priority.
examination done by the lawyer get priority.

Case management is not effective under this
system because the judges cannot exchange
views with the parties for taking any
decision. So, no initiative can be taken for
speedy disposal of any case.
Case management is effective under this
system & the judges sits with the parties and
can exchange views for taking any decision
for speedy disposal of any case.

In an adversarial system, judge has In an inquisitorial system judges have wide

discretionary power but that is not wide by discretionary power.
the evidence.

Repeated time petition (common practice) is The main object of this system is to reduce
permitted at the time of continuance of the the time for disposing a case and to ensure
case & the lawyer’s take the opportunity of speedy justice. Judge plays an active role in
making time petition. So, delay occurs in deciding time petition & may honoured or
disposal of any cases. reject time petition.
=========================================================================

Islamic legal system

Development and the way laws were recognized – opposed to general sources – there were
various set of sources created unique to this system – depended on revelation aspect of text
– when they are following this revelation/written texts, it is not similar to written texts that we
follow in statute – statutory text in itself is comprehensive enough to provide various rules
within a particular context and there is a particular legislator for framing these rules – when
we talk about interpretations and revelations of various rules, there was also a process of
how these rules were to be identified in order to follow them in general practices, conduct
of transactions - in place of legislator drafting legislation, other sources were developed
➔ Major text was Quran, played role of revelation – broader in concept –
talks about legal obligation and other various parts – followed Quran in
terms of revelations and revelations were means of identifying obligations
and conducts to be followed
• Some portions of quran are relevant in covering what legal obligations – within
that also there are portions which talk about acts which need to be committed and
some portions talk about acts which are prohibited and others talk about
punishments attached with such omissions
• Concept of Quran – lot of interpretation involved in understanding which rule plays
a part in conferring the legal obligation in terms of transactions committed –
different from legislation – legislation in modern text function is a system of rules per
se and there is a given context in which rules play a role and also extra-legal texts to
refer to and rules are equally important for conferring obligation (normal legislation or
statutory text), quran was used in early development of ILS to formulate conduct and
regulate a formal transaction, so its interpretation is different from this; quran in itself
is not complete – interpretations provided but not self-contained to understand what is
legal obligation
Example – there is legal text providing for certain provisions – contract act – provides for
provision to follow for regulating contract but other provision can also dictate governance of
that transaction
similarly in revelations of quran, among them, each and every aspect/provision is not equally
important in imparting legal obligation and it is not as if they are self-contained, there are other
sources also relevant in recovering what is the requisite practice or legal obligation arising out
of legal system
Other sources –
➔ Sunnah - practices prevalent at that time in society – practices of prophet
– trying to understand a particular provision of quran along with those
revelations and aspects with practices of prophet to understand legal
obligations.
• There might be a legal provision provided from the Quran. It might not be completely
enough or it might be ambiguous, therefore the practices will reveal how they are
applicable for day-to-day practices.
• Similar to customary practices.
• Let’s say on a particular scenario, quran does not allow or prohibit a conduct, then also
these practices can be relevant – primary source of law – cover portions not covered
under quran – primary source law – consists of practices and sayings of prophet
interpreted as practices of community prevalent at that time
• provides for additional legal obligations not provided in quran
Example- Two merchants entering into contract, the specificities might not be given in the
Qur'an, but the practice prevalent in the society will become relevant as a source of law to
determine contract law.
 • Sunnah is not written down – uncovering practices – understanding words of God in
terms of practices prevalent – trying to find what a law is in terms of what God
authority provides for in a particular situation
• Both quran – written text and sunnah are helping to interpret the revelations of the God
himself.
➔ Ijma - Role of jurists – in common and civil LS, they were not imp as they
played secondary law in expounding the law and not making it just clarifying
the law, not primary source of law, relegated role of explaining law and not
crating it, they gave relevant view point in understanding law, for interpretation;
• but in Islamic LS, role of jurists is not of secondary level – explaining law and
providing for the system – a primary source – writing of jurists and scholars –
consensus of those who are learned in law and their opinions were primary source
in development of system
• Over the years, the scholars, depending upon geographic area, themselves started
forming various rules of Islamic law following a particular form interpretation or
reading of Islamic law. Bifurcation of Islamic laws. Depending upon prominence of
opinion of a particular scholar, different schools were formed, differences among
them led to bifurcations in Islamic LS – so great role of Ijma
➔ Quiyas or analogy - In addition to all these sources- if there is something not
provided for in the Quran, no juristic opinion, no prevalent practice. They
would create a law by creating an analogy of it - this is called quiyas. This
is not considered use of good conscience. This is interpretation of revelation
by creating an analogy. Tool of analogizing – itself is a source – through it,
certain facts not in other sources, understood this fact to find out what law would
be – what revelation is providing by using analogy
In development, there was development of legislature and judiciary eventually
Various schools formed within Islamic LS –
• each gave different kind of importance to sources – this bifurcation is relevant to
Islamic LS – but primary was always Quran – school of thought became popular in a
particular geographical area-based leaders – whichever scholar had more influence in a
particular geographic area, there that school of thought developed to arrange and
understand these sources
• Hanafi school – established by Imam ibu Hanif – use of analogy – more influence –
each school in that sense was formed by a leader who were scholars having influence
• Hanabali School – no importance to quiyas source – to practices, sayings
There is a religious system – different from Common LS and Civil LS – difference based on
geographical areas
Hindu Legal system
➔ Each system has unique set of sources, then schools which arrange sources for
interpreting law’
➔ Authority derived from Dharma – God’s authority – covering the text of
religious authority
➔ How we understand words of Dharma
 ➔ It doesn’t have universal texts to cover all dictas
➔ It is bifurcated – 4 sources – Shruti, Smriti, Commentaries, Customs
➔ No written texts
• Shruti – whatever has been heard – recitals or translations of God’s
communications; one subject pertains to legal transactions and obligations; recitals are
obligations which we are to follow
• Smriti – rishis started writing what they remembered of old teachings in Veda’s
period – written texts – referred for purposes
• Commentaries – in order to interpret the written texts by scholars and jurors to provide
correct description and truth– or digests – understanding smritis and shrutis – not
primary source as above 2
• Customs – whatever practiced as general practises give rise to obligations and
transactions
➔ These are ways of understanding Dharma – all rights and obligations from here
– in order to understand Dharma, these sources provide obligations
➔ Some aspects govern marriages – Hindu marriage act – additional obligation
and also imbibe aspects of 4 sources such that they become relevant

MODULE 4
RIGHT IN REM AND RIGHT IN PERSONAM
Right in rem – involves various strands of rights which are numerous and unidentifiable
– not a single right – but various strands of rights against various strands of individuals who
are unidentifiable – subject matter of all these rights is same but the nature of it is
innumerable. When violation by a single person of this right, then this right becomes
identifiable in nature – secondary right that is right to enforce the right in rem becomes
right in personam. In rem includes only primary right
and right in personam – single right which is identifiable in nature against identifiable
people – includes both primary and secondary rights
Example - laptop belongs to A and has right that it doesn’t get stolen – A who has right, Subject
matter over which the right is exercised, person against whom right is being exercised
contract – A with B and C together – rights will be in personam in nature – always identifiable

ISSUES OF LAW AND ISSUES OF FACT-

A simple distinction -
All those issues for which you have pre-defined provisions in the law in the constitution –
already have a pre-determined answer – issues of law. Those issues for which we don’t have
a pre-determined law but only situations and facts – issues of facts
EXAMPLE - X murdered Y – whether he used weapon: issue of fact
Whether he is liable: issue of law
What is murder: issue of law
When was it committed and where: issue of fact?
Examples where there might not always be a pre-determined law/answer –
• EXAMPLE – Keshavanand Bharti – question was whether all parts of constitution are
open to amendment or not – issue regarding constitution – interpretational differences
and hence, not pre-determined laws
• EXAMPLE – article 19 (1) providing rights and (2) providing restrictions that are
reasonable – term ‘reasonable’, what is reasonable is not provided by law and discretion
of some kind rests with the judges; what a reasonable driving speed is – not provided
in law
• EXAMPLE – matter before a trial court and court says that A was driving at speed of
50k/h which is considered unreasonable in Delhi streets – A appeals to HC – HC can
hold that trial court was wrong to determine that speed as unreasonable – so, whether
he was driving at that speed is a matter of fact and whether it was unreasonable is
matter of law.
• EXAMPLE - Sometimes, law might be worded so as to provide a leverage –
example: law of murder worded that penalty to be either life imprisonment or death
penalty – court giving opinionated choice – cannot be covered in matter of fact
Hence, this distinction of issues of law having a pre-determined law cannot be
comprehensive/enough as there are many issues of law which do not have pre-defined
provisions in the law
Further refining the distinction between issues of law and fact-
• Matters which are to be answered with evidences – question of fact
• Matters not requiring evidence but having pre-determined answers – question of
law
EXAMPLE – whether driving at speed – meter is evidence
➔ These matters are relegated to jury. Lower courts like trial courts with
original jurisdiction deal with these questions – evidence has been presented.
Sometimes matters of evidences can turn to matters having pre-determined laws –
➔ deeming provision – it doesn’t matter which feature you take into
consideration, the law says something is, so it is – So, a matter which
otherwise seems to be requiring evidences, law provides that it is matter of
law by fictionalizing it.
➔ Example can be –
a. company declared to be a legal entity by a
legislation irrespective of what a physical feature
says it to be because its legal colour says that it is
a legal entity so even if feature says it needs an
evidence, legality says it doesn’t – cannot be
challenged
b. Wife died within first 7 years of marriage –
presumed to be dowry death – matter of fiction
as logic dictates just because wife died in 7 years,
 not necessary to be dowry death, can be another
accident also – but law presumes it to be due to
dowry – law converted a matter that otherwise
required evidence into one which doesn’t – can
be challenged
c. Doli Incapax – law presumes that child below
7 cannot have sense of judgement and hence
no intention - Offence by a child below 7 years
– he will not be penalized – intention part is not
taken into consideration – might be true for many
children – that is they might have an intention
scientifically – legal fiction and this cannot be
challenged – so if a 6 years old child commits
murder, no penalty – so even if this logically
requires evidences, law fictionalized it by saying
it doesn’t require evidences
In dowry death and 7 years child example – establishing existing fact – whether child
guilty or not – whether death is due to dowry or not - law is inferring from fact – from
one fact, another fact is to be inferred – this is aspect of presumption – a way of
inferring – presume only if there is a previous fact that has occurred or has to be
established and on basis of which presumption is made about another fact – there
always has to be a pre-existence fact
Presumption – wife died due to dowry demands – so facts – death occurred, death within 7
years from marriage – based on this set of facts presumption is built – legal presumption –
even though there is a possibility this might not be the case – if presumption had not been
made, proof would have been required to establish existence of these facts and their
linkage to each other, at every stage explicit evidence would have been required but
now at the third stage, the connection has already been made by law through
presumption
In 7-year-old child committing crime – set of facts: fact that child is below 7 years and an
act of offence has been committed and based on those presumption is of doli incapax
Company fictionalized as legal entity – title for the company – because of which it has
right to sue or to be sued – no presumption but legal fiction purely – no aspect of proof
as not establishing anything – conferring rights on it
Common in all three examples – matters otherwise requiring explicit evidences have been
converted to matters having pre-determined answers.
Presumption – rebuttable (dowry death, court will take it to be so unless proven otherwise
and it is on other party to prove not due to dowry) and irrebuttable (7 years old child)
EXAMPLE – in agent-principal relationship, presumption of undue influence
EXAMPLE – innocent until proven guilty – when a charge made against a person, that
is stage when neither guilt nor innocence is proved – state of neutrality – might not need to
be prove guilt and innocence – once state of affairs is arrived where prosecution levied
 charges which is a fact, doesn’t require evidence and can be proven by observation also –
neither proved nor disproved is also a fact – evidences not attuned is also a fact – court
says that in this neutrality state, we have to make a decision as to who will make
argument – defence or prosecution - it is basically presumed parties to be innocent on
the basis of the above two facts – establishing innocence on the basis of a presumption
which is based on presumption of innocent until proven guilty so now conclusion is
that prosecution will begin the proceedings
Principle of innocence until guilty says – that if this is the state of affairs then we can make
a presumption that the party is innocent - establishing innocence of party that is another
fact which is inferred that is presumption.
Fact is that charge has been levied which had neither been proved nor disproved and
on the bases of this, principle of presumption of innocence is applied and on the basis
of this a connection is made between innocence and neutrality and innocence of the
party is presumed – linkage is presumed. This presumption is important for the
proceedings to be started – other party to prove the guilt of person charged
Default presumption is innocence till proven guilty – in dowry example – rebuttable
– presumption is that death due to dowry – presumption of guilt – charged party to
prove not guilty, burden shifted
If at the beginning only, law is making presumption – seems biased towards the accused –
but it is important for any system to begin working

• And for matters there can be no evidences – question of law or matters of

discretion –
EXAMPLE – whether speed is reasonable or not – cannot be answered with evidence.
HCs take up matter as appeals under appellate jurisdiction only when evidence is
presented but can take up matters of fact also when appeal is there regarding fact as the
appellant is not satisfied or new evidence comes up otherwise, they take up cases only
when trial courts have already looked into evidences
Matters of discretion – can be taken up in an appeal – no pre-determined answers – there is
need of law to keep with evolution of society – so legislation provides general ideas and rest
left on court
➔ times when law required to be flexible -matters of discretion can become
those which have pre-determined answers or sometimes matters of pre-
determined law can turn into those of discretion
When the matter comes first time – matter of fact and discretion and when court has
provided an answer for it – it becomes answered – now when new case comes up regarding
similar matters and facts and laws have developed – courts already have an answer – now a
matter of less discretion – matter of discretion turned into one with pre-determined
answers
PUBLIC LAW AND PRIVATE LAW
Although this difference between them is made – reason why a law is under either category
may be particular to that law.
Simple differentiating manner-
That whenever state happens to be subject matter of a law – public – administrative law – state
is the party
All those areas where state is involved but not as party, only as law making body or adjudicating
body but not a subject or party to the law, can participate in making the law – private –
governing non-state or private members
Contract with state – state enters into contract – state can either perform sovereign functions or
might enter into transaction as a private entity. EXAMPLE – police powers are sovereign
functions of state. Opposed to this when the state of Rajasthan enters into contract with cement
company for transferring cement – private interest of state can be there – no legislative,
executive, administrative function, just a private contract – not sovereign functions
Difference cannot be so simple – cannot be on the basis of participation
Difference on the basis of kind of rights emanating from them-
• Private law based on voluntary and autonomy – autonomous relations; public –
powerful - subordinate relationship/ hegemony status
EXAMPLE 1 – we have to give tax to state – assessment officer is part of state, who charges
the tax, he takes tax from people – every taxation case has this relation according to provisions
in the law itself. A has to pay 20 as tax to AO and filed income tax return – A here is subject
to the state – unilateral transaction – here immediate reason for A to pay 20 to AO is
because it is provided in the statute and is compulsory – AO has charged in furtherance of
statute
EXAMPLE 2 – A and B – A to pay 20 to B as per contract – transactional arrangement
involved. Bilateral transaction but not very explicit – most fundamental principle of contract
act is consensus ad idem – whatever obligations incurred on you should be out of your
own volition – immediate reason for A to pay is because he consented for it
Exception - Public having flavour of autonomy and private having flavour of
hegemony and no volition.
EXAMPLE - International treaties – public law but the states are not in a hegemony involved
– autonomy involved – States/countries enter into treaty as per their own volition but when
applicable, they are applied to all the citizens of country that is public in application
EXAMPLE - Family law – even at time of birth, child can have certain property rights
inherited; certain restrictions in process of divorce, grounds to be fulfilled – not purely public
– whenever right is arising or dissolved – not out of volition – child was not a part of
transaction when property was bestowed on him but nature is of private law
• Laws can be made in several ways and have several considerations while being framed
Public – those set of laws governed by a pre-determined policy
 Private – not governed in such manner but in terms of individuals’ age-old practices
which have now been codified
EXAMPLE – taxation statute – financial bill framed according to which those earning
more than 40 Rs are to be taxed at 5% - there must be some reason, policy consideration
while providing for this tax rate – policy aim in mind of state behind this action of
imposing tax – imposed legal obligation as a means to achieve that aim – so, statute is
driven by a particular pre-determined policy aim state had in mind
EXAMPLE – family law – provisions in Hindu marriage act – with regard to seven rounds
for marriage to be complete, inheritance rights demarcated – lot to do with how people
followed – arising out of practices and now have been codified – reason has nothing
to do with policy objective – not evolving out of pre-determined policy but just
millennial practices which are now codified
All 3 models are correct in their own sense -
a. First model – partial sense because assumption – private individual to take care
of themselves; state obligation is to take care of state’s interest and of general
public, hence public law – private entity making private law
b. Contract act – second model of autonomy – self aspect arising out of volition
of our own – practices followed because of our own will
c. Family law – self aspect reflected out of one’s own practices as opposed to any
other entity imposing practices on one which would be public – self-oriented –
third model

TERRITORIALITY
Because state in itself is territorial, so in enforcement of law it also becomes territorial in nature
because of territoriality of state – enforceability aspect of law is territorial flowing from
territoriality nature of state
Law applicable within territory as itself provides for it – can be applicable to people residing
out of territory also. Law can be applicable beyond the territory also – difference between
enforceability and application
Law application – wants to apply up till territory but can be extended to other matters – can be
applicable not on basis of territory but on basis of people like those nationals living out of India
or personal characteristics of people
Law applicable on basis of personal characteristic – like on basis of religion – Hindu marriage
act, personal characteristic of individual dependant
Sometimes law may not be enforceable at certain places but can still have application – like in
section 4
IPC – applied all over India – all offences under IPC – rights and obligations will also be
applicable upon them (all over India) – applicability
Enforceability – committed offence which is prohibited by law, state will have to enforce the
legislation – invoking the act and punishments – enforceable means that it will also be
applicable
Can be applicable without enforceable but not vice-versa
Application different from enforceability
Application can go beyond physical territory – at times
Provision of murder applicable in territory – requirements of murder, rights and
obligations/provisions will determine the application of law
Law in India – applicable for a crime outside of India too – problem as to how to enforce there
– extradition treaty which enables to enforce them
Certain acts can be applicable in and out of territory – provisions in act/ requirements if
=fulfilled will be applicable outside also – not talking about enforceability/state mechanism
Other application of law besides territorial application
EXAMPLE 1 - Hindu marriage act – extends to whole of India – within territory of India;
section 2 – application to any person who is Hindu by religion section 2 (a) – personal
characteristics on which application is based – apart from being territorially defined – personal
laws – in addition to territorial aspect – first explains that to entire territory – territorial nature
= section 1 (2) - 2 aspects of application, not talking about enforcement
EXAMPLE 1 – IPC – section 3 punishments for offences committed beyond, but which maybe
tried within India - any person liable, by any 5 [Indian law] to be tried for an offence
committed beyond [India] shall be dealt with according to the provisions of this Code for any
act committed beyond [India] in the same manner as if such act had been committed
within 6 [India].
Section 4 - [ 4 Extension of Code to extra-territorial offences. —The provisions of this Code
apply also to any offence committed by— extra-territorial application
[(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be;]
[(3) any person in any place without and beyond India committing offence targeting a computer
resource located in India.] 10 [ Explanation. —In this section—
(a) the word “offence” includes every act committed outside India which, if committed in India,
would be punishable under this Code;
(b) the expression “computer resource” shall have the meaning assigned to it in clause (k) of
sub-section (1) of section 2 of the Information Technology Act, 2000.]
[Illustration] A, who is a citizen of India, commits a murder in Uganda. He can be tried and
convicted of murder in any place in India in which he may be found.
EXAMPLE 3 – competition act 2012 – violating competition in India is problematic/wrong –
section 32 in chapter 4 - if someone committed an act outside India but affects within territory
of India/affecting competition of India – even though act committed outside, the act will be
applicable extra-territorially – applicable upon actions committed in India and outside India
having affect in India – seeing the effect of act and not commission of act
Application of legislation defined – either by taking place of commission or effect of
commission into consideration
When court applies law in any of these following cases – one thing common is court is applying
provisions of Indian legal system – can there be a case when court applies legislation of some
other country?
Some kind of foreign element in a transaction – contract between Indian and foreigner – section
11 (capacity to contract) - any law to which he is subject in section 11 – if not Indian, that
person’s majority age will be decided as per the legal system of his country – allows for court
to refer to legal provision of another country when such person is involved in a contract act
with an Indian – now court got a dispute between Indian and foreigner – section 11 cannot be
applied to that US foreigner – so court will look into US’s criteria to determine majority –
application = which law, how law is interpreted and to what all people; enforcement = state
mechanism, police power; although here the Indian court applies/refers to foreign provision, it
is basically doing so under Indian contract act only – allowed by ICA to refer to foreign legal
system
Court will have to look into foreign system – 2 issues = interpretation aspect of that provision
of Indian system which allows to refer to foreign system and if yes then has it referred to that
foreign system properly – so interpretation of section 11 is question law and referring to foreign
provision is deemed to be such it is considered factual evidence. Referred to foreign legal
system or not is a question of fact
If now, domestic provision doesn’t provide for courts to refer to foreign provisions – then it
cannot mandatorily but can do so as per discretion

Personal characteristics determine applicability too – like religion – main reason for referring
to these

MODULE - LEGAL REASONING

Legal conclusions derivable out of evidences – special and legal process of conclusion drawing
– legal deduction – legal reasoning.
Precedent – fundamental thing we were drawing out the precedents – drawing similarities
between the cases
Legal reasoning – every other provision that is its part, there will be a particular way to perform
a function – we discuss, prove, disprove our legal arguments – some kind of reasoning very
discreet
Try to find peculiarity about legal reasoning – law is very pragmatic/practical
 • If the logic says so, it will be so, whether one likes it or not – so long as principle exists,
it is applicable as it is – form of reasoning in maths, we follow whether like it or not or
useful or not but law in itself is very application based, it is dependent on
usefulness/purpose
• We apply a law on a particular action (of govt or private entity) – aspect of action
always involved – law will justify an action or go against it/prohibit it or allow it
• Whenever we apply reasoning, purpose of logic – whether conclusion derived is proper
and right or not – finding out truth with method of finding is based on reason and logic
– epistemic goal – knowing truth of an event – deductive logic to be certain that
conclusion is true but law is not always concerned about what is law, there are non-
epistemic goals also with court – principle of natural justice for instance, if someone
has committed a murder, he has to be given right to defend himself – cannot use
narcotics to get the facts or truth out of a person for example – law applied not only for
purpose of finding truth but because of some policy concern like ensuring public
health/fairness etc – balance between epistemic and non-epistemic goals whenever law
is applied.
• We have rules and regulation applied by state machinery – always not necessary that
resources are sufficient so, reducing standards - EXAMPLE – proof beyond reasonable
doubt – different from proving something 100% as true but not that much of resources
so, scaling down standards – not practical for policy makers to reach an ideal state of
what is required as resources are not in abundance – inherent limitation while applying
law so, use resources in a limited sense to arrive at the best possible solutions
Not always possible to apply logic while applying law in traditional sense, but can be applied
to some extent with a mix of practicality

Rule based reasoning = How to apply reasoning –

applying rules on facts = rule can be true or false or undecided
Rules structured by giving conditions and then determining whether those conditions are
fulfilled. EXAMPLE – valid contract – consent free, lawful consideration, capacity and lawful
object and not declared void by law – section 10 tells consequences (agreements are contracts)
and conditions or set of facts (3Cs and 1 O, not void), when conditions fulfilled, consequence
will be achieved – reinstating in ‘if and then format’/conditional format (if Cs and O, then a
contract) – most regulations can be reinstated in this format for creating set of conditions which
are similar so they warrant similar consequences – statement of facts (3Cs + 1Os) are
conditional provisions taken in a similar fashion to yield a similar kind of consequences – most
rules are conditional provisions in an if and then format. Most rules are conditional – rule
provides for certain set of facts and provides for the outcome that is to be warranted out of
those conditions in rules itself – goes on to treat similar conditions in a similar fashion.
Reasoning follows a bottom top model in a sense that you have to first prove relevant facts
demarcated under a particular fact – from a greater number of conditions that are there, you go
to a narrower concept in the form of outcome under the rule. Role of exceptions under rule –
If then format but logic Is different – if exception proved, outcome not warranted – while
applying legal rules on acts – sometimes given part also gets modified at times
Every rule can be framed in if-then aspect – like if conditions X, Y and Z conditions are
fulfilled, then A will be outcome/must be – 2 propositions joined out of which one becomes
condition and other becomes conclusion. EXAMPLE – all agreements are contracts under
section 10 when facts are fulfilled of 3Cs + 1 O = one conclusion that it is a contract and others
are facts which are joined by conditions.
Normally, any statement – like I am teaching LM for first year – can be either true or false –
only these 2 values are generally assigned – possible values – now a legal proposition based
on if-then format = 3 basic values attached – condition is either true or false for facts or it is
not decided: 3 values possible when a rule is applied on a factual scenario =
1. Proved
2. Disproved
3. Not been decided
When matter before court for first time – undecided – if-then proposition neither understood to
be true nor to be false, it is just undecided value. Depending upon type of presumption, it is
then decided which side has to prove (defence or prosecution) (innocent until proven guilty) –
undecidedness position will change then when victim proves guilt
Every legal proposition based on if-then format can be assigned three possible values.

Every legal rule can be pictured in this format of downward tree

Section 10 – outcome is that the agreement is a contract – conjunctive conditions so, have to
be proved together.
Acting like an exception in cases to general rule where there is specific requirement for
agreement to be registered = Nothing herein contained shall affect any law in force in 1[India],
 and not hereby expressly repealed, by which any contract is required to be made in writing 2or
in the presence of witnesses, or any law relating to the registration of documents.

Agreement is a contract
unless Exception – nothing
AND …. documents

Lawful Lawful Free capacity

consider object Conditions
consent
ation

‘If and then’ format = every rule provides for conditions whose fulfilment will provide for
outcomes but the fulfilment of exceptions will not make the outcome warranted. Exception can
either be proven or not proven or undecided – person taking the exception has responsibility to
prove it
Proving the conditions and moving to upward branch p to prove and then the outcome. Proving
a lot more first and then less to prove as we move upwards.
Distinctive aspect about applying reasoning – while interpreting problem or applying method
to solve problem doesn’t change the problem. EXAMPLE – math problem and have to prove
something through steps – person can be wrong while applying steps but problem remains the
same, method doesn’t change it – normally this only happens while applying reasoning – but
in common law, judgements as and when applied by culling out ration, they keep on expanding
or narrowing with time – while interpreting, applying rules on facts, there are times when
otherwise things we were confused about, get clarified that is whether they are covered in rules
or not – while applying for example precedents or simple rules – if-then format can be expanded
with interpretation of rules. Normally distinction between application and problem but in law,
while applying law or rule, while application it can undergo certain changes too
EXAMPLE – article 12 – functional and structural approach etc. – how to shape a rule with
interpretation. Article 12 defines what is a state – reframed in if-then format – conditions will
be:
1. Under the control of GOI
2. Legislature of each state
3. Other local authorities within territory of India
Disjunctive conditions separated by ‘or’. ‘Other authorities’ lot of controversy = other bodies
or not included – every time new interpretation included a new body which would not have
been possible had another structural approach been taken – while interpreting article 12, its
texture has also changed because the conditions to be fulfilled for being a state kept on
narrowing down or expanding.
Bottom most part of every branch in figure 1 = conditions – when fulfilled, move upwards –
every rule ends with factual scenarios which have to be proven with evidences to establish
conditions

Evidence evaluation
in the given system when rule is already provided – documents and transactions. Some
evidence given regarding the documents
The lower in the branch we move, certain factual conditions are needed to be proved for which
help of evidence is required which are to be evaluated. To prove or disprove any factual
condition, help of evidences is needed and each one to be evaluated. Rule – facts fulfilled –
outcome – prove facts by evaluating evidences
EXAMPLE – 1
A matter taken up – dispute arisen with respect to murder and evaluating the finger prints and
blood groups is required – scientific opinion required – this is also a matter of evidence as it
will prove or disprove factual evidence – coming from experts
EXAMPLE – 2
Oral evidence was a consideration or not – element of consideration was there or not – any
value – these are also evidences – documents
Difference between 2 types of evidences – in 1 = lot more objective, can be certain abut an
opinion as it is backed by scientific concept/statistics/analysis; 2 = no scientific backing
Evidence evaluation involves reasoning – depending upon evidence that is brought, different
value can be assigned to them – maybe wrong or correct or some other value like highly or less
probable evidence, how much it is true – set of values assigned for every evidence. Evidentiary
statements can be evaluated either as a. true or false or as b. probability level
Evaluating any evidentiary proposition – first thing – various scaled in which evaluation can
be done – true-false or highly-less probable or highly-less certain or not decided – depending
upon nature of evidence
If nature is objective – scale narrow; if subjective - wide
How to determine appropriability – how do we know till where to prove a statement
EXAMPLE - a document is there – in order to take it as evidence, does it have to be proved
100% true or highly certain or probable? Depends on standard of proof that the rule requires –
for example
4. if the reasonable standard of proof is to prove beyond
reasonable doubts, then that evidence will be taken to
prove a fact if you manage to leave aside all reasonable
doubts
5. another standard – based on preponderance of probability
– wherein all that is required is for court to balance out
all evidences and evaluate which one as a higher weight
two parties A and B – dispute – standard of proof can be that you have to be better off in the
preponderance of probability – both will produce evidences to prove their arguments and they
will be required to have a better weightage than the other and not beyond reasonable doubts
if standard is to prove beyond doubts – evaluation made for evidences will be higher when
compared to preponderance of probability (lower is the evaluation standard)
generally, in criminal matters – standard of proof is proving beyond reasonable doubts and in
civil – preponderance of probability – contractual matters too

Aspect of relevance and admissibility =

every factual proposition has evidence which can be used to prove or disprove a fact –
evaluating evidence, it should be relevant – how evidence is connected to the fact and to what
extent, if it in itself is sufficient – has to be taken into consideration while proving or disproving
a fact
dispute – A murdered B or not – C witnessed it or heard it – will it be relevant in proving A’s
guilt – whether logically connected or not to proving the guilt or fact – proving the fact to be
probable or highly certain.
Even when evidence is highly relevant, can court refuse to take it into consideration?
Every relevant evidence might not always be admissible – relevance = determines the logical
connection and admissibility aspect takes into consideration if it can be referred to or not –
example is narcotic analysis for proving guilt is relevant though not admissible to prove fact
under rules to warrant an outcome
All issues requiring evidences are of facts but now there can be question of relevance and
admissibility in evidence also – aspect of admissibility is a legal question – matter of evidence
but there is a pre-determined answer as to something is admissible or not
In a rule, there are many conditions – article 12 has like 4 conditions – every condition
providing for a certain fact and every condition requires evidences and all those conditions are
to be read conjunctively, then you have to prove and disprove every one of them and value of
each condition will vary depending upon their nature – then while evaluating prohibitive values
of each condition has to be balanced out.

What kind of logic is used-?

While applying rules/reading a judgement, what form of logic goes on?
Traditionally speaking, there are 2 forms of reasoning – deductive and inductive form
Deductive = beginning with major premise in the form of general proposition and then cull
out/deduct/infer he implication from it – EXAMPLE
Premise 1 – all men are mortal
Premise 2 – Aristotle is a man
Conclusion – Aristotle is mortal – all encompassing – every kind of situation included. This I
syllogistic argument. The main attractive aspect = if premise is true and you apply from of
reasoning correctly, conclusion warranted will be correct every time – syllogistically deducting
an argument. Problem is that to apply it, there has to be a general proposition to begin with.
Legal rules of any kind, we might not be possible to come across a rule all encompassing, its
meaning might be ambiguous, which facts are covered, which are not – difficult to apply
deductive reasoning strictly. While trying to find ratio of case, new set of facts – might be
similar or dissimilar in nature so, the creative part is trying to figure out which aspect of set of
facts is relevant. A is driving at 70kmp and meets an accident on highway – there might be a
rule which says you cannot drive negligently on highway so while applying this rule, it has to
be determined which aspect of this rule is relevant
To find relevance of facts and then understanding similarity aspect of it = important
Legal arguments cannot be strictly deductive while applying because every fact has a similar
and a dissimilar aspect
Inductive reasoning = opposite of deductive – instead of beginning from general proposition,
particular pieces of info are taken and then conclusion is arrived at. EXAMPLE – butcher is
there and a chicken – everyday at 11 he rings bell, cage opened, chicken out, food given to
chicken – does that till 100 days – on 101st day = reasonable for chicken to expect that when
bell is rung and cage opened, he has to go out and feed – observes cause and effect to exist in
a particular fashion for a specific length – expectations to be existing in the same way in future
as the number of observations exist as evidence – 2 phenomena have existed together for a
number of observations so expected to behave those in a certain manner = when for a number
of observations, 2 phenomena are observed to be existing together, one can be expected to be
because of the other – applying inductive reasoning.
Reasonable to assume but the expectation might not always be fulfilled – not a warranted
conclusion – it gives a probable value – what to expect
New set of facts – 90% of facts are similar to earlier case – can this be the reason to apply those
rules to these sets of fact? O because those similar ones might not be relevant altogether
While trying to find out if prior legal rule is applicable, number part is not relevant – not
applying legal rule inductively on those set of facts.
While making argument in favour or against – what we are truly doing is we are trying to create
right kind of analogy – what can be taken the right kind of example for this – law majorly
functions by help of analogy

Legal arguments – while making, what are we actually doing and

looking at? = analogy
EXAMPLE – Steamboat example (ratio and obiter) – relied on 2 precedents – one to reach
judgement, other for distinction – should the operator be liable – innkeeper (liable as an insurer
for loss of goods) and railroad (open ended) = process that was deployed here : when for the
first time this question came before the court – in order to infer a conclusion, they took help of
examples/precedents working as examples – then observed that there are many ways the
operator is similar to innkeeper/railroad operator and in many a ways, it is different also – when
the judgement was given fixing responsibility – court looked into examples and determined
relevant characteristics of the current case compared with examples – looked only at those
similarities and dissimilarities which happened to be relevant – in steam and inn, doors locked,
relevant similarity and so, whatever conclusion was reached in case of inn, should also be
applied to steamboat – analogical argument
X – steam,
Y and Z – inn
Step 1 – X has locked doors, there is an operator and a client
Step 2 – Y and Z has these features too
So, these are relevant features – G and H
Step 3 – there is one more additional characteristic F, whenever there is a relationship of
operator and client, a responsibility lies on operator to be liable and function as operator for
the client
Step 4 – whenever G and H are present, F will be there too
Step 5 – therefore, F is present in X too
Also, hold true while interpreting an issue – a particular article or section of an act – question
to include a fact requires looking into rules present in ‘if’ part of format
EXMAMPLE – X and Y are 2 conditions in a section and then proceeding in the same way
Resolving problems by relevant characteristics – what inference to be taken
EXAMPLE – ejusdem generis – if there is section enumerating for number of situations such
that the general part is followed by set of facts – general term also belongs to same genus as
that of set of facts. Section says prices of fruits not more than Rs 10 per kg, there is definition
term – fruits include, oranges, watermelon, apple and other types of edible items (general term).
Question arises what is other – now other is followed by set of fruits like oranges, apples, then
other edible items need to be of same class as these – process applied of using specific examples
to determine what is meant by general term
Relevancy cannot be determined by deductive and inductive reasoning, that is why employing
analogy exercise – conclusions arrived at through analogy – conclusions reached through
relevance
Any other form of logic behind taking analogy – third way of reasoning – abductive form of
reasoning – neither deductive nor inductive
ABDUCTIVE REASONING
Going in a different path – what needs to be explained is given – we arrive at best possible
explanation of it and then if P exists and if H happens to be the best possible explanation, then
H
A conversation with B – smoke coming out of mountain, what Is reason – B says smoke due
to fire – most probable reason – arguments in line of what can be the best probable explanation
and we take it as a valid explanation – observing a phenomenon and finding its best possible
explanation and assume it to be correct – when insufficiency of information

True abduction – going through examples, we find out best possible way to understand facts
and through that principle finding out relevant parts of case and how they happen to be similar
or dissimilar to the other. Looking for justification that can warrant for that similarity
EXAMPLE - Legal case – steam boat case – presented before court – first question is to how
to determine liability of operator – there will be a set of facts like doors are locked, relationship
between operator and client – so court tries to understand context in which facts exist which
are to be explained that is best possible explanation to appreciate facts – look for various
examples and apply abduction process – like that of inn keeper and rail road operator to
understand facts better – similar to process of abduction – sometimes also there is ambiguity –
apply the principle of abduction process
Step 1 - facts were presented – ambiguity
Step 2 – looking in factual aspects – best way to understand
Step 3 - Trying to look for other cases – similar approach – abduction done – arise at conclusion
Step 4 – appreciating facts – in which context are facts to be understood
Step 5 – principle itself will explain relevancy of facts while comparing with the examples
Step 6 - After this, arrive at justification – to warrant for the similarity
Step 7 – deductively applying principle on facts of the case
The principle can be general that can be applied deductively or it can be specific so then, we’ll
have to apply it inductively – again confirming the principle as it is not certain, by looking at
other cases so, it is kind of induction here
One common thing – law functions by analogy

Informal fallacies in Legal arguments –

can law have room for bad arguments which are otherwise considered illogical in day-to-day
talks? Yes, for example sometimes while proving someone’s innocence, their character is also
taken into consideration like person hasn’t committed crime his entire life so, he cannot do it
now
Argument wrong in structure or in way it is argued – fallacy – not to be considered valid for
certain reason – faulty arguments/invalid
EXAMPLE 1 - Premise 1 – all men are mortal
Premise 2 – Aristotle is a man
Conclusion – Aristotle is not mortal
Here – wrong argument
Fallacy = arises out of an error
EXAMPLE 2 – premise 1 - all apples are oranges. Conclusion - so, all oranges are apples –
principle of exclusion of middle argument violated
Here – some principle violated – fundamental principle of syllogism/exclusion violated –
formal fallacy – a flaw in the process followed – fallacious arguments
These both examples have error where a principle has been violated
EXAMPLE 3 – A argument with B over a topic – A to counter B, says to B – you always lie –
illogical way to counter someone – A not attacking argument and not countering but attacking
the person – flaw is informal – no formal exclusion of principle – argument structured is such
that it doesn’t make sense – accepted as good argument when talking about witness or bail but
not in legal argument – not logical but flawed – informal fallacies
Error can be –
1. formal – example 1 and 2
2. informal – example 3
Legal arguments – argumentative in nature – more often the kind of errors committed here are
of nature of informal sense of fallacies.
In legal cases, an individual does want to rely on someone’s character while rejecting the
argument – EXAMPLE – in family arguments or cross-questioning a witness on trial, a lawyer
discredits the witness, he questions witness’s ability – though it is a fallacious argument – it
makes sense here to use it in order to rebut the argument
EXAMPLE - a case going on in which lawyer A brings up case of X v. Y as a precedent to
make argument and in order to rebut this, another lawyer B says that this case cannot be taken
up as an authority as whatever decision was given, it was given to make a new rule by HC,
judges were biased against X – not a valid argument – decision given by a court cannot be
attacked by attacking the court, the judgement has to be addressed, person who made the rule
cannot be discredited to discredit the argument but is accepted as good argument in case of
witness or bail etc.