COURSE MANUAL

LEGAL METHODS

Fall,2020

(AY 2020- 2021)

SEMESTER I (BBA. LL.B, B.A., LL.B & LL.B)

Instructors:

Dipika Jain| Sandeep Kindo| Sandeep Suresh| Sourav Mandal| Amit

Upadhyay| Radhika Chitkara| Dolashree Mysoor| Oieshi Saha

Assistant instructors

Shambhavi Shivani | Ayushi Vashisht| Siddhanth Prasad | Ayushi

Agarwal

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 CONTENTS

PART I

General Information………………………………………………………………………………..3

PART II

a. Course Description…………………………………………………………………………..4
b. Course Aims…………………………………………………………………………..………..5
c. Intended Leaning Outcomes ……………………………………………………..........7
d. Grading of Student Achievement……………………………………………............8

PART III

Keyword Syllabus…………………………………………………………………………………..10
Course Policies……………………………………………………………………………………….10

PART IV

Lecture Programme …………………………………………………………......................12

PART V

Weekly Readings

Week I-II…………………………………………………………………………………….13
Week II- III………………………………………………………………………………… 14
Week IV………………………………………………………………………………………14
Week V…………………………………………………………………………………….....15
Week VI………………………………………………………………….……………………16
Week VII……….…………………………………………………………………………….16
Week VIII…………………………………………………………………………………….17
Week IX……………………………………………………………………………………....19
Week X…………………………………………………………………………………………20
Week XI.………………………………………………………………………………………..21
Week XII……………………………………………………………………………………….22
Week XIII………………………………………………………………………………………23
Week XIV………………………………………………………………………………………24
Week XV……………………………………………………………………………………….25
Week XVI…………………………………………………………………………………..….26

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 PART I

General Information

General Information on, Legal Methods, offered by Jindal Global Law School

of the AY 2020-21

Course Title: Legal Methods I

Course Code: LW1101

Course Duration: One Semester

No. of Credit Units: 4 credits (BA, LLB; BBA, LLB and LLB)

Level: Under-graduate level (Foundational)

Medium of Instruction: English

Pre-requisites: Nil

Pre-cursors: Nil

Equivalent Courses: Nil

Exclusive Courses: Nil

The above information shall form part of the University database may
be uploaded to DSpace into the KOHA Library system and catalogued
and may be distributed amongst the first-year students.

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 PART II

A. Course Description

This introductory course covers legal methods for students of law in their first
year. In this course, students will be introduced to the themes of law, morality,
and justice, undertaking an intersectional analysis of the emancipatory and
oppressive potential of the law. It will introduce students to the various methods
of classifications of law, such as domestic and international law, procedural and
substantive law. This course will discuss key questions such as, is law political?
What are the hierarchies in the legal profession? Is Law universal?

Students will learn to read statutes, cases and other legal and legally-relevant
material, and to identify and resolve issues that involve the law. The syllabus
includes selected analytical legal materials and aims to provide a familiarity with
the context, syntax and grammar of law that is vital to address situations that
lawyers, judges and legal institutions have to regularly engage with. Through the
detailed study of selected legal materials, the course also hopes to provide
students of law with a picture of the different approaches, attitudes, theories and
philosophies that make law such an exciting subject of scholarly studies.

The students will learn technical skills like how to research? how to read and
brief a case law? how to read a statute? In addition to working directly with
selected original and appellate decisions (and the arguments and pleadings
involved in these), students will also learn to use important texts and writings
that hold a strong influence on contemporary legal method and the law. A few of
the cases and texts in the syllabus have been specifically chosen to build a
foundation for the sustained study of legislative history, institutional roles,
statutory interpretation, and legal reasoning.

Further, in this course, students will also develop skills in research, writing and
critical thinking. How does one research effectively? What does it mean to
critically engage with a text? How are Kafka and Manto relevant to a first year law
student? By analysing judgments such as Vishaka v. State of Rajasthan, and
engaging with popular culture material through films such as Fandry and Court,
students will also understand the structural barriers of caste, gender, sexuality
etc. that affect one’s access to the law and to justice.

Stories and literary excerpts, films, workshop-format interactions with experts,

and field trips to institutions will contribute to the holistic treatment of the
subject matter.

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 B. Course Aims

The course:

 Develop an interdisciplinary understanding of the concepts of justice,

morality, and law

 provides familiarity with legal structures, processes, and institutions.

 fosters ability to identify, read, analyze and formulate substantive

arguments in favor of or against a legal proposition

 develops critical understanding of the processes of law-making by

legislative, judicial, administrative and informal law-making bodies

 Introduces importance of court craft and legal reasoning

 Introduces the terminology, syntax and meaning of law through a step-by-

step systematic approach

 fosters ability to identify relevant information and distinguish it from

irrelevant information in a legal context

 seeks to develop skills that law students need for effectively researching
and using cases, statutes and other legal materials

 introduces the structural hierarchy of values and norms in legal systems

 encourages legal reading and writing in a clear, coherent and critical

manner

 develops an interdisciplinary perspective to the study of law and its role in

our lives

 Develops critical thinking in law through introduction of various school of

thoughts and appreciation of legal theory.

 Inculcate love for reading and critical thinking in Law

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At the end of the course, the student will be able to:

demonstrate an ability to locate, identify and analyze the sources of law in

a legal system

conduct case law analysis, i.e. identify and understand the principles and
policies supporting the decision

develop a critical understanding of the role of courts, judges and

legislatures and other administrative organs

approach legal issues in a structured manner and frame responses to the

issues as a lawyer would do

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 C. Intended Learning Outcomes

Course Intending Weight Teaching and Assessment

Learning Outcomes Learning Tasks/
Activities Activities
By the end of the course, students Students’ ability
should be able to: to grasp and
I. Critically read 40% (i) Lectures: critically evaluate
court decisions, Students will be the topics/issues
statutes, scholarly introduced to a set discussed in the
legal opinions, and of key texts and syllabus will be
other legal ideas in the critical tested through
material. tradition. These continuous
II. Comprehend the texts and ideas will assessments
principles and be presented in through the
policies supporting conversation with semester as well
legal decisions each other and with as an end-term
from multiple the analytical written
perspectives tradition that has examination.
informed by been covered in
various theories of Jurisprudence I.
Law.
I. Demonstrate an 30% (ii) Reading:
interest in an Students will
interdisciplinary acquire the skills to
approach to law do critical readings
and acquire basic of texts.
knowledge on legal
reasoning. (iii) Writing:
Students will learn
Communicate 30% to draft case briefs,
critically, both legal opinions,
orally and in critical briefs and
writing, various reflection
perspectives in law. papers/short
opinion pieces/case
comments.

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 D. Grading of Student Achievement

To pass this course, students must obtain a minimum of 50% in the

cumulative aspects of coursework: tutorials, moot, and final
examination. End of semester exam will carry 50 marks.

The details of the grades as well as the criteria for awarding such grades are
provided below.

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding
work with strong
evidence of
knowledge of the
subject matter,
excellent
organizational
capacity, ability
to synthesize and
critically analyse
and originality in
thinking and
presentation.
A+ 75 to 79.75% Excellent Sound
knowledge of the
subject matter,
thorough
understanding of
issues; ability to
synthesize
critically and
analyse
A 70 to 74.75% Good Good
understanding of
the subject
matter, ability to
identify issues
and provide
balanced
solutions to
problems and

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 good critical and
analytical skills.
A- 65 to 69.75% Adequate Adequate
knowledge of the
subject matter to
go to the next
level of study and
reasonable
critical and
analytical skills.
B+ 60 to 64.75% Marginal Limited
knowledge of the
subject matter,
irrelevant use of
materials and
poor critical and
analytical skills.
B 55 to 59.75% Poor Poor
comprehension
of the subject
matter; poor
critical and
analytical skills
and marginal use
of the relevant
materials.
B- 50 to 54.75% Pass “Pass” in a pass-
fail course. “P”
indicative of at
least the basic
understanding of
the subject
matter.
F Below 50% Fail Fails in the
subject

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 PART III

a. Keyword Syllabus

Critical thinking, Law and Morality, Marginality, Emancipation and Oppression,

Legal Reasoning, Law is Politics, Case Briefs, Logic, Judicial Activism, Legal
Theories, Legal Systems, Civil Law and Common Law, Justice, Statutory
Interpretation etc.

b. Course Policies

Academic Integrity and Honesty

Learning and knowledge production of any kind is always a collaborative process.

As such, collaboration demands an ethical responsibility to acknowledge who we
have learnt what from, and how reading and learning from others have helped us
shape our own ideas. Even originality requires an acknowledgement of the
sources and the processes that helped you achieve it. Thus, any idea, sentence or
paragraph you refer to or are inspired by must be cited in the piece of writing or
any presentation being made. Any source from the internet, articles, books,
journals, magazines, case law, statute, photographs, films, paintings, etc. must be
credited with the original source. If the source or inspiration for your idea is a
friend, a casual chat, something that you overheard, or heard being discussed at a
conference or in class, even these must be credited. If you paraphrase or directly
quote from a web source in the exam, presentation or essays, the source must be
explicitly mentioned. The university has strict rules with consequences for
students involved in plagiarism. This is an issue of academic integrity on which
no compromise will be made, especially as students have already been trained in
the perils of lifting sentences or paragraphs from others and claiming authorship
of them.

Cell Phones

Students must keep their cellphones on switched off/ flight mode.

Laptops and Similar Gadgets

Students may be permitted to use their laptops in class for the purposes of
reviewing reading materials and taking notes. Under no circumstances should
laptops be used in class to access email, social or other networking websites or
use instant messaging software. A violation of this policy will result disciplinary
action which may include the forfeiture of this permission for the remainder of
the semester. The instructors may withdraw this permission at any time.

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Disability Support and Accommodation Requirements

JGU endeavors to make all its courses accessible to students. All students with a
known disability needing academic accommodations are required to register with
the Disability Support Committee dsc@jgu.edu.in. The Committee has so far
identified the following conditions that could possibly hinder student’s overall
well-being. These include physical and mobility related difficulties; visual
impairment; hearing impairment; medical conditions; specific learning
difficulties e.g. dyslexia; mental health.

The Disability Support Committee maintains strict confidentiality in its

discussions. The students should preferably register with the Committee in the
month of June/January as disability accommodation requires early planning.
DSC will approve and coordinate all the disability related services such as
appointment of academic mentors, specialized interventions and course related
requirements such as accessible classrooms for lectures, tutorials and
examinations.

All faculty members are required to refer students with any of the above-
mentioned conditions to the Disability Support Committee for addressing
disability-related accommodation requirements.

Safe Space Pledge

This course will discuss a range of issues and events that might result in distress
for some students. Discussions in the course might also provoke strong emotional
responses. To make sure that all students collectively benefit from the course,
and do not feel troubled due to either the contents of the course, or the conduct of
the discussions, it is incumbent upon all within the classroom to pledge to
maintain respect towards our peers. This does not mean that you need to feel
restrained about what you feel and what you want to say. Conversely, this is
about creating a safe space where everyone can speak and learn without
inhibition and fear. This responsibility lies not only on students, but also the
instructor.

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 PART IV

LECTURE PROGRAMME

Module Lecture Topic

1 UNDERSTANDING LAW, MORALITY, & JUSTICE

2 FOUNDATIONS OF MODERN LAW

3 INTRODUCTION TO THE INDIAN LEGAL SYSTEM

4 SOURCES OF LAW

5 HOW TO READ A CASE

6 INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM

AND JURY TRIALS

7 IS LAW POLITICAL?

8 LEGISLATION AND SUBORDINATE LEGISLATION

9 CANONS OF STATUTORY INTERPRETATION

10 LOGIC AND LEGAL REASONING

11 THE DOCTRINE OF PRECEDENT

12 LOCATION OF RATIO AND ITS CONTROVERSIES

13 PROCEDURAL CONCEPTS IN LAW

14 LAW AND JUSTICE

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 PART V

WEEKLY READINGS

Each module has its own set of essential readings, including articles, short
stories, films and other material as necessary. Where needed, recommended
readings have also been provided. Although not specified in the weekly readings
list, Glanville Williams’ Learning the Law can be used as reference throughout
the course.

Weeks I and II

UNDERSTANDING LAW, MORALITY & JUSTICE

In the first week, the focus will be on the different approaches to the concept of
law, justice and morality. The reading materials and discussions will introduce
and explore the key question of ‘What is law?’ and will lay down the foundations
for a general framework for legal thought.

A useful starting point will be a discussion of the fictitious case of Speluncean

explorers authored by Lon Fuller. "The Case of the Speluncean Explorers".
Read this case carefully and consider which of Fuller’s fictitious judges you would
agree with. You may also consider:

1. What is Law? How is it related to the ideas of Justice and Morality?

2. What is the correct philosophy of law?
3. What is the proper role of judges?
4. What is the relationship between justice, the law, and the various agencies
of the government?
5. How should judges rule in this case?

Essential readings:

1) Lon Fuller, “Speluncean Explorers”, 62(4) Harvard Law Review (1949)

pages 616-645.

2) Franz Kafka, “Before the Law“ in The Trial

Recommended readings:

1) Art Spiegelman, Maus (Excerpts)

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 Weeks II-III

THE FOUNDATIONS OF MODERN LAW

Law is widely considered to draw its authority from the powers of political
institutions. Others consider law to be grounded in judicial decisions and the
customary practice of nations. What are the sources of law? What are the
concepts and principles underlying the law? The concepts of international and
municipal law, substantive and procedural law will be introduced in the class.

This session will briefly chart the evolution of law from naturalist to positivist
legal systems. It will introduce civil and common law systems, and the differences
between adversarial and inquisitorial methods, focusing on the nature and
evolution of the mixed common law system found in India before undertaking a
comparative analysis of other Anglo-American legal systems with civil law
systems (e.g., the law of most nations of Continental Europe).

Essential readings:

1) Margaret Fordham, “Comparative Legal Traditions – Introducing the

Common Law to Civil Lawyers in Asia”, 1 The Asian Journal of
Comparative Law 1 (2006), pages 1-5.

2) Overview of the Common and Civil Law Traditions

https://www.law.berkeley.edu/wp-content/uploads/2017/11/
CommonLawCivilLawTraditions.pdf

Recommended Readings:

1) B.S. Chimni, “The Past, Present and Future of International Law: A

Critical Third World Approach”, 8 Melbourne Journal of International
Law 2 (2007).

Week IV

INTRODUCTION TO THE INDIAN LEGAL SYSTEM

This session will provide an introduction to India’s legal system, its organization
and administration. Key attributes of a legal system will be identified and
discussed. Study of the foundational aspects of the Indian legal system, its
evolution as a common law system, and the role of the Constitution.

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Essential Readings:

1) Nick Robinson, “Judicial Architecture and Capacity” in Sujit Choudhry,

Madhav Khosla & Pratap Mehta (eds.), The Oxford Handbook of Indian
Constitutional Law (Oxford University Press, 2016), pages 330- 336, 343-
347.

2) Rohit De, “Introduction” in A People's Constitution: The Everyday Life of

Law in the Indian Republic (Princeton University Press, 2018), pages 1-3,
5- 6, 11 (Last para), 15.

3) Saadat Hassan Manto, The New Constitution (A short story)

4) Constitution of India – Preamble and selected Articles (14, 19, 21)

Recommended Readings:

1) Mahendra Pal Singh and Niraj Kumar, ‘Tracing the History of legal System
in India’ in The Indian Legal System : An Enquiry (Oxford University
Press, 2019), pages 1-23.

2) V.S. Deshpande, “Nature of Indian Legal System” in Joseph Minatour

(ed.), Indian Legal System (Indian Law Institute, 2nd Ed., 2006) pages 1-
21. [available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/738/5/Nature
%20of%20the%20Indian%20Legal%20System.pdf]

Week V

SOURCES OF LAW

This session will provide an overview of primary and secondary material, and
how to identify each when doing research. There will also be a short introduction
to researching effectively online and offline. Students will learn about the
different sources of law and complete an assignment on researching and citation.

Essential Readings:

1) Uma Narayan, “Sources of Indian Legal Information”, 7 Legal

Information Management 2 (2007), pages 133-139.

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 Week VI

HOW TO READ A CASE

This session will cover the basis of reading cases and preparing case briefs. What
are the relevant facts? How does one identify the issue(s) in case? What is the
holding and what reasoning did the judges use to get to the holding? What is the
relevance of procedural history of a case? This class will read one case from a
common law jurisdiction and the other one from a civil law jurisdiction to
comprehend the difference in judgements in the two legal systems.

Essential Readings:

1) Orrin S. Kerr, “How to Read a Legal Opinion: A Guide for New Law
Students”, 11 The Green Bag 2d (2007), pages 51-63.

2) French Cour de Cassation case (on complete reparation for injuries), Cass.
2e civ., Feb 22, 1995, 1996 D. Jur. 69

3) Lucy D’Souza v. State of Goa, 1989 SCC Online Bom 278

Week VII

INTRODUCTION TO CRIMINAL JUSTICE SYSTEM & JURY TRIALS

This session will introduce the criminal justice system and jury trials in India.
Various statues and codes relevant to criminal justice will be examine and
students will learn how the system works, especially in regard to the burden of
proof, through the Nanavati case. India had a thriving jury system that was
eventually abolished in 1974, and students will engage with jury trials through the
Nanavati case and the process and methods of collection of evidence; concepts of
examination- in-chief and cross-examination, etc.

Essential Readings:

1) K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605

2) Soutik Biswas, “Parsi matrimonial courts: India's only surviving jury

trials,” BBC News (2015)
https://www.bbc.com/news/world-asia-india-34322117

3) Mrinal Satish, ‘Chapter 2: An Introduction to the Indian Criminal Justice

System’ in Discretion, Discrimination and the Rule of Law: Reforming

16
 Rape Sentencing in India (Cambridge University Press, 2017), pages 15-
34.

Recommended Films:

1) 12 Angry Men (1957)

Optional:

1) Rustom (2016) or Achanak (1973) -

2) Rashomon (1950)

Weeks VII-VIII

IS LAW POLITICAL?

This session is divided into two parts and will give students the opportunity to
engage with two important cases – ADM Jabalpur and Vishakha.

The first part will cover the ADM Jabalpur case, discussing the finer nuances of
politics in law and the role of judges in the legal system. How much creative
power does, and should a judge have? Is a judge neutral? Is the Law neutral,
stable and universal?

The second part will cover the Vishakha case and engage students in
conversations on caste, indigeneity and gender, as well as the use of international
law by Indian courts. Important critical questions on law and marginalisation will
also be raised here. We will also study the evolution of public interest litigation in
India, and examine feminist and anti-caste readings on law/legal systems.

Essential Readings:

1) Ramachandra Guha, “Chapter 6: Ideas of India,” in India After Gandhi:

The History of the World’s Largest Democracy (HarperCollins, 2007).

2) S.P. Sathe, “Judicial Activism: The Indian Experience,” 6 Washington

University Journal of Law & Policy (2001) pages 30-35, 40-57, 67-71, 93-
96.

17
 3) Anand Teltumbde, “Chapter 1: Introduction” and “Chapter 5: The
Khairlanji Murders,” in The Persistence of Caste: The Khairlanji
Massacres and India’s Hidden Apartheid (2010). (Excerpts)

4) Kalpana Kannabiran, “Constitutional Geographies and Cartographies of

Impunity”, 51 Economic and Political Weekly 44-45 (2016).

5) ADM Jabalpur v. S.S. Shukla, 1976 AIR 1207

6) Vishakha & Ors. v. State of Rajasthan, AIR 1997 SC 301

Recommended Reading:

1) Upendra Baxi, “Law, Politics and Constitutional Hegemony: The Supreme

Court Jurisprudence and Demosprudence” in Sujit Choudhry, Madhav
Khosla & Pratap Mehta (eds.), The Oxford Handbook of Indian
Constitutional Law (Oxford University Press, 2016).

2) Madhu Ramnath, Woodsmoke and Leafcups: Autobiographical Footnotes

to the Anthropolopogy of the Durwa (HarperCollins, 2015) pages 55-67.

3) Hansda Sowvendra Shekhar, “The Adivasi Will Not Dance,” in The Adivasi
Will Not Dance Stories (Speaking Tiger, 2015) pages 169-187.

4) Mahasweta Devi, “Pterodactyl” translated from Bengali by Gayatri

Chakravorty Spivak in Imaginary Maps (Routledge, 1994).

Essential Films:

1) Fandry (2013)

2) Court (2015)

Optional:

3) Bhawandar (2000)

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 Week IX

LEGISLATION AND SUBORDINATE LEGISLATION

The class will examine how legislative activity is organized in India, particularly
in the framework of the Constitution of India. This session will combine elements
on drafting of statutes, case law analysis, reading statutes and statutory
interpretation. We will focus on the theme of lawmaking by and for the people,
and delve into the provisions of the Right to Information Act, 2005.

Articles 245 to 255 of the Indian Constitution distinguishes between the

legislative powers of the Union of India and the states. The Indian Parliament has
the exclusive power to make laws with respect to any of the matters included in
the Union List and the Seventh Schedule, whereas the state legislatures exercise
authority over the matters included in the State List.

Case discussion of V. Sudeer v. Bar Council of India (1999) for the proposition
that delegated legislation (in this case, pre-enrolment regulation legal trainees)
that is beyond the rule making powers under the parent act is invalid

Essential Readings:

1) Dipika Jain, “Law-Making by and for the People: A Case for Pre-legislative
Processes in India”, 20 Statue Law Review 1 (2019), pages 189-206.

2) Lok Sabha Secretariat, “How a Bill Becomes an Act?”

http://164.100.47.194/our%20parliament/How%20a%20bill%20become
%20an%20act.pdf

3) Right to Information Act, 2005

4) V. Sudeer v. Bar Council of India (1999) 3 SCC 176

Recommended Readings:

1) State of Tamil Nadu v. Krishnamurthy, (2006) 4 SCC 517

2) Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013

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 Week X

CANONS OF STATUTORY INTERPRETATION

What are the canons of statutory interpretation? The words of a statute, as they
stand, may not give a direct answer to the judge in a given case.

Please read Kent Greenawalt’s A Pluralist Approach to Interpretation (excerpts

from Peter Strauss’ s Legal Method). This article provides in a capsule summary
of seven dimensions of choice that characterize the interpretation of legal texts.
The seven dimensions of choice are:

1. Writer or reader
2. Subjective or objective
3. Abstract or contextual
4. Specific aim or general objective
5. Meaning, external policies, and justice
6. Inquiry limited to the document or including external evidence
7. Time of writing or time of interpretation

This class will also introduce the different rules of statutory interpretation-

The literal rule - when a statute is clear and unambiguous, courts should give
effect to the literal meaning of the words of the statute.

The golden rule – when use of the literal rule would result in an absurd result,
courts should investigate whether the wording conveys the intention of the
legislature in framing it

Mischief rule- courts should interpret a statute so as to suppress the mischief

and advance the remedy of the statute

Purposive approach – courts should interpret the words of a statute in light

of the purpose behind it

Essential Readings:

1) Henry M. Hart & Albert M. Sacks, “Note on the Rudiments of Statutory

Interpretation”, in Legal Process (1994) pages 1374-80.

Recommended Readings:

1) Kent Greenawalt, “A Pluralist Approach to Interpretation”, excerpts

available in Peter Strauss, Legal Methods (2005).

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 Week XI

LOGIC AND LEGAL REASONING

An important skill required to understand the law and formulate legal arguments
and analysis is acquiring and using the techniques of logic and legal reasoning.
This session will introduce and provide familiarity with some of these techniques.
This session will also provide an overview of logic and common logical errors in
reasoning – through inductive and deductive reasoning, and syllogisms.

In inductive reasoning, one argues from the ‘specific’ to the ‘general’. Read
Donoghue v. Stevenson, and examine how Lord Atkin used inductive reasoning
to propose a duty of care for third parties (i.e ‘neighbours’). Also examine how
Lord Atkin used Justice Cardozo’s reasoning in McPherson v. Buick Motors Ltd
and Lord Abinger’s reasoning in Winterbottom v. Wright to arrive at his
conclusion. In deductive reasoning, one argues from the ‘general’ to the ‘specific’.

A syllogism consists of a major premise, a minor premise and a conclusion. The

major premise usually states a general rule, which often is a statement of law. A
minor premise makes a factual assertion about a particular person or thing or a
group of persons or things, which is often the statement of fact. A conclusion
connects the particular statement in a minor premise with the general one in the
major premise, and tells how the general rule applies to the facts at hand.

Essential Readings:

1) McPherson v. Buick Motors Ltd (21 7 N.Y 382)

2) Donoghue v. Stevenson, [1932] UKHL 100

Recommended Readings:

1) Grant v. Australian knitting Mills, [1936] A.C

2) Neil MacCormick, Chapter 2 in Legal Reasoning and Legal Theory (1978)

pages 18-41.

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 Week XII

THE DOCTRINE OF PRECEDENT

This session will examine the doctrine of binding judicial precedent or stare
decisis. We will review the hierarchy of courts and will examine and learn to
identify which parts of a decision are authoritative and which are persuasive.

Doctrine of Stare Decisis

As a general principle the decision of an administratively superior court is

controlling over inferior courts. This doctrine is widely called stare decisis. Stare
decisis literally means, “stand by the decision”. Stare decisis ensures
predictability, stability and consistency of results, which is an inherent feature of
rule of law. Understanding stare decisis is a major element of the work of the
Legal Methods course.

The Indian judiciary has a typical pyramidal structure with numerous trial courts
(including district courts and mofussil courts), various High Courts in the states
and the Supreme Court at the apex. This Common Law concept is embodied in
the Indian Constitution. Article 141 of the Constitution of India provides that the
law declared by the Supreme Court shall be binding on all courts within the
territory of India.

Essential Readings:

1) Zee Telefilms Ltd. v. UOI, AIR 2005 SC 2677

2) Daryao Vs. State of UP, 1961 AIR 1457

Recommended Readings:

1) Madhav Khosla, Sudhir Krishnaswamy, “Reading A.K. Thakur v. Union of

India: Legal Effect and Significance”, 43 Economic and Political Weekly
29 (2008)

22
 Week XIII

LOCATION OF A RATIO AND ITS CONTROVERSIES

One of the critical skills of a lawyer is the ability to select a relevant legal
authority for a particular proposition of law. This requires lawyers to identify and
distinguish between the part of a judgment that represents binding authority (the
ratio decidendi) and the part that represents persuasive authority (the obiter
dictum). This class will provide the skills required to make these determinations.

Distinction between Ratio Decidendi and Obiter Dictum

Ratio decidendi can be translated as the reason for the decision and is best
understood as the essential point of law arising from the decision which
subsequent courts will be required to follow.

Obiter dicta can be understood as all the parts of

a judgment that are capable of being statements of law but that do not form part
of the ratio decidendi. This is the non-binding part of a decision.

Essential Readings:

1) Olga Tellis v. Union of India (1985) 3 SCC 545

2) Nick Robinson, “Judicial Architecture and Capacity” in Sujit Choudhry,

Madhav Khosla & Pratap Mehta (eds.), The Oxford Handbook of Indian
Constitutional Law (Oxford University Press, 2016), pages 337- 343.

Recommended Readings:

1) MGM v. Grokster 545 U.S 913 (2005)

2) Sony v. Universal City Studios 464 U.S 417 (1984)

3) Lalman Shukla v. Gauri Dutt, 1913 SCC OnLine

4) Shivprasad Swaminathan, “Mos Geometricus and the Common Law Mind:

Interrogating Contract Theory”, 82 Modern Law Review 1 (2019), pages
59-66.

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 Week XIV

PROCEDURAL CONCEPTS IN LAW

This session will cover two procedural aspects of the law.

A. Res judicata

This doctrine bars re-litigation of same substantive issues by the same

parties before the same court.

Essential Readings:

1) Daryao v. State of U.P

B. Res Sub Judice

Sub Judice refers to a matter that is currently before a court. This doctrine
bars courts from concurrently adjudicating on two cases that have the
same cause of action, same subject matter and same relief claimed.

C. Doctrine of Prospective Overruling

This procedure allows for a superior court to set aside a legal ruling of an
earlier case.

The Navtej Johar and Naz Foundation case series will be used to analyse
the process of overruling in a contemporary case, mapping the trajectory
of this case from the 2 Judge Bench of the Delhi High Court, followed by
the 2 Judge Bench of the Supreme Court, and finally before the 5 Judge
Bench of the Supreme Court.

Both the cases of Shankari Prasad and I.C. Golaknath will be used to
analyse the issue of prospective overruling.

Essential Readings:

1) I.C. Golaknath and Ors. v. State of Punjab, 1967 AIR 1643

2) Navtej Singh Johar v. Union of India, AIR 2018 SC 4321

3) Satyadhan Ghosal & Anr. v. Sm. Deorajin Debi & Anr, 1960 AIR 941

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 Recommended Readings (edited, excerpts):

1) Shankari Prasad Singh Deo v. Union of India, AIR. 1951 SC 458

2) Naz Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (2009)

3) Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

4) Ian McLeod, Legal Methods (McMillan, 2013) 125-155. 

Recommended Films:

1) Aligarh (2015)

2) Pariyerum Perumal (2018)

Week XV

LAW AND JUSTICE

Essential Readings:

This session will explore the interaction of law and politics in the dispensation of
justice, focusing on the Bhopal gas leak incident.

1) M.C. Mehta & Anr. v. Union of India & Ors., 1987 AIR 1086

2) Colin Gonsalves, ‘The Bhopal Catastrophe: Politics, Conspiracy and

Betrayal’, Economic and Political Weekly, vol. 45, no. 26/27, 2010, pages
68–75. 

3) Upendra Baxi, ‘Valiant Victims, Lethal Litigation’ in The Statesman,

(2014)

Recommended Reading:

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 1) Upendra Baxi, ‘Lecture I The Supreme Court and Politics’, and ‘Lecture III
The Post- Emergency Supreme Court: A Populist Quest for Legitimation’,
in Indian Supreme Court and Politics (Easter Book Company, 1980) pages
10-14, 16-26, 121-126, 146-150, 188-197.

2) Upendra Baxi, Amita Dhanda, Valiant Victims and Lethal Litigation: The
Bhopal Case, (N.M Tripathi, 1990).

Recommended Documentary:

1) One Night in Bhopal (BBC, 2004)

2) Bhopali (Van Maximilian Carlson, 2011)

Week XVI

REVISION/ REVIEW

This will be a revision and review week.

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