KLE legal methods.pdf

AL-AMEEN COLLEGE OF LAW LEGAL METHODS 1ST SEM, 5 YEAR B.A., LL.B COURSE UNIT-1 Q.No.1. Explain the necessity of law for the creation of just society. INTRODUCTION:- Law is a normative science i.e., (that is) it lays down norms or standards for human behavior in specific situation or situations. Laws are statements of behavior prescribed and enforced by the State. Law serves a purpose. Our society is too complex to be governed by common sense. So law is a necessary agent enforced by the state on pain of punishment for violations. THE FUNCTION OF LAW:- Law is an instrument of society, a very vital instrument. The purpose and function of law is to regulate social interests, arbitrate conflicting claims and ensure security of persons and property of people. Protection of people against criminals by imposition of appropriate sentence is an essential attribute of an orderly society which can be possible by an effective criminal law and procedure. If the law is to play its role of serving the needs of the society, it must reflect the ideas and ideologies of that society. As the society changes, law also cannot remain same. It must, therefore march in tune with the changing norms of the society. National Textiles workers union v. P. Ramkrishnan (1983) 1 SCC 228 Mr. Justice. P.N.Bhagwati observerd that “law cannot stand still. It must change with the changing social concepts and values. If law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress, or if the society is vigorous enough, it will cast away the law, which stands in its growth. The law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind. According to Salmond states that it is through the instrumentality of law that justice is administered. “Law is the body of principles recognized and applied by the state in the administration of justice”. Roscoe Pound states that law is the body of principles recognized or enforced by public and regular courts in the administration of justice. The function and purpose of law according to John Salmond are justice, stability and peaceful change 1. Justice:- the most important function and purpose of law is to establish justice. Law is merely an instrument to achieve justice. It is a means to an end and not an end in itself. 2. Stability:- other desirable outcome of law is stability. There should be stability of the society. Law is very helpful in bringing about stability. Law is one of the important instruments for the achievement of such social purposes as to win acceptance or tolerance from a sufficiently large section of the community to render enforcement possible. Stability is brought about by the uniformity and certainty of law. Uniformity in law is needed to provide certainty and predictability. 3. Flexibility leading to peaceful change:- flexibility of the law suggest that it must be capable of being changed, modified or altered so as to adapt to social changes. LAW AS AN INSTRUMENT OF SOCIAL CHANGE AND SOCIETY. Law is a living social science and it grows and changes as per the times. It’s sheds out obsolete laws and brings in news laws to meet the existing conditions in society. When India got its independence, it was a country of mass poverty, illiteracy and social oppression based on caste. So there was a need for a social change-changes in social structure, attitudes and beliefs. There was a big gulf between sections of people wherein one section was exploiting the other. The main need was to remove exploitation and bring about economic, social and political justice. There was a need for social enactments to change the ideas and values held by the Indian society. The Preamble to the Constitution of India promises to secure to its citizens “Justice, Social, Economic and Political – Equality of status and opportunity. Based on these promises, social and economic legislation were enacted by the Parliament and the States. Functions of law:- 1. Greatest happiness of greatest number:- According to utilitarians the function of law is to seek the greatest happiness for the greatest number of people and finds the basis of law and morality in utility. 2. To win acceptance or tolerance of the vast majority. Law is a medium which binds people and society together. This purpose of winning acceptance and tolerance from sufficiently large section of society renders enforcement possible. 3. Compromise. Law is a compromise between the rulers and the ruled or the state and the citizens. Thus a purpose of law is to reconcile the will of the state with the liberty of the citizens. 4. Protection of Interests. An important purpose of law is the protection of interests of individual and as well as social interest. Conclusion:- Law consists largely of ‘ought’ propositions prescribing how people ought to behave. Legal laws express ideas as to hoped for behavior; the laws are not derived from the behavior. The legal laws prescribe how people ought to behave. The oughts of laws are variously dictated by social, moral, economic, political and other purposes. --------------XXXXXXXXXXXXXXXXXX---------------------- DEFINITION OF LAW MEANING OF LAW:- The term “Law” means and includes different things in different societies. The corresponding word for the term ‘law’ in Hindu system in ‘Dharma’, in Islamic System it is ‘Hukum’, in Roman it is ‘Jus’, in French it is ‘Droit’ and in German it is ‘Richt’. These words convey different meanings and ideas. The term law is used in 2 senses in English- concrete and abstract. In Concrete sense we speak of a law or laws means it is a statute, ordinance, decree or an act of the Parliament. In abstract sense we speak of law or the law like of law of England, law of the land. Law here denotes the entire body of legal principles prevailing in a particular system. Definition of law 1. Montesquieu :- ‘Laws in the most extended signification, are the necessary relations which flow the nature of things; and in the sense all being have their laws; Divinity has here laws; the material world has her laws; intelligence superior to human beings have their laws, beasts have their laws; human beings have their laws. 2. Salmond:- the law maybe defined as the body of the principles recognized and applied by the state in the administration of justice’. 3. Gray:- the law of the state or of any organized body of men is composed of the rules which the courts that is the judicial organ of the body lays down for the determination of legal rights and duties. 4. Austin:- a law in the strict sense is the general command of the sovereign individual or the sovereign body, issued to those in subjectivity and enforced by the physical power of the state. 5. Roscoe pound:- the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claim go round as far as possible with the least friction and waste”. 6. Savingy:- law is a product of the people’s life… it is the manifestation of its spirit, the nature of system of law was a reflection of the spirit of people who evolved it. Whatever be the definition of the law, it is a social institution. It presupposes a society and in that is operates. Therefore, it must be such as to command social acceptance. There must be a state which makes law, recognizes it and sanctions it. Law and morality influence each other though one prescribes an external conduct and another internal. ………….XXXXXXXXXXXXXXXXX………………………….. Why the law is necessary? General Ideas of Law (extracted from Preface) Law is one of the institutions which are central to the social nature of man and without which he would be a very different creature. Civilizing forces in human society and the development of the system of legal rules has shaped the growth of civilization. “The highest perfection of society is found in the union or order and anarchy” Is Law Necessary? Law expresses the view on Man’s nature: Inherently good or evil? Perspective of Man’s nature affects the purpose of the law Evil nature - law exists to curb passion of man - Ancient China: “A single law enforced by severe penalties is worth more for the maintenance of order than all the words of all the sages”, Legists argued that man was initially evil and good ways were influenced by the social environment (teachings, rituals, restraints, and penal laws) India: ‘devil’s workshop’ where the ‘logic of the fish’ would win If men were left to themselves, the world would be in chaos and big ones will eat the little ones. Bodin: Original state of man was one of disorder, force, and violence Hobbes: Man is in a state of perpetual warfare Law is essential in the society. Law is there to guide the society towards happiness without bloodshed and in peace and harmony. Law helps us to restrain ourselves in times of great thirst for more money or power. It curbs our greed reminding us that there is someone or rather something out there ready to punish us if necessary. It helps to restore the balance in the society and bring justice to the victimized. The greatest thing about law is that all are equal before it. No man is rich or poor in the eyes of the law. No man is more powerful than the other in the eyes of the law. Law helps to regulate the behavior of the people. It prevents us from descending into anarchy. Law is dynamic. It is constantly adapting to the changing times so as to close all the loopholes that may be left due to human error. Our Preamble states the ideals of JUSTICE, LIBERTY, SOVEREIGNITY, FRATERNITY and EQUALITY which constitute the basic foundation of Our Constitution. However, without law these ideals will be constantly shattered. There will be nothing to protect these ideals. In a world where ‘survival of the fittest’ is prevalent, and looking at the size of human population we can say only one thing. Law is needed for survival. We cannot go against each other as it will definitely lead to destruction. Law plants an element of fear which may prevents in killing of fellow human beings. It gives each one his or her own share, what they deserve. ……………………xxxxxxxxxxxxxxxxxxxxxxxxxxxxx………………………. The Essence of Law. It is now time to consider whether the legal process with its decision is so important for idea of law, and whether indeed essential. We shall first ask Whether in primitive society there can be law without an institutionalized legal process. Whether in developed system there can be legal rules without an appropriate process. Whether it is the existence of an institutionalized process that the distinct wishes law from other human situations. Whether there is an essential difference between the legal rules of a state and rules of religious group or of a trade Union. From these investigations, we should also learn whether any other element is essential to law- because the process is essential to law it would not follow that there are not also other essential elements of law that are unconnected with the process. This will involve considering whether legal rules and legal process can exist independently of anything that might be described as a legal system. If it be established, as I believe it will, that the possibility of a process is the essential element of law, we will let to consider whether the process must also always be the central feature of law. Rules made by the religious group, trade union or institutionalized process and subordinate legislate also consider as a law, but these law are not superior than the state law, these are low level law as compare to the state law, but sometime these rules holds more benefits than the state law and for such rules are called as good law or consider as an essential element of law. Discuss the essential function of legal process. Legal Process typically refers to one of several different things related to law and various legal practices. The most common uses of the term is to refer to the processes or procedures followed during a legal case that is tried in a court of law. The point of a legal process is the resolution of a dispute actual or occasionally potential, by means of a decision to find the essential function we must be more specific. Function of legal process:- 1. To resolve the dispute by doing or in order to do justice. 2. To resolve the dispute by establishing the facts and applying the relevant rules of law to them. 3. To resolve the dispute in the interest of the immediately involved parties. 4. To resolve the dispute in the best economic social or political interest of the ruling class. 5. To resolve the dispute in the best economic interest of society at large. 6. To resolve the dispute with the specific object of inhibiting further unregulated conflict. …………………xxxxxxxxxxxxxxxxxxxxxxxxxxx……………………………. UNIT-2 Explain legal rules (Law) and society. Introduction: Law and society are related to each other. Nothing can explain without any of them. Society becomes the jungle without the law. Law also needs to be changed according to the changes the society faces, because without the necessary changes law cannot keep pace with society. Without the control of the law, the society became the jungle or at least barbaric. So, to keep the society peaceful, we need to create a harmonious relationship between law and society. What is Law: Law is the command of the Sovereign. Law must flow from a determinate person or group of persons with the threat of displeasure, if it is not obeyed. As we know, Sovereignty is only part of the state. So, we can say that Law is used to denote rules of conduct emanated from and enforced by the state. According to Holland, Law is “a rule of external human action enforced by the sovereign political authority." According to Salmond, “Law is the body of principles recognized and applied by the State in the administration of justice". So we can say that law must have three characteristics which are given below: Law has its sovereign authority, Law is accompanied by sanctions, The command of law should compel a course of conduct. Being a command the law must flow from a determinate person or group of persons with the threat of displeasure, if it is not obeyed. What is Society? A community or a group of persons, living in any region, who are united by some common bond, is known as society. A society is a group of people related to each other through persistent relations such as social status, roles and social networks. They also share the same geographical territory and subject to the same political authority and dominant cultural expectations. Common bond is some kind of uniformity of factors like nature of the people, habit, custom, beliefs, culture, etc. This common bond helps the members of the society to form the rules of social behavior. The punishment of disobeying the social rules is come from in the form of social disapproval. The punishments are generally excommunication or ostracism. Relationship between Law and Society: Theorists have traditionally maintained that there are certain broad on the substantive criminal law. One set of such constraints concerns the sorts of behavior that may legitimately be prohibited. Is it proper, for example, to criminalize a certain kind of action on the grounds that most people in one’s society regard it as immoral? The other set of constraints which concern what is needed in order to establish criminal responsibility that is liability, independently of the content of the particular statute whose violation is in question. Legal system reflects all the energy of life within in any society. Law has the complex vitality of a living organism. We can say that law is a social science characterized by movement and adaptation. Rules are neither created nor applied in a vacuum, on the other hand they created and used time and again for a purpose. Rules are intended to move us in a certain direction that we assume is good, or prohibit movement in direction that we believe is bad. The social rules are made by the members of the society. Disobedience of the social rules is followed by punishment of social disapproval. There is no positive penalty associated with the violation of rules except excommunication or ostracism. On the other hand, Law is enforced by the state. The objective of law is to bring order in the society so the members of society can progress and develop with some sort of security regarding the future. The state makes laws. Disobedience of state laws cause penalty, which is enforced by the Government by the power of the state which is not enforceable is not Law. Explain typical attributes of law and legal process. Answer:- Discussion of the essentials of law and legal process provides little indication of the idea of law. In addition to the essentials features, law and the legal process and distinguished by many other attributes, some of which though not essential. may be designated as typical and may play a vital role in our understanding of and our attitude to law. Here one thing should be discussing the typical attributes of law we are concerned with what appears to be typical to the traditional western jurist. On this basis the most important of the typical attributes of law and the legal process are that they form art of system. i) law and legal process are that they form part of system ii) law they are created by a recognizable person or body that has the power to make law iii) law and legal process they are authoritative and authoritarian. iv) Law and legal process they are backed by sanctions. Law and legal process part of legal system: The nature of a legal system is well indicated by Hans Kelason who claims “All norms whose validity may be traced back to one and the same basic norms, or an order. This basic norm constitutes.as a common source, the bond between all the different norms of which an order consists. Joseph Raz also gave his opinion about legal system in his book.” This work is an introduction to a general study of legal system,” Legal systems are comprehensive, they claim to be supreme, and they are open system in the sense that they contain norms whose purpose is to give binding force to norms that are not part of legal system, hence they maintain and support other forms of social grouping. Raz explains about some other institutions also they also have authority to achieve the goals by forming their own norms. Those associations are sports associations, commercial companies, cultural organization, and political parties and so on. When we come to consider the rules of trade union, sports association, and so on, the rules of such bodies can be law, and if this is correct we are faced with a choice between three possibilities. They are laws if these group rules form a separate legal system They are laws if these rules form a part of legal system These rules may be rules law but neither constitutes nor are part of a legal system. In these three which is correct that will be decided by the way of kelson’s definition of legal system. (grund norm) the rules made by these groups can be approved or disapproved by the state. Any judgment made by these groups neither recognized nor enforced by state. Hence here rules of group cannot be regarded as part of legal system. Thus the rules made by groups form a separate legal system. Law created by person or body of person: “According to John Austin, every law simply and strictly so called is set by a sovereign person, or a sovereign body of persons, to members of the independent political society where in that political society where in that person or body is sovereign or supreme. Here this is another typical attributes of law says that law should be created by person or body of person John Austin gave his definition about law. Law should be created by sovereign and commands of sovereign and every one are bound to obey these order. if anyone fails to obey the rules or order then they will be punished. H.LA. Harts, declare that International law doubtful in case of law because international law lacks a legislature, hence international law is not the true law it is customary law. Laws are authoritarian and authoritative: This third typical attribute of law here will see the meaning of authoritarian and authoritative. Authoritarian means that those in charge of the law and the process claim authority on account over the behavior of the parties to the dispute and assert that parties must assent to the decision reached in the process and abide by it. Authoritative means that those in charge of the law and the process insist that no other body has the right to claim authority over the behavior of the parties and their legal decision in correct because it is their decision. Here it means that law is supreme here law is having authority to control the behavior of the individuals in the society and it solve the disputes between the parties and provides justice to the needy person and punished the wrongdoer and no other body have this authority except law. Here the attribute authoritative and authoritarian is absent in international law and laws of religious groups or trade union. Laws backed by sanctions this is fourth attribute of law: According to Austin laws made by sovereign are backed by sanctions. Here sanctions mean punishment, every law should contain sanction if law backed with sanction then it creates fear in the mind of the people to obey it otherwise they will be get punishment. This point has criticized all laws are not backed by sanctions. Examples; civil law, and international law Law obeyed by people to regulate their behavior. This is the final attribute of law l is that the people regulate their behavior by it, in other words law is obeyed law regulates the behavior of human beings in society and every one should obey the law, to conduct the good behavior in society and peace and order in society. These above discussed points are typical attributes of law. --------------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx--------------------------------- EXPLAIN THE SOURCES OF LAW. The General meaning of the word ‘source is origin’. The expression ‘source of law’ means the origin from which rules of human conduct come into existence and derive legal force or binding characters. According to Austin the immediate author of law is the source of law. There are different sources of law. 1. Custom :- When a person has been doing an act regularly over a substantial period of time, it is usual to say that he has grown accustomed to doing it. But when a large section of the society are in the habit of doing that act over a very much longer period, it becomes custom. People use and practice any act which they find to be good and beneficial and apt and agreeable to their nature and disposition. Custom is of slow growth. All customs are not laws. The Custom will be labelled ‘law’ when ‘ought’ rests on such practices or acts of the people which are being habitually used by the community for generations. The following are few definitions of custom. Austin:- Custom is a rule of conduct which the governed observed spontaneously and in pursuance of law set by a political superior’. Salmond says:- ‘custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. The origin of custom. To the savages, custom was all in all. They were guided by magic and taboo. As long as the disposition of the early man remained synomic, he was inseparably bound to custom. With the growth of civilization, man began to reason and to reject the unreasonable customs and accepted reasonable ones. The Reasons for the recognition of customs as law. Some local and general customs have been given the force of law. Salmond gives two reasons for the recognition of customs as law. ‘In the first place, custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. The courts of justice accept those rules which have already in their favour the prestige and authority of long acceptance. Requisites or Essentials of a Valid Custom. 1. Reasonableness:- A custom to be valid, must be reasonable. The reason referred to here is not to be understood as meaning every unlearned man’s reason but a reason warranted by authority of law. 2. Peaceable Enjoyment:- The custom must have been peaceably enjoyed, as custom owes its origin to common consent. For the enforcement of a custom, it is necessary to show that the custom has been enjoyed without any disturbance or contest. If a custom is in dispute for a long period in a law court, or otherwise, it negatives the presumption that it originated by consent. 3. Conformity with enacted law:- A custom to be valid, it must be in conformity with statute law. It is a positive rule that a statute can abrogate a custom. 4. Not to be immoral:- A custom to be valid must not be immoral. There is however, no fixed test to judge the morality of a custom whether a customs is immoral is to be judged by the sense of the whole community. 5. Public Policy;- A custom can be refused recognition only when it is opposed to public policy and manifestly repugnant to rights. 2. PRECEDENT:- In every country legal system consists of a judicial organ. The function of the judicial organ is to give just decisions in disputes. In deciding disputes, the judges are guided by customs in the beginning. As society progresses, legislation becomes the source of law and the judges decide cases according to legislative. Where there is no legislation on the particular point which arises in changed 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. A precedent is a statement of law found in a judicial decision of a High Court or a superior court, meant to be followed by the same courts as also by subordinate courts. The precedent generally means some set pattern guiding the future conduct. Kinds of Precedents. 1. Original and Declaratory 2. Authoritative and persuasive. 1. Original and Declaratory:- Precedents are either original or declaratory. Judicial decisions are of two kinds- those that create new law and those that merely apply known and established rules of law to the particular facts of the cases arising for decision. Decision of either kind operate as precedents. The first kind of precedent, however, being creative of law is called by Sir John Salmond “original precedent’ to distinguish it from the second that is only declaratory of existing law. Thus the original precedents are those which create or establish original or new rules of law. The declaratory precedents are those which merely reiterate and apply an already existing rule of law. Both are equally a source of law. 2. Authoritative and Persuasive precedents. An Authoritative precedent is that which must be followed by the judges, whether they approve it or not. Authoritative precedents are binding upon the judges who interpret the law, they can be regarded and are regarded as a legal source of law. Again they are divided into a. Absolute b. Conditional. Persuasive Precedents:- Persuasive precedents are those precedents which the court are bound to follow, though they may take them into consideration while giving their decisions. They being only of a guiding character, are not considered as a legal source of law. Such precedents are only a historical source of law. They built up the basis for an authoritative precedent. The persuasive precedent has no legal force by itself. It has an effect only when followed or adopted by a court of law. Decisions of a High Court in our country is an authoritative precedent within the jurisdiction of that High court but outside, the decisions of that High court are not authoritative, but only guiding or persuasive. PRECEDENTS IN INDIA. The doctrine of judicial precedent was not known to India before the establishment of British rule in India. It got judicial recognition under section 212 of the Government of India Act, 1935. The position of precedent became clear after 1950 and the doctrine got a constitutional recognition. Supreme court:- The decisions given by the Supreme Court are binding on all the judicial tribunals of the country. 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. Supreme Court is not bound by its own decisions. But the Supreme court will not ordinarily depart from its earlier decisions. However if an earlier decision is found erroneous and is thus detrimental to the general welfare of the public, the supreme court will not hesitate is departing from it. High court:- There are 5 board principles in the applicability of the doctrine of judicial precedent in High court. 1. The decisions of a High Court are binding on all the courts below it within its jurisdiction. 2. The Decision of the one high court is not binding on the other high court. 3. The Judges of the High court sitting alone are bound by the decision of a Bench of two (division Bench) or more judges (full bench). Full bench decision are having an absolute binding character and full bench should accept the decision of another full bench. The Divisional Bench must ordinarily respect another Divisional Bench, but if it differs the case should be referred to a Full bench. 4. The law administration in any High court is made binding by Art 225 of the Indian Constitution 1950. However they are binding only so long as they have not been overruled by the Supreme Court. 5. Pre- constitution (1950) decision of the privy council are binding on all the High courts unless they conflict with any decision of the Supreme court. High court are bound by the decision of the Supreme court. DISTRICT COURTS:- they are bound by the decision of the supreme court and High Court of that state. Magistrate Courts and Munsif’s courts:- Magistrate courts which are the courts of first instances for criminal case and Munsif’s courts which are the court of first instances for civil cases are bound by the decision of the Supreme court, high Court and District courts of that state. Circumstances destroying or weakening the binding force of precedent. 1. Legislation 2. Reversal or overruling 3. Ignorance of statute 4. Inconsistency with earlier decisions of high courts. 5. Inconsistency between earlier decision of the same rank 6. Precedent sub silentio or not fully argued. 7. Decision of equally divided courts. 8. Erroneous decisions. 9. In the interest of public good. 3. LEGISLATION:- The term “Legislation’ is derived from the two Latin term “Legis” which means a law and ‘Latum” which means, to make put or set. Thus legislation means making a law. Legislation may be termed as enacted law or statute law or written law to be followed and enforced in the courts of the state. These rules or laws can only be made by a competent law-making body i.e. a body which, under the constitution of the state, is empowered to make a law. But when we use the term ‘legislation’ as a source of law, we mean law making by a defined person or body and not customary or conventional law or judicial decisions.’ Salmond:- states that legislation is that source of law which consists in the declaration of legal rules by a competent authority. Kinds of Legislation;- It is divided into 2 forms: 1. Supreme Legislation 2. Subordinate legislation 1. Supreme Legislation:- Legislation is said to be supreme legislation when the authority under which the law is enacted is a supreme authority or a sovereign law-making body, like a legislature of an independent and sovereign state. It is supreme because no other authority can annul, modify or control it. 2. Subordinate Legislation:- Legislation is said to be subordinate when the legislature is a subordinate law- making body deriving its power from the sovereign authority i.e. a higher and paramount legislature. a. Colonial legislation:- Formerly, Britain has had many colonies and dominions. Legislation by the legislature of the colonies for the self-government is subject to the control, alteration, repeal or supersession by the Legislation of the British Parliament. As the colonies achieved independence this class of subordinate legislation is obsolete today. b. Executive legislation;- The legislative body enacts the fundamentals only conferring upon the executive a rule-making power for carrying out the intentions of the legislature. The rules made in pursuance of this power of delegated legislation have the force of law. c. Judicial Legislation;- Law making power is also exercised by the law courts for the regulation of their internal business proceedings of the courts concerning their day to day functioning. This is known as judicial legislation and is different from judicial precedent. d. Municipal legislation;- The bye-law making power of municipal authorities is another form of subordinate legislation. --------------------------XXXXXXXXXXXXXXXXXXXXXXXX-------------------- Law as a social engineering. Every society will move and experience changes either slowly or quickly. The social engineering or social change occurs along with the advancement of cultures in society, where humans as creatures who have a potential of lust and reason always seek and strive to meet their life needs to remain exist and survive. Social engineering that occurs in society is driven by dissatisfaction with the existing conditions and the desire to get something better than what was before. Law as a Tool of Social Engineering Pound argues that the function of law is as social engineering. In his thinking, he states that the law which has the nature of binding, forcing, and giving sanction is able to change the behavior of society. The theory proposed by Pound was then developed with the concept of law which views the law as a tool of community renewal in addition to suggestions to ensure the order and legal certainty. The conception and definition of law put forward on a practical level requires the initiation of the legislators to conduct legal discovery in order to direct and anticipate the negative impacts of social engineering that occurred in Indonesia. The application of law as a tool of social engineering in Indonesia is in accordance with the modern law that the law is not merely to look for the faults of others (law as night watchman) and then give legal sanction, but modern law is now created to educate people to change desired and for the welfare of society. The current legal function is already shifting, that is more actively making the desired changes. Fuller saw the law as an attempt to achieve certain goals. Development that occupies a prime position in Indonesia requires that law be a reference and a frame of reference. That means, the law must be able to support the efforts that are being made to build society, both physically and spiritually Austin states that the law is to be obedient. He, further, explains that a law is obeyed by society because it is the command of those who hold supreme authority or from the holder of sovereignty so that the law has four elements namely: command, sanction, obligation, and sovereignty" In the theory of development law asserts that the functions of law as a tool of social engineering is necessary based on the following points: The theory of Development Law This theory is a law theory that exists in Indonesia. It was created by the law makers by looking at the dimensions and culture of Indonesian society. Therefore, by the benchmark of the law theory dimension, the law was born, grows and develops in accordance with the conditions of Indonesia; then, the essence if it is applied, it will be in accordance with the conditions and situations of pluralistic Indonesian society. Dimensionally, the Theory of Development Law uses the framework of the way of life of the society and the nation of Indonesia based on the principle of Pancasila that is familial. The norms, principles, institutions, and rules contained in the Theory of Development Law are relatively dimensions that include the structure, culture, and substance as stated by Reference. Basically, the Theory of Development Law provides the function of law as a tool of social reform (law as a tool of social engineering) and the law as an indispensable system to the Indonesia as a developing country. One of the examples of the law role in changing the culture of rural communities is on early-age marriage as the Act of Marriage Law No. 1 of 1974 is enacted. It is clearly stated that the age to marry is 21 years. Those who are under the age of 21 may only marry with a proxy's permission, and a woman under the age of 16 must be granted a court of law. The role of law as a tool of social engineering is determined by three components, namely: 1. Law enforcement agencies which are lawyers, police, prosecutors, and judiciary for the realization of legal certainty. 2. Society as subjects of law enactment which has different characteristic. Advances in Social Science, Education and Humanities Research (ASSEHR), volume 147 119 3. The substance of the law itself must meet the principles of law such as pervading people's aspirations, fulfilling the sense of justice, and being able to solve the conflicts that occur in society. Social engineering is a change or changes that occur in social institutions within a society either sooner or later that affect the social system, including values, attitudes, cultures, and behavior patterns among groups in society. ………………….xxxxxxxxxxxxxxxxxxxxxxxxxxxx…………………………. UNIT-3 Discuss different types of Law. 1. Introduction: Etymological meaning of classification is “the process of putting something into category” or the basic cognitive process of arranging into classes or categories. For a proper and logical understanding of law its classification becomes necessary. As it elucidates the way of systematic logical structure of the legal order. It explicates the inter relation of rules and their effect to each other. It analysis the law that intern is helpful in codification of laws it is an arrangement of rules in a concise and systematic way. 2. Classification of Law: A chart Presenting the above classification is as below: - (1) International Law, and (2) Municipal or National law 1. International law: - The Present form of international law is of recent origin some earlier Jurist were of the view that the international law is not law as it lacked many elements which law should have. Austin and his supporters were of this view. Some says international law is law and it is superior to the municipal law Kelson supports this view. What is International Law? The legal Process that concerns legal relations among nations is called international law. Belief and experience some form international law dates from at least the days of the Roman Empire. The united nation is are of the Primary mechanism that articulate and create international law. The major sources of international law are multilateral Treaties, international custom and such General Principles as are recognized by civilized nations. According to some Jurists international law may be divided into two classes. (1) Public international law, and (2) Private international law 1. Public international law is that body of rules which govern the conduct and relations of States with other, really speaking; the term international law is used for this class of law. 2. Private international law means those rules and Principles according to which the cases having foreign element are decided for example, if a contract is made between an Indian and Pakistani and it is to be performed the rule and Principles on which the rights and liabilities of the Parties would be determined would be called Private international law. This class of law is called “Conflict of laws” also. After knowing the field of application of this class of law, it is clear that the adjective “international” is wrongly given to it because it applies to individuals and not to States and these rules and Principles (called Private international law) vary from State to State and thus lacked uniformity. This class of law is enforced by municipal courts which administer municipal law and not international law, so, such a law does not process the characteristics of international law. In modern times this class of law has gained much importance and every States has made rules for its administration. Therefore, it must be properly classified. It is submitted that it should be given the name “Conflict of Laws” and not private international law and should be treated as a branch of municipal Private law and should be classified as such. 3. The Municipal law, Law of land, Civil law, or law applied within a State is divided into two classes: - (A) PUBLIC LAW (B) PRIVATE LAW A) PUBLIC LAW: - The State activities are largely regulated by Public law. It determines and regulates the organization and functioning of the State and determines the relation of the State with the subject. public law may be divided into three classes: - (A) Constitutional law (B) Administrative law and (C) Criminal law (A) Constitutional law: By constitutional law is meant that law which determines the nature of the State and the Structure of the Government. It is above and superior to the Ordinary law of the land. Constitutional law is the basic law or fundamental law of the State. The constitutional law may be written as in India or unwritten as in England. In modern times there is tendency to adopt written constitution. (B) Administrative Law: - Administrative law deals with the structures powers and the functions of organs of the administration, the limits of their Powers, the methods and Procedures followed by them in exercising their powers and functions; the methods by which there power are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. (C) Criminal law: - Criminal law defines offences and prescribes punishment for them. Its aim is the prevention of and punishment for offences. Criminal law is necessary for the maintenance of order and peace within the State. In civilized societies crime is considered to be wrong not only against the individual (who has been wronged) but a wrong against the society. Therefore, the State initiates the proceedings against the offender, and thus it is always a party in criminal cases. This is why the criminal law is considered as a branch of public law. (D) Private Law: - This branch of law regulates and governs the relations of citizens with each other. The parties in such cases are private individuals and the State through its judicial organ adjudicates the matters in dispute between them. In these cases, the State takes the position of only an arbiter. But it does not mean that the State regulates all the conducts and relations of the citizens but regulates only such of them as are of public importance and these relations (which State regulates) constitute the civil rights of the citizens. The major part of municipal law consists of this branch of law but in Totalitarian States the public law regulates the major part of the social life. In the Classification of private law there is great difficulty. Different Jurists have given different classification; a very General classification is as follows: - 1. The law of Persons 2. The law of Property 3. The law of obligations 4. The conflict of laws The law of obligations is divided into three classes. (i) Contract (ii) Quasi contract, and (iii) Tort The classification is only substantive law. The procedural law and Evidence are also the branches of the Private law. ----------------------------XXXXXXXXXXXXXXXXXXXXX-------------------------- Explain the different kinds of Legal materials Introduction: There are basic two types of legal materials, primary and secondary. Primary legal materials are authorized statements of the law issued by branch of government. They include statues, cases and regulations – the law itself. The secondary legal materials provide commentary and interpretation of the law and include law materials as law review articles, legal encyclopedias and treatises. PRIMARY RESOURCES: CONSTITUTION OF INDIA LEGISLATION-INDIA ✓ Gazette of India ✓ Acts of Parliaments ✓ Bills of Parliaments ✓ Local Laws of all States CASE LAW INDIAN REPORTS (a) Supreme Courts ✓ All India Reporters (1914 onwards) ✓ Supreme courts Reports (1950 onwards) ✓ Judgement Today (1980 onwards) ✓ SCALE (1970 onwards) ✓ Supreme Court Cases (1969 onwards) (b) Indian Higher Courts ✓ All High Courts Reports since their inception SECONDARY SOURCES: $ LEGAL ENCYCLOPAEDIAS ✓ Halsbury’s Laws of England ✓ Halsbury’s Laws of India $ LEGAL PERIODICALS $ DIGESTS ✓ Supreme Court Yearly Digest (SCC). ✓ A.I.R. Yearly Digest Constitution of India: An official copy of the Constitution of India is always available with the office of the Controller of Publications (Government of India. Delhi) and its branches and authorized agents. The government issues a new edition almost every two or three years as there are amendments to the Constitution from time to time. As the amendments are quite frequent. I t is always advisable to check further amendments if any after the date of publication of the new edition. For this purpose, one has to consult the Acts-section of the Gazette of India about which a mention has been made in the following pages. It is quite likely that some bill might have been introduced in Parliament but did not become an Act. It may be necessary to make a reference to such a bill which can be found in the Gazette of India-Part 2 Section II. Sometimes in the course of research it becomes necessary to refer to the draft Constitution. The official publication of the same is called Draft Constitution of India (1948) (prepared by the Drafting Committee of the Constituent Assembly) and is available with the Controller of Publications. Legislation of India: The current legislative material, i.e., bills, Acts, rules, notifications, orders etc. are published in the Gazette of India. Not all sections of the gazette are of use for legal research. Only some of them may be relevant. The contents of the gazette are given below so as to give an idea 'as to what it contains: PART I - Section I-Notifications relating to Non-Statutory Rules, Regulations, Orders and Resolutions issued by the Ministries of Government of India (other than the Ministry of Defense) and by the Supreme Court. PART II - Section I-Acts, Ordinances and Regulations. PART III - Section I-Notifications issued by the high courts, the Comptroller and Auditor General, Union Public Service Commission, the Indian Government Railways and by Attached and Subordinate Offices of the Government of India. PART IV - Advertisements and Notices issued by Private Individuals and Private Bodies. Case Law: The judicial system 10 India is now well knit into a hierarchy of courts. with the Supreme Court at its apex. Article 141 of the Constitution provides that the law declared by the Supreme Court is binding on all courts in India. Though there is no similar provision with regard to the High Courts. it is well settled that the courts subordinate to the High Courts are bound by their decisions. As a result, the doctrine of precedent has been well established in India and it ensures uniformity and certainty. This has necessitated a systematic reporting of the judgments of the Supreme Court and High Courts. Even though an unreported judgment can be cited as an authority. An impressive account of the history of law reporting in India and various law reports of earlier days is found in the fourteenth report of the Law Commission of India." Examples: (a) Supreme Courts ✓ All India Reporters (1914 onwards) ✓ Supreme Court Reports (1950 onwards) ✓ Judgment Today (1980 onwards). ✓ SCALE (1970 onwards) ✓ Supreme Court Cases (1969 onwards) (b) Indian Higher Courts ✓ All High Courts Reports since their inception LEGAL ENCYCLOPAEDIAS: Matter in the legal encyclopedias is also arranged in the same manner as in general encyclopedias. They are the treasure house of knowledge on various subjects. The entire law is divided into different legal topics. The articles in the encyclopedias give a learned account of various subjects. But this again has to be supplemented by other materials like textbooks, enactments and decided cases published after the publication date of the set. LEGAL PERIODICALS: An indispensable tool of legal research is the law journal. Legal writings in law journals are a rich source of information on a particular point and can be used by a researcher in several ways. The basic advantage of an article over a textbook is that it deals with a specific area in depth. There are very few law journals exclusively devoted to legal writing in India. Generally, these periodicals contain cases, legislative material. articles. case comments and book reviews. DIGEST: Digests play an important role in collecting cases on a particular subject. A textbook no doubt contains cases on the subject, nonetheless the author may omit cases not considered relevant by him and the case law may not be up to date. The main function of the digests is to refer to all the reported cases on the subject so that one may go through them. ------------------------------XXXXXXXXXXXXXXXXXXXX-------------------------- DEFINE STATUTE AND DIFFERENT PARTS OF STATUTE The word Statute is derived from the Latin word (statuere) which means to be made to sit up. A Statute is the formal expression in writing of the will of the legislature in a state. It is usually called an Act of the legislature. It expresses the collective will of the body. “Allen states :- that a statute is the highest constitutional formulation of law, the means by which the Supreme legislature, after fullest deliberation, expresses its final will. Wilberforce:- ‘will of nation, expressed by the legislature, expounded by courts of justice. The legislature as the representative of the nation, expresses the national will by means of statutes. Statute may be defined as the will of the state expressed by the legislature or by the people through its initiative and expounded by the courts. Indian law is dominated by enacted law. Law is the creation of parliament, state legislature and local authorities. The process of enacting an Act involves following procedure. 1. The bill must be introduced by a legislature. 2. The bill should be passed through legislative debates. 3. It is placed before both the houses for vote. 4. Bill is sent to the executive (governor or president) for approval. Statute can be classified as follows. 1. Affirmative statute 2. Amendmentory Statute 3. Declaratory statute 4. Curative statute Different parts of statute are as follows, 1. TITLE An Act begins with a title which is assigned to the Act. Ex:- The Specific Relief Act 1963, The Hindu Marriage Act 1955, The title is accompanied by the Act number and year just below the title in brackets. e.g (Act No.47 of 1963) and the date and year of its passing. The titles are of 2 types. 1. Short title 2. Long title. 2.PREAMBLE:- Preamble is introductory and explanatory of the reasons for the passing of the Act, Preamble is very useful for interpreting the meaning of the Act. Ex:- The Preamble of the Indian Constitution explains the objectives of the Constitution. 3. DEFINITION CLAUSE:- It is provided in the Act to define the scope of various ‘words’ and phrases used in the Act. The object of the definition may be summarized as follows: 1. To Shorten the language to be used in the body of the Act. 2. To give an artificial meaning to words. 3. To explain the meaning of difficult words. 4. To exclude certain things from being covered by a particular word that normally covers them. 4.HEADINGS Each statute is divided into various parts and various parts are known as section, sub-section and clauses. Each section begins with a heading. It is generally regarded as a preamble to the section which follows under it. It plays an important part in the construction of the section. 5. MARGINAL NOTES:- Marginal notes appear on the roll of statutes. They are a sort of a heading to each section; however, marginal notes appended to the section cannot be used for constructing the section. 6.SECTION OR ARTICLE:- All statutes other than Constitution of India and law of Limitations are divided into Articles to show their supremacy. Whether we call it section or Article, it constitutes the principle or enacting part of a statute. A section whether divided into sub-sections and clauses or not, must be considered as a whole and self-contained with the inclusion of saving clauses and provisions. 7. PUNCTUATION MARKS:- Punctuation marks play an important role. If a statute is carefully punctuated, there would be no doubt about its meaning; a weight should be given to the punctuation. But it cannot be allowed to control the plain meaning of the text. 8. ILLUSTRATIONS:- Illustrations play a very important role in explaining the meaning of the section. It helps to simplify the statute with the help of pictorial or other forms of representation. Illustrations play a very important role in elucidating the intention of the legislature. Illustrations can influence court’s opinion and judgment in the Indian Contract Act, Indian Penal Code and the Law of Evidence. 9. PROVISO A proviso is a statement engrafted on a preceding enactment. It begins with the word ‘provided’. It is usually inserted below a section, sub-section, clause or sub-clause, as the case may be. It is attached to the main clause for the purpose of explaining, subtracting or adding to the particular matter referred to therein. It should be read with main clause. 10. EXCEPTIONS:- The exceptions are safeguards which are inserted in the main provision itself to secure against infringement of an individual right which would, otherwise, have been infringed on account of the construction of the main provision in the enactment. The exception make it clear that the provision shall be applicable to all cases except those expressly excluded by them and they must be construed strictly and must be confined within their own limits and the subject matter embraced with them. 11. EXPLANATION:- Explanation is added to a section for the purposes of explaining the thing. It neither enlarges the scope of the main clause nor does it restrict its operation. The main provision has to be understood in the light of the explanation. 12. SAVING CLAUSE:- Saving clause are used in those statutes which have the effect of repealing certain existing statutes. Saving clause prevent the present statute form the rights accrued, penalties incurred, duties imposed or proceedings started under the statute sought to be repealed. Saving clause in short protects certain provisions of the Act which is being repealed by the present Act. The Repealed Act under saving clause remains alive to the extent provided under the new Act. 13. SCHEDULES:- Schedule is an appendix to an Act of legislation or to a legal instrument containing a statement of details or taking the form of a detailed list of relevant matter. Schedule is regarded as a part of the statute. It possesses the same legal force as the body of the Act. It must be read with the main text of the statute and not separately from the same. Schedule must clearly spell out the section to which it belongs. If there are more schedules than one, then indication should be given for each schedule. -------------------------------XXXXXXXXXXXXXXXXXXXXXXXXX------------ UNIT-4 WHAT IS MEANT BY INTERPRETATION OF STATUTES? EXPLAIN THE PRINCIPLES OF INTREPRETATION OF STATUTES. INTRODUCTION:- Interpretation is the primary function of a court. The court interprets the legislature whenever a dispute comes before it. Since the will of the legislature is expressed generally in the form of a statute, the prime concern of the court is to find out the intention of the legislature in the language used by the legislature in the statute. The court is not expected to interpret arbitrarily and consequently there have to be certain principles which have evolved out of the continuous exercise by the courts. These principles are sometimes called rules of interpretation. The words interpretation and construction are generally used synonymously. Interpretation means the art of finding out the true sense of an enactment by giving the words their natural and ordinary meaning. The general principles of interpretation are as follows, 1. The literal or grammatical interpretation. The first principle on interpretation is the literal or grammatical interpretation which means that the words of an enactment are to be given their ordinary and natural meaning and if such meaning is clear and unambiguous, effect should be given to a provision of a statute whatever may be the consequences. The basis of this principle is that the object of all interpretation being to know what the legislature intended, whatever was the intention of the legislature has been expressed by it through words which are to be interpreted according to the rules of grammar. This has been called the safest rule because the legislature’s intention can be deduced only from the language through which it has expressed itself. If the language of a statute is plain, the only duty of the court is to give effect to it and the court has no business to look into the consequences of such interpretation. The court is under the obligation to expound the law as it exists and leave the remedy to the legislature if harsh conclusions result from such exposition. The words of a statute are first understood in their natural, ordinary or popular sense and phrases are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. Maqbool Hussain V. State of Bombay (AIR 1953 SC 325) A citizen of India, on arrival at an airport did not declare that he had brought gold with him. Gold, found in his possession during search in violation of government notification, was confiscated under section 167 (8) Sea, customs Act, 1878. He was charged under section 8 foreign Exchange Regulation Act, 1947 also. He stated that his trial under the Act 1947 was violative of Article 20(2) of the Indian Constitution relating to double jeopardy as he was already punished for his act by way of confiscation of his gold. It was held by the Supreme court that the sea customs authority is not a court or a judicial tribunal and the adjudging of confiscation or the increases rate of duty of penalty under the Sea Customs Act, was not a prosecution. Consequently his trial under the Act of 1947 was valid. S.A. VENKATARAMAN V. UNION OF INDIA (AIR 1954 SC 375) An inquiry had been made against the appellant under the Public Service Enquiries Act. On receiving the report of the Enquiry commissioner, the appellant was given an opportunity under Article 311(2) of the constitution to show cause, and was ultimately dismissed. Later on, he was charged under section 161 and 165, Indian Penal code and section 5 (2) Prevention of corruption Act 1947. On the question whether his trial was in violation of Article 20 (2) of the Constitution, the Supreme Court held that proceeding before the commissioner was not prosecution and therefore his trial was legal. 2. The Mischief Rule. The Mischief Rule of interpretation originated in Heydon’s case in 1584. It was resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law four things are to be discerned and considered. 1st what is the common law before the making of the Act. 2nd what was the mischief and defect for which the common law did not provide. 3rd what remedy the Parliament had resolved and appointed to cure the disease of the common wealth. 4th the true reason of the remedy; And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy. In Regional Provident Fund Commissioner V. Shree Krishna Metal Manufacturing company (AIR 1962 SC 1536) The respondent factory which consisted of 4 separate units for manufacturing brass and copper sheets and utensils therefrom, for milling paddy, a flour mill and a saw mill was asked to comply with the provisions of the Employee’s Provident Fund Act 1952. The respondent contended that according to section 1 (3) (a) the Act applied to an industry mentioned in Schedule 1 in which at least fifty persons are employed and since in each of the 4 units less that that number were employed, it was not obligatory to comply with the provisions of the Act. Supreme Court held that the respondent were bound by the term of the Act because the context so required and that the expression in which qualifies the word factory and not the word industry. If the contention of the respondent was accepted the object of the statute and the mischief sought to be remedied would be defeated. Kanwar Singh V. Delhi Administration (AIR 1965 SC 871) The officers of the respondents, while rounding up stray cattle, were beaten up by the appellants the owners of the cattle. When prosecuted for an offence under section 332, Indian Penal Code the appellants pleaded right of private defence of property. They also contended that the cattle were not abandoned within the meaning of section 418, Delhi Municipal Corporation Act, 1957 in that abandoned means completely leaving a thing as a final rejection of one’s responsibilities so that it becomes ownerless as have been described in the dictionaries. The Supreme court while rejecting this argument, held that it is not necessary that the dictionary meaning of a word is to be always adhered to even if the context of an enactment does not so warrant. In present instance, to know the mind of the legislature, it is expedient to see what the mischief was intended to be suppressed and what remedy advanced. So interpreted, the word abandoned must mean let loose or left unattended. In Peyarelal v. Mahadeo Ramachandra (AIR 1974 SC 228) In this case the appellant was charged under the Prevention of Food Adulteration Act 1954 for selling and keeping for sale supari which was sweetened with a banned artificial sweetener. The appellant argued that supari was not a food within the meaning of the Act. The Supreme court rejected this argument and held that supari is an article of food. The definition of food under the Act is very wide and it covers all articles used as food as also every component entering into it including flavouring and colouring matters and preservatives. 3. The Golden Rule. The golden rule is a modification of the principle of grammatical interpretation. It says that ordinarily the court must find out the intention of the legislature from the words used in the statute by giving them their natural meaning but if this leads to absurdity, repugnance, inconvenience, hardship, injustice or evasion, the court must modify the meaning to such an extent and no further as would prevent such a consequence. On the face of it, this rule solves all problems and is therefore known as the golden rule. It is also called as modifying method of interpretation. In karnail singh v. Mohinder kaur ( AIR 2003 P & h 135) A Testator (writer of a will) had made a will in favour of his three sons and had deliberately disinherited his three daughters. During the lifetime of the testator one of these three sons died issueless leaving only his widow. The testator did not change his will and died about 2 years and 9 months after his son’s death. Interpreting the expression ‘lineal descendant” in section 109 of the Indian Succession act 1925 the Punjab and Haryana High Court while applying the golden rule stated that if the testator had any intention of disinheriting the widow of his pre-deceased son he could easily have made another will or could have executed a codicil to the existing will. Thus his intention was clear to the effect that the widow should succeed to the legacy of his pre-deceased son. Lee v. knapp Interpretation of the word “stop” was involved. Under section 77(1) of the Road Traffic Act 1960 a driver causing an accident shall “stop” after the accident. In this case a driver stopped for a moment after causing an accident and then moved away. Applying the golden rule the court held that requirement of the section had not been followed by the driver as he had not stopped for a reasonable period requiring interested person to make necessary inquiries from him about the accident. 4. Harmonious Construction. When 2 or more provisions of the same statute are repugnant, the court will try to construe the provisions in such a manner, if possible as to give effect to both by harmonizing them with each other. The court may do so by regarding 2 or more apparently conflicting provisions as dealing with separate situations or by holding that one provision merely provides for an exception of the general rule contained in the other. The basis of the principle of harmonious construction probably is that the legislature must not have intended to contradict itself. This principle has been applied in a very large number of cases dealing with interpretation of the constitution. It can be assumed that when the legislature gives something by one hand it does not take away the same by the other. One provision of an Act does not make another provision of the same Act useless. Raj Krishna v. Binod (AIR 1954 SC 202) The question before the court was the conflict between Section 33(2) and 123 (8) of the Representation of the people Act, 1951. Section 33(2) empowers a government servant to nominate or second a candidate seeking election whereas section 123 ( 8) says that a government servant is not entitled to assist a candidate in an election in any manner except by casting his vote. Holding that a government servant was entitled to nominate or second a candidate seeking election to the State Legislative Assembly, the Supreme court held that both these provision should be harmoniously interpreted. Harmony was possible only if section 123(8) of the Act is interpreted as conferring power on a government servant of voting as well as of proposing and seconding a candidature and forbidding him from assisting a candidate in any other manner. 5. The statute should be read as a whole (construction ex visceribus actus) One of the important general principles of interpretation is that the statute should be read as a whole and all parts of it taken together while construing a provision. This principle is also stated as that a statute is to be interpreted ex visceribus actus, that is to say, within 4 corners of the Act, A provision cannot be interpreted in isolation. Sometimes the meaning of words may be determined by other words used in the same section while in some cases a section may be interpreted in the light of some other sections in the same statute. The idea is to make a consistent enactment of the whole statute and for this the context and other provisions of the Act are important considerations. The court should however, be careful not to carry too far a construction of a provision with the help of other provision and should do so only when it feels that the legislature must have so intended. In Ram Narain v. State of Uttar Pradesh ( AIR 1957 SC 18) The appellant’s circumstances and property were taxed under section 14(1) (f) of the U.P Town Areas. Challenging the imposition he argued that even though he was carrying on business in the town area, he was not living in it and therefore could not be taxed. The Supreme court while rejecting this contention, held that while interpreting a particular enactment of a statute, it is essential to keep the whole scheme of the statute in mind, and so interpreting it becomes clear that residence within the town area is not an essential condition for imposition of tax on circumstances and property because circumstances mean’s one status and financial position which includes income from trade. In Gurmej singh V. Pratap Singh (AIR 1960 SC 122) The repondant’s election was challenged by the appellant under section 123(7) of the Representation of the people Act 1951 on the ground of use of corrupt practices by him because village headman or lambardars were appointed by him as his polling and counting agents. The law at that time was that revenue officers including village accountants were not entitled to assist in the election process even though other village officers could. The Supreme court held that while interpreting one enactment of a statute all part of the statute had to be kept in mind. So construed, it is clear that the legislature had distinguished between two kinds of officers viz the revenue officers which included village accountants also and other officers. Since village headmen or lambardars were neither revenue officers not village accountants, they fell in the category of other village officers who wren to barred from assisting in the election in such a capacity. 6. Construction ut res magis valeat quam pereat. Where alternative construction are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. The narrower of the 2 interpretations which would fail to achieve the objective of the law must give way to a bolder construction paving way for an effective outcome. An interpretation which makes certain words used in a statute pertinent and useful must be preferred to the one which renders them useless, void and ineffective. R V. Ewens Interpretation of Section 1(1) (a) of the Drugs (prevention of Misuse) Act 1964 was in question. Under this section it was a defence for an accused person to show that the scheduled substance found in his possession was by virtue of a prescription given to him by a medical doctor who was treating him of an aliment. Applying the construction ut res magis valeat quam pereat the court held that it was for the accused to prove the defence and the crown was not obliged to adduce any evidence to show that the exception was not available to him. M/s. Ethiopian Airlines V. M/s. Stic Travels (P) Ltd (AIR 2001 SC 2659) The Supreme court ruled that while interpreting any arbitrator statute if there if there be two possible interpretations the one which leans to satisfy the desired agreement should be accepted. 7. Identical expressions to have same meaning. It is reasonable to assume that when the legislature has used a particular expression in a statute many times, the expression must bear the same meaning everywhere. To call the same thing by the same name is a very safe proposition. But the courts should be very careful while applying this principle because the same expression expressed in a different context than the earlier one may have been intended by the legislature to have a different meaning. The courts while interpreting the same expression differently generally give the reason that their context is different. Another reason for doing so may be that the word exists in a consolidating statute where it has been derived from two distinct enactments. 8. Construction Noscitur a socis. Noscere means to know and sociis means association. Therefore, nosciture a socis means to known from the association. When two or more words which are suspectible a analgous meaning are put together, they are to be understood in their cognate sense. They take their colour from each other the meaning of the more general being restricted to a sense analogous to that of the less general. The principle helps in finding the true legislative intent and therefore cannot prevail where it is clear that wider words have been deliberately used. M.K.Ranganathan v. Government of Madras (AIR 1955 SC 604) Interpretation of section 232 of the old Indian Companies Act, 1913 was involved. The provision said that ‘where any company is being wound up by or subject to the supervision of the court, any attachment, distress or execution put into force without leave of the court against the estate or effects or any sale held without leave of the court of any of the properties of the company after the commencement of the winding up shall be void” The Supreme Court interpreted the words “any attachment, distress, or execution put into force’ associated with court and not otherwise like sale outside the winding up by a secured creditor. 9. Construction ejusdem generis. The expression ejusdem generis means of the same kind. Normally general words should be given their natural meaning like all other words unless the context requires otherwise. But when a general word follows specific meaning of the same category. The general expression takes its meaning using the particular words of a distinct genus has shown its intention to that effect. This principle is limited in its application to general word following less general word only. If the specific words do not belong to a distinct genus, this rule is inapplicable. The basis of the principle is that if the legislature intended general words to be used in unrestricted sense, it would not have bothered to use particular words at all. State of Bombay v. Ali Gulshan ( AIR 1955 SC 810) In this case the interpretation of Section 6(4) (a) of the Bombay Land Requisition Act, 1948 which said ‘State Government may requisition for the purpose of state or any other public purpose …” was involved. It was contended that under the provision the appellant was entitled to requisition premises for housing a member of the foreign consulate. The high court held that the expression any other public purpose should be read ejusdem generis with purpose of state, and providing accommodation to the member of the foreign consulate being the purpose of the union and not the state, the state Government had no authority to requisition. The Supreme court held that the High Court was in error in applying the principle of ejusdem generis. The general expression any other public purpose follows only a single expression for the purpose of a state which is not a distinct genus. In the absence of a genus the rule has no application. Further the intention of the legislature is quite clear by the words used in the enactment. By giving the words their natural meaning it is apparent that the expression any other public purpose includes providing accommodation to a member of a foreign consulate 10. Construction expression unius est exclusion aterius. The maxim means that express mention of one thing implies the exclusion of another. If one or more things of a particular class are expressly mentioned in an enactment that means that other things belonging to the same particular class are excluded from the domain of the enactment. Again where two expression have been used in a statute one of which generally includes the other, the more general expression excludes the less general. This principle is a general rule with regard to the effect of an enabling statute and means express enactment shuts the door to further implication. In Nandini Satpathi v. P.L.Dani ( AIR 1978 SC 1025) Interpretation of the term ‘confession’ used in Section 26 of the Indian Evidence Act 1872 was in question. It was argued that confession is a kind of admission and hence the ‘Miranda exclusionary rule’ or the American law of evidence is applicable in India. The said rule means that to statement made by a person in police custody shall be relevant. Rejecting the argument the supreme court ruled that the legislature has intentionally incorporated the word ‘confession’ in section 26 of the Act and hence it is applicable only to the confessional statement made by the accused and other statement are expressly excluded. Thus if an accused makes an admission in police custody, it becomes relevant because it is not attracted by the provision of section 26 of the said Act. 11. Construction Contemporanea exposition est fortissimo in lege The best exposition of a statute or any other document is that which it has received from contemporary authority. If the authority an enactment or a judicial decision, it has a binding force. Where an exposition has been done by a long usage that should be accepted even though it is different from the ordinary or the popular sense. When a statute was passed the people who were living then or thereabout may be presumed to know the circumstances under which the statute was passed and the prevailing circumstances at the time of its passage better than persons of the later generations. While interpreting old statutes high regard must be paid to the meaning given to them by judges of that time since they were in a better position than the present day judges to judge the intention of the legislature at that time. The rule generally is that the words of a statute should normally be understood in the sense they bore when it was passed. Senior electric inspector v. Laxmi Narayan (AIR 1962 SC 159) The Supreme Court disagreed with the view of the High Court that the expression telegraph line used in Indian Electricity Act, 1910 but not defined in the Act must have the same meaning as it had under the Indian Telegraph Act, 1885, wherein it was defined as a wire or wires used for the purpose of a telegraph. The Supreme court said that the High Court was wrong in applying the contemporanea exposition rule in the present case. There was no ancient statute to be construed here because the Act of 1910 is a comparatively modern statute. Further since the expression telegraph line was not defined in the Act, a definition much larger than what the High Court gave should have been given to the expression. The expression must be presumed to include electric lines used for the purpose of wireless telegraph because while passing the Act of 1910, the legislature must have had knowledge of electric lines coming into existence in a very near future for wireless telegraphic communication. A modern legislature must be presumed to be farsighted in keeping in mind the prospective revolutionary charges in all fields of human activity. ----------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx-------------------------- RATIO DECIDENDI It is a Latin phrase. The word ration comes from the word ratiocinate which means reason and the word decidendi signifies decision. Thus ratio-decidendi is the reason for the decision. Ratio-Decidendi is the general principle applied in a particular decision. It is the rule of law which the court regarded as governing the case in question. The Rule of law preferred by the judge as the basis of his decision or the rule of law which other regard as being of binding authority. Most of the precedents carry some points of law, some legal principles “What is law” in a precedent is its ruling.” The ruling on which a case is decided is called the ratio-decidendi; which concern future litigants as well as those involved in the instant dispute. Knowing the law in cases means knowing how to extract the ratio-decidendi from cases. According to Keeton:- it is the principle of law formulated by the Judge for the purpose of deciding the problem. When we say that judicial decision has a binding force for subsequent cases, it never means that the whole-judgment is binding it is only those statements in an earlier decision which may be said to constitute the ratio-decidendi of that case are binding as a matter of general principle in subsequent cases. We must now examine what constitutes the decision in a case and what it is that is actually binding on latter courts. A ratio is best regarded as a pointer towards the direction which subsequent decisions should take within a broad spectrum of variations. Case laws:- Re-Sigsworth: 1935 Mary sigs worth was murdered by her son. Question was whether the son could inherit her estate. The court held that he could not on the reason (ratio-decidendi) that “no one is entitled to profit from his own wrong.” BRIDGES V. HAWKESWORTH : 1851 Customer found money on the floor of a shop. The court applied the rule “finders keepers” (the ratio) and awarded the money to the customer rather than to the shopkeeper. If judges gives 2 reason for his decision both are binding/. JACOBS V. LCC (1950) The appellate court each of 5 judges gave 5 reason for arriving to the same Judgement. So the subsequent court may adopt any of them for the purpose of deciding the case before itself. Salmond states that ratio-decidendi is the reason for the decision as given by the judge in an actual suit. Many jurists opines that ratio-decidendi means the rule of law which other regard as being of binding authority. How can Ratio-Decidendi of a case be ascertained/determined. There are 2 major approaches. 1.The Reversal Test:- This test was propounded by Prof.Wambaugh. According to him we should take the proposition of law put forward by the judges and reverse and then see if the reversal has altered the decision. If the reversal changes the decision then the proposition is the ratio. If no reversal then the proposition is not a ratio. Limitation:-  Not helpful where no proposition of law is given or  Where court gives several reasons for its decision. 2. The material Facts Test:- This test was given by Dr. A.L.Goodhart According to him ratio can be determined by ascertaining the facts treated as material (relevant) by the Judge. Good harts contends that the statement of the law and the judge’s reason are of importance for they furnish us with a guide for determining which facts the judge considered material and which is immaterial. According to Salmond, a precedent is a Judicial decision which contains itself a principle. The underlying principle which thus forms its authoritative element is often termed as the ratio-decidendi. --------------------------xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx------------------------ OBITER DICTA Pronouncements of law, which are not part of the ratio decidendi are called as obiter dicta and they are not authoritative or binding on sub-ordinate courts. Obiter dicta may be defined as mere casual expression by the court which carry no weight. All that is said by the court by the way or the statement of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand are called obiter dicta. These dicta have the force of persuasive authority and are not binding upon the courts. The court may seek help from them but they are not bound to follow them. Obiter dicta literally means something said by the Judge by the way, which does not have binding authority. Goodhart defines obiter dictum as a conclusion based on the fact of the existence of which has not been determined by the court. The difference between ratio-decidendi and obiter dictum can be better understood from the facts and decision in R V. Franklin In this case the deceased was bathing in a sea at Brigton sea-beach in july 1882. The accused Franklin stole a big box from a hotel situated at the sea beach and threw it into the sea. It struck Trenchard (the deceased) who was bathing there and consequently caused his death. The court sentenced him to two months ‘imprisonment. According to Justice Field the ratio-decidendi of this case was- 1. That if a person while committing a wrong or as a consequence of the wrong causes death of a person, he cannot be held guilty for manslaughter only because of the reason that a death has been caused due to his act. 2. A person who causes death of another person due to his gross negligence, shall be guilty of manslaughter. In this case, justice Field expressed a view by way of obiter dicta that even if the prosecution succeeds in proving that the alleged tort of negligence was committed by the accused, he shall not be guilty of manslaughter until jury finds him guilty for his offence. S.R.BOMMAI V. UNION OF INDIA (1994) 3 SCC The nine judge Bench of the Supreme Court unanimously held that secularism is one of the basic structures of the constitution of India. Justice Sawant and Kuldeep Sigh observed that social pluralism is one of the basic structure while Justice Ramaswamy observed that socialism, social justice and fraternity are included in the basic structure of the constitution. Justice Ahmadi opined that the rights contained in Article 15, 16 and 25 of the Constitution formed a part of its basic structure. These observations of the learned Judges are obiter dicta as they were not directly in issue in the instant case. The ration of the case is that secularism is a part of basic structure of the constitution. …………………..xxxxxxxxxxxxxxxxxxxxxxxx………………………… Doctrine of stare Decisis Like England, the doctrine of Stare Decisis has been accepted under the Indian law. The Doctrine of Stare Decisis literally means ‘let the decision stand in its rightful place’. When a decision contains a new principle, it is binding on subordinates courts and has persuasive authority for equivalent courts. This rule is based on expediency and public policy. Although this doctrine is generally followed by the courts, but it may not be applicable if the court is convinced that the earlier wrong is likely to perpetuate resulting into erroneous decision. The operation of the doctrine of stare decisis presupposes the existence of a hierarchy of courts. Ex;- in India the courts of the first instance are the subordinate courts, above them are High Courts and the Supreme Court is at the apex. Thus the Supreme Court is the Highest Judicial court in India. The general principles on which the doctrine of stare decisis is based may be stated as follows, 1. Each court is absolutely bound by the decision of the court above it. 2. To a certain extent, higher courts are bound by their own decision. In India the Supreme court is however not bound by its own decision. 3. The decision of one High court is not binding on any other High Court and it has only a persuasive value. 4. A single Bench Judge is bound by the decision of a Division Bench of the same High court but a division bench is not bound to follow a decision of a single bench (judge) of the same High Court. In Maktul V. Manbhari (AIR 1958 SC 918) The Supreme Court held that if the correctness of a decision has been challenged time and again, the rule of stare decisis need not be applied. In Supreme court Advocates on Record Association V. Union of India.(AIR 1994 SC 268) The Supreme Court held that the doctrine of Stare decisis is not an inflexible rule and it has little relevance in constitutional cases. The court observed that there is no doubt that the rule of stare decisis brings about consistency and uniformity but at the same time in exercising its inherent power the Supreme Court should ask itself whether in the interest of public good or any other valid reason, it is necessary that its earlier decision should be revised. In Bachan Singh V. State of Punjab (AIR 1980 SC 898) The Supreme Court held that ‘if the rule of stare decisis was following blindly and mechanically, it would dwarf and stultify the growth of the law and affect its capacity to the changing needs of the society. --------------------------------xxxxxxxxxxxxxxxxxxxxxx---------------------------------- UNIT-5 What is Research and explain different steps of Research. Research is combination of two words Re + Search which means the repetition of search. According to Plutchick research means to go around as to explore. Research is the process of collection of evidence or information for ascertaining an assumption or verifying some hypothesis. Research per se is a technique for the discovery of truth. Objectives of Research. Right from the evolution of human society, intellectuals of the society are always inclined to probe for facts of the empirical world and to reveal the truth. “every aspect of human behavior or facts of life have problem. In society there were problems, there are problems and there will be problems. We have to find out answer to those problems. Hence this is the requirement of the society to conduct research. Research is directed towards the solution of a problem. “Research is directly proportional to development and development is directly proportional to the quality of advanced research. Research is an inseparable part of human knowledge. Definitions. According to R.R.Rusk :- Research is a point of view, an attitude of inquiry or a frame of mind. It asks questions which have not been answered and it seeks to answer them by following a fairly definite procedure. It is not mere theorizing but rather an attempt to elicit fact and to face them once they have been assembled. The Webster’s international dictionary defines Research as “a careful inquiry or examination in seeking fact or principles; diligent investigation in order to ascertain something. According to John W. Best:- Research is considered to be more formal systematic, intensive process of carrying on the scientific method of analysis. It involves a more systematic structure of investigation usually resulting in some sort of formal record of procedure and report of result or conclusion. Main characteristic of research is it’s logical and empirical nature. The research discovers new facts and verifies old facts. It tries to establish cause and affect relationship. According to Clifford woody, Research Comprises of; 1. Defining and redefining problems. 2. Formulating hypothesis and suggested solutions. 3. Collecting, organizing and evaluating data. 4. Making deductions and reaching conclusions. 5. And at last carefully testing the conclusions to determine whether they fit the formulating hypothesis. These are the main characteristics of research. 1. Research is systematic 2. Research is logical 3. Research is purposeful 4. Research is accurate 5. Research collects data 6. Research involves hypothesis or testing of hypothesis 7. Research is transmittable. Meaning of methodology? Method is the way of doing something and methodology is an science or philosophy of that method. For research various methods or ways are used to collect data. In a research, process of justification and explanation of method is called methodology. Dr. S.N. Myneni explains that ‘Method is the way of doing something. Methodology is the science or study of particular subject. Methods of Research are- 1. Scientific method:- It is more systematic way of study. It is ‘a systematic step by step procedure following the logical processes of researching”. 2. Unscientific method:- A systematic procedure for study is not a must. This type of research is only used for fastest result. It is a kind of unsystematic or random method. Ultimately researcher has to opt scientific method to establish authenticity, to its result. So unscientific method is not recommended for any academic research. Types of Research. 1. Educational Research. 2. Behavioral research 3. Inductive or deductive research 4. Empirical or non-doctoral research 5. Doctrinal research 6. Descriptive research. 7. Historical research 8. Qualitative or experimental research Limitations of Research 1. All problems cannot be researched. 2. Time and budgetary constrainsts 3. The lack of a scientific training in the methodology of research. 4. Research studied over lapping one another are undertaken quite often for the want of adequate information. 5. There doesn’t exist a code of conduct for researchers. 6. There is lack of adequate and support from government or secretariat. 7. Library management and functioning is not satisfactory at many places. 8. There is lack of timely availability of published data. Steps in Research process. Formulation of research problem  Review of literature  Conceptualizing of research design ↓ Collection of data (selection of methods and tools)  Analysis of data (editing, coding and tabulation) ↓ Interpretation of data  Generalization and writing a research report ----------------xxxxxxxxxxxxxxxxxxxxx------------------------------- What is Legal Research and explain the objectives of legal research. Law as well as society where it applies is not static. Dynamic nature of law and society requires change according to circumstances and time. Legal research is not essentially different from other types of researches. Its issues of inquiry naturally relates to pure law or law in relation to society. Under the broad theme of inquiry about law, an analysis is made of the rules, concepts and institutions of the law and of legal system itself. Legal research is the process of identifying and retrieving information necessary to support legal decision making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of facts of a problem and concludes with the application and communication of the results of the investigation. The primary aim of legal research is to suggest improvement in the existing law as it has failed to produce the desired result or to extend or reduce its scope. The second aim of legal research is to suggest a kind of law to deal with a particular fact or set of facts where it does not exist at all. Academician, lawyers, judges, law commission, law librarian and para-legal constantly do research in law. 1. Analytical research:- Analytical research is used to know the nature of law and to explain what is existing law and whether legislature is competent. This type of research is used to locate the statute or law. It must also be noted that to undertake this type of research a research would be expected to have sound knowledge and the scheme of distribution of legislative power between center and state. 2. Comparative study of law. It is a unique tool within the scenario of legal research and study. Legal research includes not only the techniques of interpreting the text, rules or statutes but also the discovery of models for preventing social conflicts. Different system of the world has different laws and can offer a variety of solution for other nation. The comparative study can provide better solution than legal research method devoted to a single nation. So the comparative researchers are generally used by the responsible agencies for law reform and most of the times proved a real asset for reforms. Legal research – Kinds and Methods:- Legal research can be classified into 1. Doctrinal or traditional or non-empirical Research:- A doctrinal research means a research that has been carried out on a legal proposition by way of analyzing the existing statutory provisions and clauses by applying the reasoning power. According to Prof.S.N. Jain ‘doctrinal research involves analysis of case law, arranging ordering and systematizing legal propositions, and study of legal institutions through legal reasoning or rational deduction. This kind of research is mostly carried out by judges, lawyers and law teachers”. According to jurist Cardozo “ law or legal propositions are not final or absolute. They are the state of becoming. Accepted norms or principles whether statutory or as a principle of justice, equity and good conscience are applied again and again to test its veracity or authenticity as a true principle of law. If it is found to be unjust, it may be modified or changed to meet the present requirements. Legal research help changes in laws. Ascertaining a legal rule for the purpose of solving a problem is one of the purposes of the traditional legal research. The original sources of information of a legal research are called ‘primary sources’. Original source or primary sources are statutes, stare decisis or precedents, case laws decided by supreme court and high court of India. There are secondary sources like text books, law commentaries on Indian Constitution, Indian Penal Code etc and they do not posses authority equivalent to the original sources. The ultimate source for this kind of research is the law library. 2. Empirical or Non Doctrinal Legal Research:- ---------------------------xxxxxxxxxxxxxxxxxxxxxxxx-------------------------------- Answering in examination. An examination (exam) is a test. It is an assessment to measure a test taker's knowledge, skill, aptitude, physical fitness, or standing in some other topic. It is a set of question that fi

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