1

Course I
Introduction to law and legal systems

Professors: Meenakshi & Diya

Q1. Name and describe 4 characteristics of rules in a legal system.

Answer:

1.Rules should be clear, published and knowable-

● Clarity - easily understood by the general population, legal professionals, etc.

● published - making them publicly available through official channels such as
government websites, legal publications etc.
● Knowable - individuals are expected to have reasonable access to the laws that
govern their conduct and rights.

2. Rules provide a justification for action- This ensures that the behaviour expected from
individuals are guided by established norms and standards set forth by the legal systems. It
enables individuals to understand the reasons behind legal requirements.

3. Rules are peremptory- This means they are binding and non-negotiable. They are final,
absolute and mandatory without requiring further justification.

4. Rules guide conduct - They play a crucial role in shaping behaviour and ensuring
adherence. They offer guidelines on how to act in various situations to align with the legal
requirements.

5. Violations of rules attract consequences - When individuals or entities breach

established rules, they face various consequences depending on the severity of the
violation. They can include fines, sanctions or imprisonment.

An example of a rule encompassing all the characteristics mentioned in the Indian legal
system can be found in, Article 14 - “The state shall not deny to any person, equality before
the law or the equal protection of the laws within the territory of India”.

-This rule is clear published and knowable to all individuals within the legal system.

-It provides a justification for action by ensuring all individuals are treated equally under the
law.

-The rule is peremptory, and must be followed without exception.

-It guides conduct by setting a standard for equal treatment in the application of the law.

-violation of the rule attracts consequences as it is the fundamental principle of the Indian
legal system.
 2

Q2. In the context of a rule, what are Protasis and Apodosis and how can they assist
in rule interpretation.

Answer:

Protasis-

Considering the rule that states, “if a person is found driving under the influence of alcohol,
they shall be subject to a fine of Rs.10,000”.

In this case the protasis is “if a person is found driving under the influence of alcohol”, which
sets the condition for the rule to be applicable.

Apodosis-

The Apodosis is “they shall be subject to a fine of Rs.10,000”, which specifies the
consequences of driving under the influence of alcohol.

This part of the rule outlines the legal penalty for breaking the condition set forth in the
protasis.

Simplifying Complex Rules-

The rule can be further simplified by breaking it down into protasis and apodosis. This would
make it easier to understand when the rule applies and what the consequences are.
For example, “if you drive under the influence of alcohol, you will be fined Rs.10,000.”

Literal interpretation-

A literal interpretation of this rule would be that if a person is found driving under the
influence of alcohol, they will be fined Rs.10,000. This interpretation is based on the explicit
wording and grammatical meaning of the rule.

Specialised Rules of Interpretation-

For example, if the person is a minor, the fine may be reduced or waived. In such cases,
specialised rules of interpretation would be necessary to address the problem that cannot be
resolved through a straightforward application of protasis and apodosis.

Therefore, Protasis is the ‘if’ part of a rule, setting the conditions for its application.
Apodosis is the ‘then’ part specifying the consequences when the conditions are met.
Breaking rules into these parts, simplifies complex rules. However, specialised rules may be
needed for complex situations.
 3

Q3. What are the vertical and horizontal application of the doctrine of precedent? How
are these applied in the Indian legal system? Substantiate with examples.

Answer:

In the Indian legal system, the concepts of vertical and horizontal application determine the
binding nature of legal decisions across different levels of courts and benches.

The higher court’s judgement is binding on all courts below and all future courts.

-This common law principle of precedence is called “Stare decisis”, which means “Let the
precedence be”.

Vertical application-
This refers to the decisions made by a higher court being binding on lower courts.

Example:
A decision of the Supreme Court of India is binding on all other courts in the country.

Case law:
Kesavananda Bharati V. State of Kerala

This landmark case ensures that the legislative actions do not violate the basic structure of
the Constitution. The case serves as a guiding precedent for lower courts when dealing with
constitutional matters.

Horizontal application-
At the same level of court, the hierarchy of bench strength, i.e., higher the strength, the
higher it is in hierarchy. The court adheres to its own precedent.

Example:
A 3-judge bench’s decision in the Bombay High Court is binding on another 3-judge
bench within the same court.

Advantages of vertical and horizontal application of the doctrine of precedent (Stare-

decisis):

● It ensures consistency and certainty in legal decisions, providing a framework for

future cases.
● It prevents arbitrary decisions by the judges, ensuring that individuals are treated
equally under the law.
● It streamlines the legal process by offering guidance to Judges when deciding cases,
saving time and resources.
 4

Q4. Name and describe four sources of Indian law.

Answer:

*The Constitution of India - is the primary source of law in the country, the highest law of
the land. The Constitution of India recognises statutes, case law and customary law.
Article 73 extends the executive power of the Union.
Article 62 extends similar power to the States.

*Legislation, such as Acts and statutes - is the primary source of law in India. The Central
government has the power to make laws listed in the Union list. The State government can
legislate on items in the State list. In case of concurrent subjects, the Central government’s
legislation prevails over the state legislation.

*Precedents/case-law - The higher court’s judgement is binding on all courts below and all
future courts. This is called “Stare decisis” which means “let the precedence be”.

Vertical application- decisions made by a higher court are binding on lower courts.

Horizontal application- at the same level of court, higher the bench strength, higher it is in
hierarchy. The court adheres to its own precedent.

In India, article 141 of the Constitution states that law declared by the Supreme Court is
binding on all courts within the territory of India.

*Customs - For a custom to be recognised as law, it must demonstrate continuous and

peaceful practice over time without interruption. Such laws should not conflict with existing
legal provisions to be considered valid and enforceable. In India, judicial recognition is
essential for customs to be acknowledged as law. Customary law reflects tradition and local
practices.

Example: Khap panchayats

 5

Q5. Is the Indian legal system, a common law system, civil law system or a hybrid
legal system? Substantiate your answer with examples.

Answer:

The Indian legal system is considered a hybrid legal system incorporating features from both
the common law and civil law traditions. While it has its roots in the common law system, it
has evolved to include elements from the civil law system as well. It includes extensive
codes and detailed regulations, reflecting characteristics of a civil law system.

Examples of the hybrid nature of the legal system:

Criminal law in India is governed by the IPC and CrPC which are typical of common law
systems.
Whereas, Civil law matters are dealt under the Code of Civil Procedure, focusing on
dispute resolution rather than punishment.
This blend in common law and civil law showcases the hybrid nature of the Indian legal
system.

Common law influence-

● The common law system in India is rooted in Judge-made law and precedents,
where judicial decisions set precedents for future cases.
● The adversarial system of trial where the burden of proof lies with the prosecution
and the accused enjoys the right to silence is a significant feature derived from
common law.

Civil law influence-

● Civil law in India focuses on resolving disputes between individuals or organisations

through civil suits and is governed by Code of Civil Procedure, 1908.
● The civil law tradition emphasises codes and regulations to govern various aspects of
civil matters like family law, property law and contract law.

In summary, India’s hybrid legal system has both common law and civil law elements to
create a comprehensive legal framework that addresses the diverse needs of its population.
 6

Q6. What do the terms original and appellate jurisdiction mean in the context of Indian
courts? Provide examples to support your answer.

Answer:

Original jurisdiction-
Article 131, Indian constitution- The Supreme Court of India, being the highest court in the
country, has original jurisdiction, which refers to being the court of first instance. This
jurisdiction includes disputes between the Indian government and one or more states,
disputes between different states and matters related to the enforcement of fundamental
rights under Article 32 of the Constitution.

Appellate Jurisdiction-
This involves cases that are appealed from lower courts to either a High Court or Supreme
Court.

Civil Appellate jurisdiction:

Article 133 - allows an appeal to be filed in the Supreme Court from any judgement in a civil
proceeding of a High Court if the High Court certifies.

Criminal Appellate jurisdiction:

Article 132 - allows an appeal to the Supreme Court, if the High Court certifies that the case
involves a substantial question of law as to the interpretation of the Constitution.

Special Leave jurisdiction:

Article 136 - The Supreme Court has the discretion to decide whether to grant special leave
to appeal based on the merits of the case. This provision enables litigants to bypass the
usual appellate process appeal directly to the Supreme Court without having to go through
lower courts first.

Writ jurisdiction - Article 32

issuing writs
The supreme Court can enforce fundamental rights by showing rates. This allows individuals
to directly approach supreme court without going through hierarchy of courts to safeguard
their fundamental rights guaranteed under,
Ex:
● Article 14 - Right to Equality
● Article 15 - Prohibition of discrimination
● Article 21 - Right to life and personal liberty
● Article 25 - Freedom of religion

Jurisdiction of High Court-

High courts are the highest judicial bodies at the state level. India has a total of 25 High
Courts. High Courts like Calcutta, Bombay and Madras have original jurisdiction.

Article 226 empowers High Courts to issue writs to enforce fundamental rights. High courts
hear appeals from district and subordinate courts on civil and criminal matters.
 7

Q7. Name and describe the ingredients of the rule of law based on Jeremy Waldron,
Fuller’s principles.

Answer:

The Rule of law is the principle that all citizens and institutions are accountable to the same
laws, including lawmakers and leaders.
It emphasises that ‘no one is above the law’, ensuring equality before the law.

*No impossible demand-

The rule of law requires that laws are not impossible to comply with, ensuring that individuals
can reasonably adhere to legal requirements without facing impractical demands.

For example, laws related to taxation are structured to be understandable and feasible
for the taxpayers, preventing unrealistic or unattainable requirements.

*Prospective and Not Retrospective-

It is essential that laws are prospective, meaning they apply to future actions and not
retrospective, ensuring that individuals are aware of legal obligations before engaging in
activities.

For example, changes in labour laws are typically implemented with advance notice to
allow businesses to adjust their practices accordingly.

*Consistent with other laws-

The rule of law requires that laws are consistent with each other, avoiding contradictions or
conflicts between different legal provisions to maintain a harmonious legal system.

For example, in the environmental regulations, the laws related to pollution control align
with broader environmental protection statutes to ensure coherence in legal provisions.

*Laws to be made public-

This requires that laws are made public and accessible to all citizens so that individuals can
understand the rights and obligations under the law.

Example - Gazette notifications are official publications where new laws, regulations and
government decisions are announced to the public.

*Constant-
The rule of law emphasises the need for stability and constancy in legal systems, ensuring
laws are applied consistently over time without arbitrary changes, providing predictability and
reliability in governance.

For example, property laws are designed to provide long-term security and consistency
in property rights, ensuring that legal frameworks remain constant over time.
 8

Q8. Describe the two models of law making based on Jeremy Waldron, Partisan model
of law-making and Neutral model of law-making.

Answer:

Partisan model of law making:

*Party influence-
Emphasises legislative decisions based on party ideology and tight party discipline,
legitimising party leadership’s influence.

*Decision-making focus-
Centres on the ideology of the party in power, leading to decisions reflecting party positions.

*Legitimacy and Responsibility-

Views party attitudes as legitimate and essential in law making processes.

For instance, if a political party in power strongly believes in implementing certain

economic policies, they are likely to pass laws that align with these beliefs, even if there is a
position.

Examples:
● Farm laws in Karnataka,
● Pension schemes - Repealed and reverted to old scheme

Party whip: a party whip, instructs its members on how to vote along the lines of the party.

Anti-defection law: governed by the 10th schedule of Constitution of India prevents a

member of Parliament once elected to Parliament, to change party lines arbitrarily.

Neutral model of law making:

*Party influence-
Emphasises respect for law beyond party lines, highlighting special non-partisan
responsibilities associated with law making.

*Decision-making focus-
Prioritises the special nature of law and it’s non-partisan obligations in decision-making
processes.

*Legitimacy and Responsibility-

Implies a broader responsibility towards lawmaking that transcends partisan interests.

For instance, when a bill has been debated in Parliament, lawmakers would focus
irrespective o
f the party lines together as body of Parliament, making loud to the benefit of the society.

Examples: laws
● Women’s Reservation Bill,
● Criminal law amendments after the Nirbhaya case
 9

Q9. What is delegated legislation? Explain the various forms of delegated legislation.

Answer:
Delegated Legislation is the process where the Traditional Executive or a regulatory
body is granted legislative authority by legislature to create laws, to implement and
enforce legislation.

*Rules - rules are detailed regulations created by the traditional executive to provide specific
a
guidance on how we particular legislation should be implemented and enforced.
Example: IT Rules 2021,
MEITY, the executive body has been granted legislative authority

*Regulations - regulations are created when power is delegated to non-traditional regulatory

bodies. These regulations help in governing specific sectors or activities.
Example: SEBI introducing new regulations to govern mutual fund investments

*Bye Laws - Bye-laws, dictate how authorities must conduct themselves, focusing on
internal governance and procedures.
Example: Karnataka Municipalities Act Bye-Laws

*Notification - Notifications are commonly used in the context of conditional legislation,

serving as official announcements or declarations regarding specific legal matters.

Example: The Ministry of finance issuing a public notification on changes to GST rates

*Directions - Directions are instructions that offer guidance on how certain actions or
processes should be carried out.

Example: The Ministry of Health issuing guidelines for hospitals on COVID-19 Patient
treatment protocols

*Schemes - Schemes refer to the implementation of specific programmes outlined by the

government to achieve particular objectives.

Example: The launch of the ‘Swachh Bharat Abhiyan’ by the Indian government to
promote cleanliness

*Circulars - Circulars are communications that provide explanations, clarifications or

updates on legal or administrative matters, distributed within an organisation or to the public.

Example: The Ministry of Education issuing a circular to all schools regarding

implementation of new policy

*Orders - Orders are directives issued by adjudicating tribunals and must be followed as
they dictate specific actions.
 10

Example: The National Green Tribunal, issuing an order directing a polluting industry to
cease operations
Q10. Describe the different kinds of Government bills and discuss about the Private
member bill.

Answer:

Government Bills:

*Original Bills - These bills introduce new ideas, proposals or policies to address emerging
issues or gaps in existing legislation.

Example: The Bharatiya Nyaya Sanhita Bill, 2023, aims to replace laws like the Indian
Penal Code of 1860, the CrPC and the Indian Evidence Act

*Amending Bills - These bills aim to modify, amend or change existing laws to changing
circumstances, rectify flaws or enhance the current legislation.

Example: The Citizenship Amendment Act, 2019, amended the Citizenship Act of 1955

*Consolidating Bills - These bills consolidate multiple laws into single comprehensive
legislation.

Example: The Companies Act, 2013 consolidated and replaced previous company laws

*Expiring Bills - These bills renews laws that are set to expire due to sunset clauses,
ensuring continuity in regulations.

Example: The Epidemic Diseases Act, 2020 renewed provisions related to Covid-19

*Repealing Bills - These bills are enacted to remove laws that are no longer relevant,
effective or necessary.

Example:
● The Repealed and Amending Bill, 2023 is aimed at removing outdated or redundant
laws
● The Farm laws Repeal Bill, 2021

*Bills to Replace ordinances - These bills formalise laws that are initially passed as
ordinances, when the Parliament was not in session.

Example: The Essential commodities Ordinance was replaced by the Essential

Commodities Act, 2020
 11

*Constitution Amendment Bills - These bills are crucial for amending the constitution,
reflecting changing, societal, needs, values and circumstances.

Example: the Women’s Reservation Bill seeks to provide 33% reservation to women in
the Lok Sabha, State Legislative Assemblies and the Delhi Assembly

*Money Bills / Finance Bills - Money Bills deal with financial matters like taxation and
public expenditure. Finance Bills outlines taxation policies and fund allocations.

Example: The Finance Bill, 2023

Private Member’s Bill:

This Bill is introduced by individual Members of Parliament who are not part of the
government.

Example:
● Rights of Transgenders were originally introduced as a private member bill.
Subsequently, the bill was reintroduced as a government bill.
● Muslim Wakfs Bill, 1952 - introduced as private member bill, eventually passed into
law in 1954.
Q11. (a) What is the significance of ratio decidendi in judicial precedents, and
how does it differ from obiter dicta?
(b) What are the advantages of stare-decisis?
Answer:

Ratio Decidendi
Ratio decidendi is a Latin term that means "the reason for deciding". It refers to the legal
principle or reasoning that forms the binding part of a court's decision in a particular case.
The ratio decidendi is the part of the judgment that provides the legal basis for the court's
decision and sets a precedent for future cases with similar facts and legal issues.

When a court decides a case, it considers various arguments and issues raised by the
parties. The ratio decidendi is the specific legal principle or rule that the court identifies and
applies to resolve the legal question at hand. It represents the essential and necessary part
of the decision that is binding on lower courts and serves as a precedent for future cases.

Obiter dicta
The obiter dicta, which means "other things said", refers to statements or observations made
by the court that are not strictly necessary for the decision. These statements do not have
binding authority but may provide persuasive guidance or legal commentary on related
issues.

Distinguishing the ratio decidendi from obiter dicta is crucial in legal reasoning as it helps
establish the binding precedent that must be followed in subsequent cases. It provides clarity
on the legal principle that courts should apply in similar situations and ensures consistency
and predictability in the law.

Identifying the ratio decidendi can sometimes be challenging, especially in complex cases
with multiple issues and arguments. Courts may provide different reasons or interpretations,
leading to debates about the precise ratio decidendi. However, the ratio decidendi is
fundamental in establishing legal precedents and shaping the development of the law.

(b) Precedent, or the doctrine of stare decisis, is an important feature of common law. It has
both advantages and disadvantages in the legal system.

● The advantages of the doctrine of stare decisis is that it promotes stability and
predictability in the legal system
● It ensures that similar cases are treated similarly, which can help to prevent arbitrary
or inconsistent decisions by judges.
● However, the doctrine is not absolute, and there are circumstances in which a judge
may depart from a precedent, such as when the precedent is outdated or was
decided wrongly. In such cases, the judge must provide a reasoned explanation for
departing from the precedent.
Q12. Discuss the advantages and disadvantages of precedent (stare decisis)
Answer:
Advantages

Certainty and predictability: Precedent promotes legal certainty and predictability. When
judges follow established precedents, it provides a consistent framework for the
interpretation and application of the law. Individuals and legal practitioners can anticipate
how similar cases will be decided based on previous rulings, which enhances the stability
and predictability of the legal system.

Efficiency and consistency: Precedent helps streamline the legal process by providing
guidance for judges in deciding cases. Instead of starting from scratch with every case,
judges can rely on existing precedents to reach decisions efficiently. This consistency also
promotes fairness, as similar cases should be treated similarly, ensuring equal treatment
under the law.

Judicial restraint: Precedent encourages judicial restraint and respect for the decisions of
higher courts. It prevents lower courts from frequently challenging or overturning established
legal principles, ensuring that legal interpretations are not subject to arbitrary changes. This
promotes the principle of separation of powers and maintains a level of stability and respect
for the judiciary.

Development of law: Precedent allows for the gradual development and evolution of the
law over time. As new cases arise and are decided, precedents are established, providing
guidance and shaping the interpretation and application of the law. This allows the legal
system to adapt to societal changes and developments, ensuring the law remains relevant
and responsive.

Disadvantages

Inflexibility: Precedent can be seen as inflexible, as it requires judges to follow previous

decisions even if they believe they are incorrect or outdated. This can hinder the ability of
judges to adapt the law to changing circumstances or to correct past mistakes. It can create
a resistance to change and make it difficult to address emerging legal issues or correct
injustices.

Stifling creativity and innovation: Strict adherence to precedent may discourage judges
from taking a fresh look at legal issues or proposing new legal approaches. It can stifle
creativity and innovation in legal reasoning, preventing the development of more progressive
or adaptive interpretations of the law.

Overreliance on past decisions: Blindly following precedent may lead to the perpetuation
of legal errors or unjust outcomes. If a previous decision is flawed or based on incorrect legal
reasoning, following that precedent can perpetuate injustice and hinder the pursuit of justice
in subsequent cases. It can also create inconsistencies if different courts interpret the same
legal issue differently, leading to confusion and a lack of uniformity in the law.

Difficulty in correcting erroneous precedent: Overturning or modifying a precedent can

be a complex and time-consuming process. It often requires a higher court to review and
reconsider the previous decision, which may take years or even decades. In the meantime,
individuals may be subject to unfair or unjust outcomes based on an erroneous precedent.
Q13. Name and describe the ingredients of the rule of law based on A.V. Dicey.

Answer:

Dicey attributed the following three meanings to Rule of Law

(1) Supremacy of Law

"no man is punishable or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the
land."

Dicey emphasizes that no individual can be lawfully punished except for a clear violation of
established law through proper legal procedures. This principle underscores the absolute
supremacy of law over arbitrary power,

For instance, if a person is accused of a crime, they can only be punished if found guilty
through a fair trial in accordance with established laws.

(ii) Equality before Law

“No man is above law”

Dicey says that there must be equality before law. It signifies that every individual,
regardless of their position or status, is subject to the same legal framework and must abide
by the laws of the land.

For example, it should apply equally to ordinary citizens and to government officials.

(iii) Predominance of Legal Spirit

"The constitution is pervaded by the rule of law and the general principles of the constitution
are the result of judicial decisions determining the rights of private persons in particular
cases brought before the courts."

Dicey emphasizes the significance of the rule of law in the constitution, highlighting that the
principles governing the constitution are shaped by legal decisions made in court cases.

For example, right to personal liberty, freedom from arrest etc. are the result of judicial
decision in particular cases which have actually arisen between the parties.
Q14. (a) What is a rule. Describe the 4 aspects of a rule. (b) Discuss about the
elements of a rule.
Answer:

(a)A general norm, mandating or guiding conduct or action In a given type of situation.
A typical rule in this sense prescribes that in circumstances X, behaviour of type Y ought, or
not to be, or maybe, engaged in by persons of classes Z.

The four aspects of a Rule

For example, consider a workplace rule that states:
"Employees must wear formal attire during business hours."

1. Normative: This rule prescribes a norm by mandating a specific dress code for
employees.
2. General: It applies to all employees and specifies the type of attire to be worn during
work hours.
3. Guides and sets standards: It guides employees on the appropriate dress code
and establishes a standard of professionalism within the workplace.
4. Justification: The rule justifies the requirement for formal attire by promoting a
professional image and maintaining a certain level of decorum in the workplace.

Therefore a rule is a normative guideline that dictates or directs behaviour in specific

situations. It is general, applying to types of behaviour and circumstances, guiding and
setting standards for conduct, and justifying actions or decisions.

(b) Elements of a rule

Form:
The form of a rule is based on certain principles and can take various types such as laws,
regulations, statutes, ordinances, or customary practices.
● For example, any legal rule should adhere to specific principles, such as being
clearly worded and communicated to those it affects.

Content:
The language used to draft rules indicates the type of rule it is, whether normative,
mandatory, guidance, or permissive.
● For instance, a normative rule may state that all employees must attend a safety
training session.

Effect:
The consequence of not following a rule is the effect it has.
● For example, failing to stop at a red light may result in a fine.

Rationale:
The reason behind creating a rule and the purpose it serves is its rationale.
● For example, traffic rules are established to prevent accidents and ensure road
safety.
Q15. Explain the concept of core and fringe introduced by HLA Hart in legal theory.
Explain the two types of hard cases that emerge from rule generalization.

Answer:

The concept of core and fringe, introduced by legal philosopher HLA Hart, is exemplified
through a rule prohibiting vehicle entry in a park.

● The core of the rule encompasses straightforward implications like banning trucks
and cars, while ambiguity arises with items like wheelchairs and strollers, prompting
legal interpretation and debate.

● If a vehicle is defined as any means of transportation for saving time, wheelchairs

and strollers could fall under this definition. Additionally, the justification for the rule,
aiming to ensure citizens' freedom in the park, supports allowing such
non-threatening vehicles.

● While the core aspects are easily deduced, the penumbra encompasses areas of
uncertainty and interpretation. Legal professionals, including lawyers and judges,
play a crucial role in navigating these gray areas and applying the rule effectively.

● The evolution of rule application may occur when entirely new factors, such as
drones in the park, challenge existing interpretations. This dynamic nature of legal
interpretation requires a balance between adherence to past implementations and
adapting to novel circumstances.

Understanding the core and fringe of rules not only involves defining key terms but also
justifying the underlying principles guiding their application. By considering both the literal
definition of terms like "vehicle" and the broader intent of rules, such as promoting public
safety and freedom, legal experts can navigate complexities and ensure fair and effective
rule enforcement in diverse situations.

Rule generalization leads to hard cases falling into two categories:

1.Those existing in the penumbra or rule fuzziness, where ambiguity and uncertainty prevail,
challenging straightforward interpretation and application of the rule.

2.The second kind of hard cases arises when rules fail to accurately reflect their intended
purpose, value, or background conditions, creating a tension between the language of the
rule and its underlying objectives, highlighting the complexity of aligning rule language with
its intended function.
Q16. (a)What distinguishes legal rules from rules of science, or rules of nature?
(b)What kinds and degree of normative pressure can legal rules apply, and where is
this normative pressure derived from?
Answer:
(a)Legal rules are normative, prescribing how people should behave, while rules of science
and nature are descriptive, explaining how things are or how they work.
● For example, a legal rule might require people to wear seatbelts while driving, while a
rule of nature might explain how gravity causes objects to fall towards the earth.

Legal rules are created by human beings, while rules of science and nature are discovered
through observation and analysis.
● For example, a legal rule might be created by a legislature or court, while a rule of
science might be discovered through a scientific experiment.

Legal rules are based on social norms and values, while rules of science and nature are
based on empirical evidence and logical reasoning.
● For example, a legal rule might prohibit discrimination based on race or gender, while
a rule of nature might explain how the human body functions.

(b)Legal rules apply normative pressure by requiring or prohibiting certain actions, and this
pressure is derived from the authority of the legal system.
● For example, a legal rule might require people to pay taxes, and the normative
pressure to comply with this rule comes from the authority of the government and the
legal system.

The normative pressure of legal rules varies depending on the specific rule and the context
in which it operates.
● For example, a criminal law prohibition against murder carries significant normative
pressure, as non-compliance can result in severe punishment, while a traffic law
requiring drivers to stop at red lights may carry less pressure, as non-compliance
may only result in a fine.

The normative pressure of legal rules is ultimately derived from societal acceptance and
recognition of the legal system's authority, which is based on factors such as the rule of law,
democratic legitimacy, and the effectiveness of the legal system in resolving disputes and
maintaining social order.
● For example, the normative pressure to comply with legal rules in a stable and
democratic society is generally higher than in a society with a weak legal system or a
history of authoritarian rule.

Legal rules can also derive normative pressure from their moral or ethical content, as some
legal rules reflect societal values and norms.
● For example, a legal rule prohibiting child labor might derive normative pressure from
societal values that prioritize the welfare of children.

The normative pressure of legal rules can also be based on practical considerations, such as
efficiency or effectiveness.
● For example, a legal rule requiring motorcyclists to wear helmets might be based on
the practical consideration that helmets can reduce the risk of head injuries in
accidents.
Q17. What types of justice does the Preamble to the Constitution of India identify as
constitutional goals? Provide examples of the manner in which each such type of
justice has been sought to be achieved in the Indian state. (250 words max)
Answer:

The Preamble to the Constitution of India outlines the country's commitment to achieving
social, economic, and political justice as its constitutional goals. These principles guide the
Indian state in its efforts to establish a just and equitable society.

Social Justice:
Social justice aims to ensure fair treatment of all individuals in society, regardless of their
caste, religion, gender, or other social factors. In India, affirmative action policies and
reservation systems have been implemented to promote social justice.
● For instance, the Indian Constitution mandates reserving a certain percentage of
government jobs and educational institutions for marginalized communities. This is
intended to provide equal opportunities and uplift these communities from historical
discrimination and marginalization.

Economic Justice:
Economic justice focuses on providing equal economic opportunities and resources to all
citizens. In India, policies such as minimum wage laws, land reforms, and welfare programs
have been implemented to reduce economic disparities and promote economic justice.
● For example, the Indian government has launched several welfare programs, such
as the National Rural Employment Guarantee Act (NREGA), which guarantees 100
days of employment to rural households, and the Mahatma Gandhi National Rural
Employment Guarantee Act (MGNREGA), which aims to provide a safety net to the
rural poor.

Political Justice:
Political justice emphasizes equal political rights and participation for all citizens. In India,
measures like universal adult franchise, free and fair elections, and the right to information
empower citizens politically and ensure equal participation in the democratic process.
● For instance, the Indian Constitution guarantees the right to vote to all citizens above
the age of 18, regardless of their caste, religion, gender, or other social factors. This
ensures that every citizen has an equal say in the democratic process and promotes
political justice.

These efforts reflect India's commitment to upholding the principles of justice, equality, and
liberty as outlined in its Constitution. By promoting social, economic, and political justice, the
Indian state aims to establish a just and equitable society where every citizen has an equal
opportunity to prosper and contribute to the country's growth and development.
Q18. Are all legal systems 'rule of law systems'? What distinguishes such a system
from a non-rule of law system?

Answer:

No, not all legal systems are rule of law systems. The distinction lies in the fact that rule of
law systems are characterized by the supremacy of law, equality of all citizens before the
law, and the authority of the law courts to test administrative action by the standard of
legality. In contrast, non-rule of law systems are characterized by the arbitrary use of power,
the absence of legal protection for citizens, and the lack of accountability for those in power

Rule of Law Legal System:

● All citizens and institutions within a country, state, or community are accountable to
the same laws, including lawmakers and leaders.
● The law is known and accessible.
● The law is general, clear, prospective, public and stable.
● No one is above the law, and it is characterized by the equality of all citizens before
the law, the supremacy of law, and the predictability and consistency of legal norms.
● The law is preeminent and can serve as a check against the abuse of power.
● The citizens can approach the High Court and the Supreme Court if the Executive or
the government abuses the power vested in it or if the action is mala fide.

Example:
India is an example of a rule of law system, where all citizens, including lawmakers, law
enforcement officials, and judges, are subject to the same laws. The Constitution is the
supreme law of the land, and all administrative actions are subject to judicial review

Non-Rule of Law System:

● Characterized by the arbitrary use of power, the absence of legal protection for
citizens, and the lack of accountability for those in power.
● The law may be used as a tool of political power, rather than as a means of ensuring
equality and protecting individual rights.
● The law is not applied equally to various groups, challenging the rule of law.
● Officials may exceed their powers without consequences.
● The law is not a check against the abuse of power and does not ensure equal
governance by the law
● The ruler is above the law.

Example:
North Korea is an example of a non-rule of law system, where the law is used as a tool of
political power rather than as a means of ensuring equality and protecting individual rights.
Q19. Assume you are a lawyer representing a client in an important matter before a
three-judge-bench of the Bombay High Court. You find two analogous judgments that
might help your arguments: one is a decision of a three-judge bench of the Kerala
High Court, and the other is a decision of a two-judge bench of the Calcutta High
Court.

Answer:

In the Indian legal system, the concepts of vertical and horizontal application determine the
binding nature of legal decisions across different levels of courts and benches.
The higher court’s judgement is binding on all courts below and all future courts. This
common law principle of precedence is called “Stare decisis”, which means “Let the
precedence be”.

Vertical application -This refers to the decisions made by a higher court being binding on
lower courts.
Horizontal application - At the same level of court, the hierarchy of bench strength, i.e.,
higher the strength, the higher it is in hierarchy. The court adheres to its own precedent.

● Persuasive Authority: Both the decision of a three-judge-bench of the Kerala High

Court and a two-judge-bench of the Calcutta High Court would provide persuasive
authority for arguments before the Bombay High Court. While neither would be
binding on the Bombay High Court, they can still be used to support legal arguments
and influence the court's decision-making process.

● Preference for Bench Strength: Ideally, in further research, one would prefer to
look for a decision of the Bombay High Court from a bench of three or more judges,
or a decision of the Supreme Court. A larger-bench decision of the same court or a
decision from a higher court like the Supreme Court carries more weight in terms of
authority and influence.

● Horizontal Application: The preference for a larger-bench decision within the same
court stems from the horizontal application of the doctrine of precedent. A decision of
a larger bench within the Bombay High Court would hold more authority than a
decision of a smaller or similar-sized bench within the same court.

● Vertical Application: Similarly, the vertical application of the doctrine of precedent

emphasizes the significance of decisions from higher courts. A decision of the
Supreme Court would have binding authority before the Bombay High Court, making
it a strong reference point for legal arguments

In summary, while decisions from other high courts can be valuable as persuasive authority,
the most impactful judgments for arguments before the Bombay High Court would come
from a larger bench within the same court or from the Supreme Court due to their binding
authority and higher level of legal precedence.
Q20. Explain the distribution of legislative powers between the Union and the States
under the Indian Constitution, as outlined in Article 246. Explain the concept of
territorial limits of legislative powers as outlined in Article 245.Discuss the
significance of Article 248, which deals with the Residuary Powers of Legislation.

Answer:

The distribution of legislative powers between the Union and the States in India is outlined in
Article 246 of the Constitution, which forms the basis of the legislative relations between the
center and the states. The Constitution divides the powers between the Union and the
States under three lists: the Union List, the State List, and the Concurrent List.

● The Union List includes subjects of national importance, such as defense, foreign
affairs, and taxation, where uniform laws are necessary for the smooth functioning of
the country.

● The State List includes subjects of local or state importance, such as public order,
jails, and agriculture, where state autonomy and decentralized governance are
emphasized.

● The Concurrent List includes subjects where both the Union and State legislatures
have the power to make laws, allowing for shared jurisdiction. In case of a conflict
between the Union and State legislatures in the Concurrent List, the Union
Parliament has supremacy.

Article 246 of the Indian Constitution is a fundamental provision that outlines the distribution
of legislative powers between the Union and the States, maintaining a delicate balance
between the central and state governments. This distribution of powers ensures a unified
nation while respecting the autonomy and diversity of the states, preventing duplication of
laws, and ensuring efficient governance.

Territorial Jurisdiction: Article 245 of the Indian Constitution deals with the territorial
distribution of legislative powers between the Union and the States. It provides that the
Union has the power to make laws for the whole or any part of the territory of India, while a
State Legislature may make laws for the whole or any part of the State to which it belongs.
This article establishes the territorial jurisdiction of both the Union and State legislatures,
ensuring that laws are made for the appropriate territorial extent.

Residuary Powers: Article 248 of the Indian Constitution deals with the residuary powers of
legislation. It states that Parliament has exclusive power to make any law with respect to any
matter not enumerated in the Concurrent List or State List. Such power shall include the
power of making any law imposing a tax not mentioned in either of those Lists.
Q21. Discuss the various ways in which a court can treat a previous judicial decision.
Explain the significance and implications of each approach, and how they impact the
development and application of legal precedent. (Doctrine of Precedent)

Answer:

The doctrine of precedent plays a fundamental role in shaping legal decisions by guiding
how courts treat previous judgments. Understanding the various approaches courts can take
towards precedent, such as approval, application, and overruling, is essential for maintaining
consistency and predictability in the legal system.

Approve: Higher courts may affirm that a lower court's decision was correctly made,
establishing it as good law. Lower courts often rely on these decisions when faced with
similar cases.

Apply: Courts can use the reasoning of a previous case in a current case, even if the facts
differ, known as "stare decisis." This ensures consistency in legal decisions and maintains
the principle that the same law should be applied to future cases with materially similar facts.

Follow: When material facts align, a court is bound to adhere to a previous decision,
maintaining consistency in the application of the law. Lower courts typically follow decisions
made by higher courts.

Distinguish: Courts may choose not to follow a previous decision if there are significant
differences in material facts. This approach acknowledges that the previous case remains
valid law but is not applicable due to distinct circumstances in the current case.

Disapprove: Higher courts can declare that a lower court's decision was incorrect, indicating
that the previous case is not good law. This does not explicitly overturn the decision but
highlights its flaws.

Doubt: Courts may express reservations about a previous decision without expressly
overruling it. This approach suggests that the decision may have been wrongly decided,
casting doubt on its validity.

Not Follow: A court can choose not to follow a previous decision from a court of similar
jurisdiction when faced with substantially similar material facts. This decision allows for
flexibility in legal interpretation.

Overrule: Courts have the authority to expressly overturn the legal principle established in a
previous decision by an inferior court. This action sets a new precedent that supersedes the
previous one.

Affirm: When a case is appealed to a higher court and the decision of the lower court is
upheld, it signifies that the lower court's decision was correct and remains good law.
Reverse: Conversely, when a case is appealed and the higher court determines that the
lower court's decision was incorrect, it reverses the decision, indicating that it is not a valid
legal precedent moving forward.

Supersede by Legislation: Under the doctrine of parliamentary supremacy, a court decision

may be overridden by legislation, emphasizing the legislative authority to modify or nullify
judicial decisions.

These are the various ways in which courts interact with and interpret previous legal
decisions, showcasing the complexity and importance of the doctrine of precedent in the
legal system.
Notes by Jayesh
Key notes from Course 1

Democracy
a form and a method of government whereby revolutionary
changes in the economic and social life of the people are
brought about without bloodshed’.

Without equality, liberty would produce the supremacy of

the few over the many. Equality without liberty would kill
individual initiative. Without fraternity, liberty and equality
could not become a natural course of things.

three basic modes of human association: coercion,

competition and cooperation

The Preamble of the Indian Constitution : Neither a source nor

a limit on Power.

Preamble is Over and Under Inclusive of the basic feature of

ths COI

1. Federalism and separation of power part of the COI is

not referred to in the Preamble.
2. Equality and Liberty are constitutional virtues which are
included in the preamble,
3. Fraternity though is a virtue which Preamble mentions
but the constitution doesn’t provide for.

The constituent Assembly – Significance of the Constituent

assembly in the making of the constitution through a truly
democratic process.

Deliberated for 3 years and finally the COI was enacted on

Nov 26 1949

Legal Systems
1. Religious Legal Systems –
a. Legislation through dieties and prophets
b. Judge Is also a religious person. ( Priest and judge
are the same)
 2. Secular Legal Systems
a. Made by human beings
b. Judge is different from the legislator ( Judicial
independence)

Differentiation between
1. Common Law
a. Laws from case laws rather than statute
b. US India, Colonies of UK etc,
2. Civil Law
a. Governed by statute and not by case precedence.
b. French colonies , Spain, LAtam etc

Legal Traditions and the different families

1. Common Law – Judge made law

2. Civil Law – Law of the Roman Empire . Systematic
coding of Statutory laws.
3. Socialist Law – Strives for Social , Economic and
political transformation of a society. Argued to be like
Civil Law
4. Religious law- No distinction between Sacred and
Secular.

*Stare Decisis – Binds the Judiciary in common law to follow

precedent.

Japanese Legal system

1. Diet
a. Upper house – the house of councilors
b. Lower house – the house of representatives
2. Cabinet - Prime minister & Council of ministers
3. Judiciary – Supreme court and lower courts.
Legal system is a hybrid of continental Civil Law, Ango
American concepts of law and Japanese Legal traditions. Best
available Laboratory for comparative legal study
Supreme Court
Chinese legal system
Apellate Lok Adalats
Shaped
Tribunals by State
the High
forming of the republic of China in 1949 all
Supreme,
Courts
previous existing laws repealed. High and
5 constitutional documents since the founding
District of PRC.
1949 Common program
Distrtict andand further 1954,Courts
1975, 1978 and
1982
Administrativ Sub -District Specialised
e Tribunals Courts courts –
With opening Civil up of the economy Criminnal emphasisFamily,
on CBI,
developing a
District Judge Sessions Judge
legal structure was given.
(Additional District (Additional Sessions Rent
Judge) Judge)
Tried westernizing
Civil Judge ( Sr the Judicial
legalMagistrate
structureClass but
controller
the influence of the
Chinese legal tradition didn’t
Division)
Civil Judge ( Jr Division
Iwane.
(Chief and Additional
Judicial Magistrates)
Judicial Magistrate
Learning the Handan Style of Walking – Trying to
ClassII

inculcate the western legal systems without the spirit of the

Executive Gram
same and losing the legal tradition of chinas own
Magistrate Nyayalays
Different Environment grows different oranges. – The
same applies for Legal transplantation as what applies to the
west doesn’t apply to china.

The Indian Legal System

1. Historically India Had multiple legal traditions.

2. British Colonaliasm has had a major influence on Indian
Legal System
3. British colonizers introduced the common Law system to
india without referring to the prevailing legal practices in
India and neither was it an exact appropriation of the
Common Law system
4. This causes a gap between practices and the state legal
system
5. People prefer non state legal practices over the state legal
system for the following reasons.
1. The division of society into castes and the legal
tradition which prevails in each group
2. Familiarity with the local legal tradition
3. Awareness and Accessibility and cost of the State
legal system

India Creates local level bodies for settlement of disputes.

1. Panchayat system which follows legal tradition.
2. Legally not binding and can be questioned in the state
legal system.
3. But effective in settling disputes at the community level.

Gender Equality and Articles 14,15,16,19 & 21

Indian Legal systems recognition of binary genders/biological
test
Article 14 refers to Person , Article 15 & 19 refers to Citizen
and Article 21 refers to person again and hence the COI
doesn’t have a bias.

Refer to Transgender persons ( Protection of Rights ) Act

 2019.
Challenge PIL by CLPR representing Grace Banu, Vyjayanti
Vasanta Mogli, KMV Monalisa, Anindya Hajra and Sirra
Santosh who are members of the transgender community

The constitution

a. In the Indian context the constitution is above all.

b. Legislative can amend the COI but that’s subject to
Judicial review and that ensures it is as laid out under the
constitution.

The SC Jurisdiction
a. Jurisdiction of the SC – highest court of the land
b. Original Jurisdiction – In matters of state vs Union the
SC is the court of first instance.
c. Civil Apellate juridistion – On civil matters once the HC
certifies that the case is a fit one
d. Criminal Apellate Jurisdiction – Criminal jurisdiction
over appeals with a certificate from the HC
e. Constitutional Jurisdiction – Constitutional questions that
are considered important by the HC. (Article 132)
f. Special Leave Jurisdiction – SC can grant special leave to
any case arising from any tribunal or court arising from
the Territory of India regardless of HC certificate
g. Writ Jurisdiction – Role of Guardian of fundamental
Gov:t Business/Legislative
rights.
Business
Question Hour 12PM
1PM
LS till 6 PM
The HC Jurisdiction
2PM 1PM
3PM 1PM
4PM 1PM
5PM 1PM
6PM 1PM

3omz 2PM
3omz 2PM
3omz 2PM

3omz 2PM

11AM

1. Chief courts of the states conferred with powers by the

Zero Hour

COI and its statutes RS till 5 PM

Represent
People

2. Power to superintendence , direct and control subordinate

courts
Subordinate courts Make Laws/Pass Budgets
1. District courts and session courts handle civil and
criminal matters
2. Subordinate courts below DC and Sessions courts are
either civil or criminal.
3. District courts appellate work through original
Tribunals
1. Tribunals set up for specific purposes ( eg: Tax Apellate
triubunal)
2. Uptill the high court the Tribunals can decide.
3. Except for in some cases the HC can take up an appeal
on the decisionof the tribunal and the in all cases the SC
 can take up

Classification of Laws
1. Public Law – Laws which affect which regulate the
relation between individual and state
2. Private Law – Regulating interaction between individuals

3. Civil Law – Deals with matters affecting one or a few

individuals.
4. Criminal Law – Deals with wrongs that affect the whole
society

1. Substantive Laws – clarifying rights and wrongs, duties ,

obligations punishments
2. Procedural laws – The procedure to be followed as part
of the judicial process.

Judiciary

Colonial context leaves a concentration power and a lack of

separation. ( Eg: District Magistrate, Judge Jury and
executioner during colonial times)

Courts of Record
1. HC
2. SC
The judicial System coordinates between its different levels
through 3 things

1. Stare Decisis – Principle of precedent

2. The system of Appeal
3. Administrative control
Indian Judiciary according to Legal scholars is Top Heavy.

Heirarchy of courts
1. Vertical Heirarchy SC>HC>District Courts>Sessions
courts
2. A Higher bench strength is binding on a lower bench
strength
3. A coordinate bench is also binding on the later one. (
typically on Ratio)
A new state being formed will have the previous high courts
judgements as precedent .
Roster
A type of case based on subject matter is allocated to a
particular bench and this is called a roster.

Types of benches
1. 2 judge Bench – Division bench
2. 3 judge bench – Full bench
3. 5 judge and more – Constitutional benches ( High courts
and SC only)

Conflicting Judgements
Between two high courts are not binding on either.
And a third high court can take both for pursuasiuve value.

Heirarchy of Courts
The Indian Legislature

Head Lok Sabha Rajya Sabha

Definition Lower house of Parliament Upper house of parliament or council of
states
Elgibility for MP 25 years & Citizen of India 30 Years & Citizen of India
Composition 545 Members 245 Members
543 Elected 233 elected through an Electoral college
2 From Anglo Indian Community of States
nominated by president 12 nominated by the president from
different Fields
Tenure 5 years Permanent body . Tenure of each
If dissolved or on resignation member to be 6 years.
fresh election is required 1/3rd of the strength retires each year
Election Elected directly by citizens who Elected through indirect Elections
have completed 18 years of age. Representatives of Each State/UT are
Each MP represents a territorial elected through an Electoral College
constituency
Chairperson Speaker & Deputy Speaker Chairman & Deputy Chairman
Elected from Members of Lok Chairman – VP of India
Sabha Deputy Chairman is elected from house
Special Functions 1. Motion of No 1. Subjects in the state list. Can
Confidence- Only can be declare subjects in the state list
initiated in LS. If passed as that of National interest.
by Majority Vote Prime 2. RS is responsible of AIS ( IAS,
minister and Council of IPS, IFS etc)
ministers have to resign. 3. Emergency powers if LS is
2. Money Bills – Introduced dissolved before or after
in LS and on passing Sent declaration of Emergency RS
to RS . 14 days for RS to becomes Sole defector or De
come back with proposed Jure Parliament
changes if any. LS free to
reject changes proposed
by RS.
Absence of Speaker can nominate a The Chairman ( VP ) can
Speaker/Dpty panel of upto 10 chairmen nominate upto 6 Vice Chairmens
Spkt in LS and from the LS who can who can preside over the House
VP & Dpty preside over the house in in absence of Chairman/VC
Chairman in RS absence of the speaker or
the Dpty Spkr

Parliament Meetings

1. Budget Session – Feb to May

2. Monsoon Session - July – Aug
3. Winter Session - Nov to Dec

Not more than 6 months allowed between Parliament

sessions
What happens in Parliament

Who Decides What happens in Parliament

Business Advisary committee of Each house decides.

At the beginning of each Parliament session the Ministry of

Parliamentary Affairs releases a list of bills that will be
introduced in Parliament which needs to be passed. The
Business advisory committee based on the government
requirement prepares a report and the same is approved by
Speaker.
Ministry of Parliamentary affairs moves a motion to approve
the order of business and then it is available as a bulletin.

Time allocated to Private Member Business is made on the

recommendations of the Committee of Private Member
Bills and Resolutions. Every Friday is reserved for Private
Member business.

MP’s need to put their name on the list to be part of the

debate either through the party or directly with the speaker.
Speaker regulates all debates.

Maiden Speech: When an MP speaks in Parliament for the

first time he/she is allocated 30 minutes and is not regulated
by the spealer.

MP’s can speak in 14 languages other than English and Hindi

and the simultaneous interpretation system equips anyone to
listen to these speeches made in all languages to English or
Hindi.
Parliamentary interpreters provide interpretation of
proceedings.

Leader of the House.

PM who is the leader of the Majority party is the Leader of

the house in which he is a member.
Seniormost minister from the other house is appointed the
leader of the other house by the PM.

Leader of House responsible for directing the business of the

house. Sits in ythe first seat in the chamber.

Leader of Opposition.

Sits in the front row left of the chair.

Whip

Keeps member of the party within sound of the division bell

when important business is in consideration in the house.
The notices that each party Whip sends to the members
intimating them on when important divisions are expected are
also known as whips.

Minister of Parliamentary affairs and Minister of state for

Parliamentary affairs are known as a chief whips for the
government party in both houses.

MP’s are paid Rs 50k Per month and Daily allowance of INR
2000/- as of 2009.

Parliamentary procedure.

Introducing Legislature.
Non Ministers are known as Private Members . Private
members can raise an issue through the introduction of a
Private member bill in Parliament
Last private Member Bill passed in parliament was in 1970.
1. One Month notice to be given to introduce Private
Member Bills.
2. Submit a copy of the bill with the objects and reasons.
3. Speaker/Chairmen may revise statement of objects and
reason,.
4. If the bill cannot be introduced without the
recommendation of the president the same has to be
attached to the notice conveyed through a minister.

Non legislative participation.

1. Matters related to own constituency or general in nature
but doesn’t need an answer from the minister.
2. Matters which need a response from the minister can be
raised . Rule 193 discussions. Matters of general concern
where other MP’s can participate.
3. Some non legislative business raised might require a
final vote while others needn’t have.

Types of questions and notice periods in parliament

1. Starred /Unstarred questions – Qwuestions asked of the

government . Starred requires verbal answer and
unstarred written answr from the minister concerned.
Notice period LS-10-21 days., RS 15 days. (LS: 20
starred per day, 230 unstarred per day overall. RS 175
per day including 20 starred and 15 related to state s
under presidents rule)
2. Short notice Questions – Matters of public importance .
LS – Less than 10 days. RS – Less than 15 days. ( 1
per day in either house)
3. Rule 377/ Urgent public importance. LS Any time during
the week . Expires in the week. RS – One day before. ( 7
per day in either house)
4. Calling attention / LS: Rule 197 RS: Rule 180– Calling
the attention of a minister to any specific issue. LS& RS :
any time during the week and lapses at end of week. (
LS: 2 nmatters in each sitting RS: one matter in each
sitting)
5. Short Duration discussion ( LS: Rule 193 & 191, RS:
Rule 176 ) : any time. LS: 2 per sitting, RS not specified.
6. Half an hour discussion : On a matter of sufficient public
importance on which a written or Oral question has been
 raised. Notice 3 days. Numbers: upto half an hour on 3
sittings in a week to be permitted RS: not specified.
Ballot for 2 notices.
7. Private member resolution- Brought by any member
other than a minister and submitted to vote by a council.
Notice : 2 days before ballot. Frequency: LS3 for each
day allotted to private members. RS : not specified. In
both houses resolution or amendment cannot be moved
on the same for aperiod of 1 year.
8. Adjournment motions. 50 member support . To seek
adjournment of the business of the house to discuss a
matter of definite public importance.

Enactment of a law stepwise.

1. First Reading
a. Leave to introduce Bill.Draft Law, Public Feedback.
b. Cabinet Approval.
c. Introduced in Either house of parliament ( Money
bills only in LS)
d. Publishing in gazette.
e. Referred to standing committee
f. Withdraw or Amend
2. Second Reading.
a. Principal Level Discussion First Stage
b. Referred to Select/Joint Committee
c. Ad taken out and feedback. Taken from
Public/States
d. Clause by Clause Discussion – Amendments
proposed.
3. Third Reading.
a. Clause by clause discussion and amendments voted.
b. Vote on bill.
4. Process Repeated in the other House
5. Presidential assent
6. Gazette notification.
7. Rules and regulations framed.

What is a bill.

Draft of a Legislative proposal

Minister introduced – Government bill.
MP Introduced – Private member bill.

Citizens participation in a bill.

 When referred to standing committee, the committee places
an ad inviting public comments from individuals and
organizations. The standing committee then invites the
individual and organisations for a meeting to meet the
members top understand the issues with the bill better.

Committees
STANDING COMMITEES
1. FINANCIAL COMMITTEES ( Committee on
estimates, Publiuc undertakings & Public accounts)–
Exclusively under Lok Sabha Secretariat. Minister not
member.
a. Estimates committee examines estimates under
ministries. 30 members from LS.
b. PUC – Functioning of public undertakings. 22
members with 15 from LS and 7 from RS
c. PAC - Scrutinises statement of accounts showing
sums granted by govt for expenditure of the
government. 22 members with 15 from LS and 7
from RS
2. Departmentally related Standing committee –
Oversees each ministry . Minister is not a member.
a. 24 DRSC’s
b. Each DRSC has 31 members 21 from LS and 10
Principal District and Sessions Judge Pathanamthitta
from RS. Seats allocated to parties basis strength
in LS and RS.
Addl District Court
1(Addl MACT) 3. Other
Addl District Court
2(Addl MACT) standing
Addl District Court
3(Addl MACT) committees
Addl District Court
4(Addl MACT) – (Business
MACT
Pathanamthitta Advisory
Family Court
Pathanamthitta
Pathanamthitta Pathanamthitta Pathanamthitta Pathanamthitta
committee, Committee on petitions, subordinate
legislations and gov:t assurances, Committees on
salaries and allowances for MP’s and other offices
Chief Judicial District Legal of
Magistrate’s Court Services Authority
profit)
b Court Sub Court
namthitta Thiruvalla Pathanamthitta Pathanamthitta

a. LS has 16 and RS has 12 such committees.

b. Number of members vary from 26 to 7.
Munsiffs Court Munsiffs Court Munsiffs Court
Judicial First Class
Magistrate Court 1
Paathanamthitta
c. Minister not a member of committees on Women
Judicial First Class
Magistrate Court
Thiruvalla
Judicial First Class
Magistrate Court
Adoor
Judicial First Class
Magistrate Court
Ranni
Judicial First Class
Magistrate Court 2
Paathanamthitta
Pathanamthitta Adoor Thiruvalla

empowerment, govt assurances and subordinate

legislation, petitions, Welfare of SC/ST’s
d. Joint committees include members from RS and LS
and have 15 members with a term of 1 year.

AD HOC COMMITTES
Committees on Ethics, MPLADS, Provision of computers
to LS members, Joint committess of Waqf, Railway
convention , Fertiliser pricing etc.
1. Appointed for special purpose and dissolved after task is
done. Eg: Forest conservation Bill Committee
 2. Includes Select and Joint committees.

Union Budget

How money will be raised and how it will be spent. Union

Finance minister presents the same.
This statement is called the Union Budget

What happens in the Budget session of Parliament

Week1
1. Presidents address
2. Economic Survey of India
3. Railway Budget
4. Union Budget
First half of session
1. Discussion on presidents Address, Railway budget
and Union Budget.
2. Demands for Grants for ministriesTabled in
Parliament
Recess
1. Standing committee examines demands for grants for
each ministry
Second half of session.
1. Lok Sabha- Discussion and Voting on demand for
Grants.
2. Rajya Sabha – Discussion on working of Ministries.

Public Participation
1. Pre Legislative Scrutiny
a. Laws initiated by Civil Society Groups
b. Draft Bill – Published for Comments from the
public.
c. Comments before Drafting of a bill
2. Lesgilative Scrutiny
a. Standing commmittees
b. Standing committees invite opinion from public and
state as well.
3. Post Legislative Scrutiny
a. Law commission. Can come in the Pre legislative
Stage as well.

Elections as a feedback mechanism

Civil society organisations: Advocacy and Lobbying. (
Whats the difference between the two?)
Warldron Models of Law making

1. Partisan model – The members of the law making

reprsenatative is more interested in pushing the party
agenda
a. Farm Bills
b. GST etc
2. Neutral Model – Member representative is looking at
pushing the agenda which benefits the larger community
rather than towing a party line.
a. Womens reservation bill
b. Changes to Criminal laws after Nirbhaya incident
The Neutral model portrays politics not as a brute
struggle between factions but as an ongoing debate in the
nation about the shape of its social, economic, and political
framework.

Law

Law is the broader term or category.

Forms of law.

Acts – Law which is emanating from the legislature . Can be

referred to as Statute or Legislation

Bill – Is the draft of the act

Types of Bills.
Government Bills
1. Original Bills – New Ideas, New proposals , New
policies
2. Amending Bills- Modify Amend or change an existing
legislature.
3. Consolidating bills- Take multiple laws and consolidate
them into one larger one.
4. Expiring Bills – Renewing laws which are expiring
owing to sunset clauses . Eg: Covid Specific Legislation.
5. Repealing bill – To remove a law which is in force
owing to multitude of reasons.
6. Bills to Replace Ordinances - Form of law passed by
the executive when parliament is not in session needs to
be replaced by the law as a formal legislation.
 7. Constitition Amendment Bills - Amending the
constiutution.
8. Money Bills/Finance Bills - all bills around Finances (
art 110 & 117)

Private member bills. Eg: Rights for Transgenders were

originally introduced as a private member bill. Later it was
introduced as a government Bill and subsequently got passed.

At the state Level it is similar except that there are no two

houses and only one.
The governor has to give his assent for the state legislations as
against the President in the case of the Union Legislations.

December 16 Divya Deviah

th

How to Read legislations.

“Ignorance of Law is not a defence”

Structure of a Legislation

Primary Sources to search for legislation

Secondary Sources to read about legislations

Legislations have a uniform structure while Judgements might

not have a uniform structure

Gazette is only a confirmation of a long deliberative

democratic purpose. It is therefore the final outcome whichis
binding on every Indian Citizen.

The only way to change a legislation is to go through the

election process and get the MP’s to repeal or amend the
legislation where the public thinks it is wrong.

At the time of the Legislation being made the legislatures or

committees cannot imagine or contemplate all of the ways in
which the law will be applied. Hence the executive is given
“Rule Making power “ to enact or execute provisions in the
legislation to create set of rules for easy interpretation. These
rules though will be lower in the hierarchy as it is not made
by the legislature but only by the executive for ease of
interpretation and execution.

Reading a Legislation

First Stage – Who am I?

1. Who am I? – Am I a legislator, Executer, General public
etc?
2. What stage of the process am I in?
3. What am I Trying to do?
Second step – Understand the statute
1. When the legislation or stature came into force?
2. What period of time The statute applies? ( some acts
have limited or specified time period)
3. Jurisdiction - Duration and Geographical extent of the
statute/Legislation.(Jurisdicton is Not geographical
extent alone Eg: Foreign Marriages act. )
Body of the Legislation
1. Understand the meaning of the statutory words in the
legislation. To understand Authority , Differentiate
between people and authority etc.
a. Internal Aids – Rules which are laid in the body of
the act.The legislation says the particular section
needs to be read with a particular section of the
IEA. Eg: Foreign Marriage Act which needs to be
read with
b. External Aids –
i. Constitution , Procedural codes like CPC,
CRPC, IEA etc.
ii. General Clauses Act.- Provides meanings and
definition
iii. International Treaties
References in the Act
1. Within the Act
2. To Other Acts.
3. Purpose of the act- Whats the act itself saying?

Two Major Kinds of Interpretation of Legislation

1. Literal Interpretation
2. Purposive Interpretation.

Parts of a legislation

1. Title - The Primary site that unifies the purpose of the

Act.
 a. Eg: Surragocy
b. Long Title is prefixed with the act
c. Short Title is embodied in the first section of the
act itself.
2. Preamble – It is the next site of the purpose. It explains
for what reason the act has been enacted. ( Moving out of
the practice of using Preambles as preamble is not
required if the act is able to clearly articulate what the
parliament seeks to do in the substantive sections of the
law). Cannot be enforced in courts.

Eg: Indian Succession Act 1925 ( 39 of 1925): Short Title

in SI ( Statutory Instrument ) of the act.

“An Act to consolidate the law applicable to Intestate and

Testamentary Succession” ( Long Title

Preamble “whereas it is expedient to consolidate the law

applicable to intestate and testamentary succession”

3. Enacting Formula
a. That part of the act that Declares the authority of the
law
b. Goes back to the 15 Century Britain . Enacting
th

formulas give a sense of the relation between the

monarch and the parliament .
c. Recognition of combined authority of both the
monarch and the parliament
Body of the Enactment
Every section in the law has a section title
4. Extent clause – Extent of application of a particular law.
( How Far or to what extent )
5. Commencement Clause – When the law comes into
force. Either with the publication in the Gazette or date
specififed in the commencement clause
6. Interpretation and Definition Clause Central site–
Give clarity and definition to the words with particular
meaning to the point of the act, in the process of drafting
the Law so that these words cannot be interpreted in any
way other than intended by the legislators.
Eg: Parsi Marriage Act . The word Husband is used
only to mean a Parsi Husband
If the Interpretation and Definition Clause is
missing in a particular legislation then we go to
the general clauses act
 Substantive Versus Procedural
Substantive Law – What is the substance of the rules
that the parliament is trying to lay down.
Procedural Law – Lays down the procedure of trial in
the legislation. The procedural part may be part of the
legislation or has to be derived from IE Act , CRPC,
CPC

Locus Standi – Whats your standing in the law. Who

can come and ask for relief in the case of a particular law
eg: Only the spouses in a marriage can claim a grievance
under the marriage act.

7. Duration clause: Statutes with duration specified has the

duration clause embodies as one of the sub clauses in the
first clause of the bill
8. Rule Making Clause : Provisions delegating to the
executive rule making power. The rules that the
executive makes also needs an assent from the
parliament.
9. Repeal & Savings Clause :
a. Repeal will define to what extend do the previous
laws apply to the question the new legislation is
covering.
b. Savings clause defines which are the sections in
existing laws which will stand in spite of the new
legislation.

Helps with the transition from an old legal regime

on the Question that is being addressed to a New
Legal Regime.

10. Schedules to the Act – Typically an appendix which

could have list of geographies, Meanings , Categories
etc.
11. Statement of Objects and Reason – Introduction
which makes it clear and Transparent to the purpose of
the bill(Not the Act). Doesn’t stand in the court.
12. Notes on Clauses : Elucidatory notes to outline the
basis on which the particular clauses of the bill have been
framed.
13. Memorandum regarding delegated Legislation : All
acts which have delegation provisioned needs to have
this section explaining the proposal.
14. Annexure: sections that are sought to be amended are
Appended to every amending bill

Publication is very central to a law.

General Clauses Act

Also called the draftsmans Act or the Judges

Reference Book

Law makers cannot foresee all the possible applications

of a law when it is being drafted and hence sometimes
words are not defined in the context of the legislation. In
such cases the General clauses act comes to be the
reference point.

Terms
And/OR: And means a conjunctive list of items all of
which needs to be satisfied.
Or creates a disjunctive list which means any one of the
conditions need to be satisfied for the sufficiency.

May V Shall : Shall makes it mandatory while may

leaves it to the discretion of the individual
Unless Except: Signifies an exception in the rule/statute

Subject to/ Within the meaning of /For the purpose of

: Limits the scope of the statute. Or may indicate that
certain sections in the statute is controlled/Limited by
another section of the statute.

If Then / Upon / Before/After: Conditionality of the

statute as defined

Notwithstanding : In Spite of . Signifies that a particular

section will not be controlled by another section in spite
of the other section defining certain parts which ideally
should be applied.

Each/Only Every/Any/All: Limiting the class of objects

which need to be included or excluded in the statute.

Interpretation of a legislation
 What do we do with rules?

Where to find the rationale or the legislative intent of a

particular law?

1. Preamble of the act

2. Statement of objects and reasons
3. Looking at Parliamentary committee reports and
Legislative Debates

Language of the Rule

Protasis – The condition when the rule applies

Apodasis – The prescriptive part of the rule when the said
condition applies.

Sanction : Another Key component which operates when the

apodasis is not met.
Sanction can be apodasis of another rule where the apodasis
of the previous one becomes the protasis of.

Exceptions : Exceptions can be prescribed in the rule itself

The Exceptions can be part of the conditionality of the rule in

the original formulation of the rule or it can be added as a
separate rule like mentioned in the Sanction.

Difference between May and Shall/Should

Shall/Should : Mandatory prescriptions in the rule.

May: Discretionary prescription in the rule.

The Executive

Article 53 of the COI : Executive Power of the Union is

vested in the President of India and shall be exercised by him
either directly or through officers subordinate to him in
accordance with this constitution.

Nothing in this law shall prevent the parliament from by law

conferring functions on authorities other than the president.

Art. 73. Extent of executive Power of the Union. Subject to

the provisions of this constitutionthe power of the union shall
extend.
a. To the matters WRT which the parliament has
power to make laws.
b. To the exercise of such rights authority and
jurisdiction as exercisable by the GOI by virtue of
any treaty or agreement.
Art. 74.Council of ministers to aid and advice the
President . There shall be a council of ministers headed by
the PM to aid and advice the president who shall in the
exercvise of his functions act in accordance with this advice.

Art 154. Executive power of the state: Vested in the

governer and shall be exercised by him or his subordinates in
accordance with the constitution.

Nothing in the article shall prevent the parliament or the state

legislature from conferring by law functions on any authority
subordinate to the Governer.

Art 162. Extent of executive Power of the state: Subject to

the provisions of the COI the executive power of the state
shall extend to the matters to which the legislature has power
to make laws. Provided that in any matter wrt which the state
legislature or the Parliament has power to make laws, the
executive power of the state shall be subject to and limited by
the executive power conferred by the COI or by law made by
the parliament upon the union or the authorities thereof.

Art 163. Council of ministers to aid and advice the

Governer there shall be a council of ministers headed by the
Chief minister to aid and advice the governer in the exercise
of his functions except in so far as he is by or under this
constitution is required to exercise his functions or any of
them in discretion.

The executive powers of the union or the state is not

exhaustively listed and the defined. The residual functions
that remain after legislative and judicial functions are taken
away is what can be defined as the exevutive function and
executive powers.
 The Executive

GOI/Union Govt/Central Govt

Prime Minister
Ministries and Departments
Each ministry Headed by a Cabinet Minster assisted by
Minister of state and Parliamentary Secretaries ( All
are MP’s)
Each Department is headed by a Secretary of the
department ( IAS Officer)
Cabinet Secretary – Cabinet Secretariat
1. Cordinates between the different ministries
2. Secretary of the Union Cabinet and heads the IAS
services .

PMO
1. Assists the PM
2. Consists of Civil servants and Political Appointees

State Governments – Similar stricture to the Union

Government
State Govts have multiple departments and they are not
called ministries.
Departments are Headed by Ministers at the political
level
Secretary for the Departments are usually IAS Officers
Not aligned to the Union Ministries.
Cabinet Se retary equivalent at the state level is the Chief
Secretary.

Union Territories
Similar in structure to the State Governments
Lesser Departments

Collective Responsibility : The Council of ministers is

collectively responsible to the Parliament No confidence
motion and the Question hour.

Central Regulatory Authorities – Denotes institutions

operating at arms length from the GOI , insulated from
the day to day political pressures and operating with
technical expertise
 Authority Enactment Function Ministry
Agricultural and processed food
Agricultural and Processed Food products export development Export promotion of Processed food
1 Products Export Development Aurthorty authoruty Act and Agri products Ministry of commerce and Industry
Airport Authorities of India Act Tareiffs , Development of airports and
2 Airport Authorities of India 1994 quality and reliability of servcies\ Ministry of Civil Aviation
Development and management of
Domestic and Intl airports and Cargo
3 Airports Regulatory Authority of India Act 2008 terminals Ministry of Civil Aviation
Safety, Regulatory requirements
guidelines and std of construction of
4 Atomic Energy Regulatory Board Atomic Energy Act 1962 nuclear facilities Department of Atomic Energy
Central Drugs Standard Control Approval , Import , Standards cordinate
5 Organisation Drugs and Cosmetics Act 1940 with State Organisations Ministry of Health and Family Welfare
Water ( Prevention and Control of
6 Central Pollution Control Board Pollution) Act 1974 Water pollution Ministry of Environment and Forests
7 Coal Regulatory Authority Ministry of Coal Resolution Policies, Pricing of the sector Ministry of Coal
8 Coastal Aquaculture authorty Act 2005 Aquaculture farms Ministry of Agriculture
9 Competition commission of India Competition Act 2002 Consumer protection and fair trade Ministry of Company Affairs
Registration of Aircrafts, Safety
10 Director General of Civil Aviation Aircraft Act 1934 standards , Pilot Licensing etc Ministry of Civil Aviation
Government of India Resolution Exploration, Tech and Fin evalutaion,
11 Director General of Hydrocarbons 1993 Field surveys etc Ministry of Petroleum and Natural Gas
Safety of food and regulation os
Food Safety and Standards Authorty of Food Saftey and standards Act manufacturing , import and sale
12 India 2006 thereof Ministry of Food and Processing Industries
Forward Contracts Regulation Act
13 Forward Markets Commission 1952 Regulating Forward Markets Ministry of Finance
Inland Waterways development for
14 Inland Waterways Authorty of India Act 1985 shipping and navigaton Ministry of Shipping
Insurance Regulatory and Development
15 authority Act 1999 All matters insurance Ministry of Finance
National Disaster management
16 Authority Disaster Management Act 2005 Policy, Plan , guidelines for states Ministry of Home Affairs
Policy for Housing Financing
17 National Housing Bank Act 1987 institutions under RBI Ministry of Finance
National Pharmaceutical Pricing
18 Authorty Drugs Prices control order 1995 Drug Price Control, Foresee Shortages Ministry of Chemicals and Fertilisers
Office of Controll;er of Certifying
19 Authorities IT Act 2000 Supervise Certifying Authorities Ministry of Communications and IT
Pension Fund Rgulatory and Promoting Old age Security ,
20 Development authority Act 2013 Protecting interests of subscribers Ministry of Finance
Petroleum and Natural Gas Regulatory Safety , Consumer interests and fair
21 Board Act 2006 trade and competition Ministry of Petroleum and Natural Gas
Issuing Bank Notes, Keeping reserves,
monetory stability, operate the
22 Reserve Bank of India Act 1934 currency and credit system Ministry of Finance
Investor interests, Regulating
23 Security and Exchange Board of India Act 1992 securities markets Ministry of Finance
Tariffs , Lease of properties etc for
major ports and private parties
24 Tariff Authority for major Ports The Major Port Trurts Act 1963 operating therein Ministry of Shipping

telecommunication services efficiency

25 Telecom Regulatory Authority of India Act 1997 and fair trade and competition Ministry of Communications and IT

Regulatory Tribunals
 Tribunal/ Authority Enactment Functional Area
Apellate Tribunal for Appeals against the orders of the adjudicating officeror the approprioate commission (
1 Electricity Electricity Act 2003 State/ Central) under the act
Apellate tribunal for Foreign
2 exchange Foreign Exchange management act 1999 Appeals Specified under the FEMA
To Allow NRI s and certain categories of redidents to ascertain income tax lianbility in
3 Authority for Advance Rulings Income Tax Act 1961 advance
Board for industrial and Sick Industrial companies ( Spevcial
4 Financial reconstruction proivisions) Act 1985 Timely detection of sick and potentially sick companies and provide remedial action
5 Company Law board Companies Act 1956 To carry out functions as said in the companies Act 1956
6 Copyright board Copyright Act 1957 To Hear on Copyright disputes
Customs Excise and Service
7 Tax Apellate Tribunal Customs Act 1962 Appeals specified under customs act 1962, Central Excise Act 1994 and Finance Act 1994
Appeals agains the orders made by the controller of an adjudicating officer appointed
8 Cyber Apellate Tribunal IT Act 2000 under the IT Act 2000
Debt Recovery apellate Recovery of debts due to banks and To entertain an ddecide on applications made by banks and financial institutions for debt
9 Tribunal Financial institutions Act 1993 recovery
Film Certification Apellate
10 Tribunal Cinematograph Act 1952 Appeals filed under Section 5Ciof the act agains the certification granted by the CBFC

11 Income Tax Apellate Tribunal Income Tax Act 1961 Appeals against orders passed by authorities as per the Income Tax Act 1961

Intellectual Property Apellate Appelas agains the order or decisions by the registrar pertaining to rectification of register
12 Board Trademarks Act 1999 ; Appeal from the Geographical indication of good Act 1999, and Patents Act 1970
National Company Law
Tribunal and National
company Law Apellate Carry out the functions of the companys law board and Board for Industrial and Financial
13 Tribunal Companies Act 2013 reconstructions
14 National Green Tribunal Natinal Green Tribunal Act 2010 Cases of Environmental Protection, conservation of forests and natural resources
securities and Exchange Board of India
15 securities apellate Tribunal Act 1992 Appeals against Orders passed by SEBI and the adjudicating officer under the ACT
Competition Apellate
16 Tribunal Competition Act 2002 Appeals against orders passed by the competition commissionof India

Telecom disputes settlement Telelecom regulatory authority of Idnia Adjudicate disputes between Licensor Licensee, service provide, Service providers and
17 and Apellate Tribunal Act 1997 consumers, and appeals against orders of TRAI

These tribunals perform Judicial Functions outside

the traditional Judiciary.

What is a leave petition??

What does it mean when special leave is given by the

SC??

Article 200 – Procedural aspect of assent to bills by the

governer for legislation passed by the State Legislative.

1. Assent to Bill
2. Withold assent and send back to Legislature for
reconsideration. ( Once passed again cannot be
withheld again)
3. Send to president for consultation.

https://www.scobserver.in/journal/supreme-court-asks-
why-the-tn-governor-needs-the-courts-intervention-to-
pass-bills-per-article-
200/#:~:text=Under%20Article%20200%20of%20the,be
%20sent%20back%20for%20reconsideration.

Why are there gaps in the interpretation of the legislation?

( According to HLA HART)

1. Lack of understanding of how the legislation can play

out in the future
 2. Relative indeterminacy of the aim of the legislation.

When there is a conflict or a lack of clarity in the rationale

of the rule is when we have to look at the definition of the
words in the legislation to get the clarity

General clauses ACT comes into the picture

Implemetation of Legislation- Carrying out of the basic

policy decisions, usually made under a statute or through an
executive order or court decisions.

1. Identify the problems to be addressed

2. Stipulate the objectives to be pursued
3. Structures the implementation process.

Steps in the process

1. Passing of the statute/ executive order/court decision
2. Policy decision of the implementing agencies
3. Compliance of the target groups which the statute is
intended for.
4. The actual impact – Intended and unintended
5. Percieved impact of the agency decisions
6. Revision of the basic statute

Delegated Legislation
Legislature laying down General outline of the scheme in a
statute and delegating the detailing of the statute to the
traditional executive or designated bodies. The legislation
made by the traditional executive or the designated bodies
is called Delegated Legislation

Need to be kept under check because

1. Can give arbitrary powers to the executive
2. The challenge of knowing the rules and sifting through
the ambiguity of the language
3. To prevent dictatorship by virtue of delegation becoming
too general

Forms of Delegated Legislations

1. Rules – Power delegated to the traditional Executive to
detail out a particular legislation and rules are made.
2. Regulations – when power is delegated to the non
traditional regulatory bodies constitutes under the
 statute the same are called regulation.
3. Bye Laws – How the authorities must conduct
themselves and not for Public
4. Notification – Normally used in the context of
conditional legislation
5. Directions – Are normally non mandatory and more
guidance value
6. Schemes – Enacting a particular program
7. Circulars – Explanatory in nature
8. Orders – Those come from adjudicating tribunals
Difference between Executive Tribunal or a judicial tribunal
will be determined by who are constituting the bodies (
whether it includes judges or constitute non judicial
executives)

Ordinance – Not a delegated Legislation

Ordinance is passed by the executive when the parliament is
not in session and is part of the powers conferred on the
executive. But ordinances need to be ratified by the
legislature when the parliament is back in session.

How to keep the Delegated Legislation in Check

1. Delegated Legislation cannot contradict the statute that
gives the executive or the regulatory body the power to
legislate.
2. Should not be unreasonable.
3. Statute and delegated legislation to have the same
meaning.
4. Both statute and delegated legislation are presumed to be
Valid.
5. Excessive delegation should not be done. Eg: Creating an
offence can only be done by the parliament and not
through delegated legislation.
6. Sub Delegation – If the central government has been
delegated to create the rules for a statute it can only
further delegate if the parent statute permits them to.
7. Quoting the wrong provision is fine as long as the power
is delegated somewhere else in the statute.

Procedural Rules
1. Draft to be published prior to the enactment of a
Delegated legislation
2. Date of publication is important for enactment of the
delegated legislation.
3. Some parent statutes call out for the delegated legislation
 be laid before parliament before enactment.
4. Requirement of consultation before rules are applicable.
5. Prior approval from the parliament mandated by certain
statutes for delegated legislation.

Jan 21 Session Meenakshi

st

Concept of Stare Decisis – As it stands. Precedent set in a

particular case will stand in a similar case later.

Precedent – Judge made law

There are 25 High Courts including Amravati for Andhra

Pradesh
No two high courts per state
Some UT’s and states do not have high courts
Eg: Mumbai High court – Goa + Daman & Diu

Some high courts have multiple benches

Eg: Mumbai – Mumbai and Aurangabad and Nagpur.

Clamour for multiple benches for SC as well.

Executive Magistrate – Executives of the government who

are doing multiple functions along with some administrative
adjudicating function. Eg: Revenue officers with power of
adjudication at district level

Jurisdiction
CRPC ( New Nyaya Samhita) Lays down which judge to be
approached for what kind of offences with what punishment.
For Civil Cases Each state has a Civil Courts act. Basis the
monetary limit there is a jurisdiction set for each type of
judge.

Federalism Vs state run Judiciary – A debate which is always

on .
Jurisdiction

Original Jurisdiction – At the first instance the respective

court can be approached for a resolution on the matter

Apellate Jurisdiction – In the first Instance one has to

approach a lower court and then appeal if we do not get the
desired outcome

Supreme Court
Original Jurisdiction : For matters between Union and States
and Between 2 states SC is the court of first instance ( Art
131)
Civil Apellate Jurisdiction SC can hear appeals in civil
matters that arise from the HC if the HC grants a certificate
that the case is a fit one. ( art 133)
Criminal Apellate Jurisdiction SC has criminal jurisdiction
over appeals that are accompanied by a certificate from the
HC( Art 134)
Constitutional Jurisdiction Constitutional questions that are
considered importrant by the HC can be tried by the SC ( Art
132)
Special Leave Jurisdiction SC vested with the power to
grant special leave to any case arising from any tribunal or
court throughout the territory of India regardless of its value
or high court certificate ( Art 136)
Writ Jurisdiction This is to protect the fundamental rights of
citizens (Art 32)
1. Haebeus Corpus – Court orders the person or authority
to produce a detained person in the court
2. Mandamus – Orders a public authority or individual to
perform a duty which they are bound to do but
 refusing to do.
3. Prohibition – Prohibits lower courts or Tribunals from
exceeding their jurisdiction
4. Certiorari – Ordering the lower court to either pass the
case to the higher court or to quash the order passed by
them in a case. Exceeding jurisdiction or error.
5. Quo Warranto – Questions appointment made to
public offices when it is in error.

High Courts

Chief courts of the states conferred with wide powers by

the COI and statutes

Chartered High Courts -Bombay , Madras, Kolkata &

Ahmedabad created for special charters by the British and
have distinct powers as compared to other high courts

High Courts Deal with both Civil and Criminal procedure

codes.
Writ power is vested with the High Courts as well. ( Art 226)
Superintendence , direction and control of lower courts in the
state (and UT as the case may be) are part of the role of the
HC
Mumbai, Kolkata , Madras the HC has original jurisdiction
for any case.

Unified SystemAll courts deal with both state and union laws
. ( Unlike other federal states like US)

Subordinate Courts
District and Session courts handle both Civil and Criminal
matters
Subordinate courts are split as Civil or Criminal.
District courts do appellate work.
Subordinate courts jurisdiction on criminal is also restricted.

Tribunals
Some matters coming under certain statutes are specifically
handled by Tribunals upto the high court and in some cases
upto the supreme court.
HC can be approached for an appeal on an order from a
tribunal in most cases
SC can be approached in all cases.
Roster System
Dedicate particular benches to deal with particular matters

Polyvocality
Different decisions coming from the same body owing to
multiple benches . Supreme Court is PolyVocal

Benches
Single Bench – 1 Judge
Division Bench – 2 Judges
Full Bench – 3 or more judges
Constitutional bench – 5 judges and more (Art 145 (3))

Art 228 – The HC can withdraw a case from a subordinate

clause when constitutional interpretation is required and
dispose it or determine the said question of law and pass it
back to the subordinate court for final resolution.

Multiple Judges – Different Opinions

1. Majority Opinion – if the majority of a bench have one
opinion it is called thus
2. Minority Opinion – The opinion of the judge with a
differing opinion is called thus
a. Dissenting Opinion – Same as Minority Opinion
b. Concurring Opinion – When the judgement is the
same but the reasoning is different it is called thus

Judicial system – Representational challenges

11.7 % women high court judges

Only 12% of sitting judges ( 4) is in the supreme court

11 high courts have no representatipon in the Supreme court

Muslim representation in the supreme court judges – 1
Muslim Judge since 1950 in the SC
1 Schedule caste SC Judge appointed in 1980
st

From 2010 to 2019 no representation of Scheduled Caste

How are the judge appointments made

High courts & SC

Elevation from the subordinate judiciary
Appoint from the practicing lawyers

Qualifications for Supreme court judges

1. At least a Huigh court Judge for 5 years
2. Practising advocate in the high court for at least 10 years
3. Distinguished jurist.

Qualification for HC judges

1. Practising advocate in the high court for 10 or more years
2. Judicial officers of the subordinate court for 10 or more
years.
3.
Who appoints
For HC – CJI + 2 seniormost judges from the SC + and Chief
Justice of the respective HC
For SC – CJI + 4 seniormost judges from the SC

NJAC Law and the striking down of the same as

unconstitutional.

The three judges case and how the collegium system in spite
of not being in the COI came into existence
Traditional view on Judiciary and the role of judges and its
problems.

The role of the judge is to interpret the word of the law

and apply it to the cases brought to him.
The law in itself is made by the parliament which is the
representative of the people.
The judge is not supposed to impose his own moral and
political preferences on the process.

We forget that
Judges while are not elected come from the same population
and will have moral and political views which will
inherently affect his judgements however he tries.
In the common law system a large part of the law is judge
made.
The judiciary is an independent body and it has been able to
chart its own course in the political system .

Judges being political

1. They are part of a political system in their lives
2. Their decision makes a difference in the allocation of
power liberty and resources in the society
 3. They could be involved in direct political interaction
with others
4. Judges could be biased inherently in one way or the other
.
5. They could be motivated by ideological and moral
beliefs
6. They could be motivated for selfish reasons of ambition
and power.

Covid 19 Orders Polticial activism of the judiciary

Should judges be Accountable?

Since Judiciary is an unelected body how do you hold them
accountable.

Source of Law Emerging from Courts

Elements of a case
A written Report of a dispute between legal persons which
contain
1. Who the parties were
2. The facts
3. The procedural steps
4. Decision or order of the judge
5. The reasoned justification for arriving at the decision.

Structure of a Case

1. Caption – Names of the parties to the Dispute

Appellant respondant petitioner defendant are terms used to
denote the parties. These terms vary based on the type of case
Civil suit – Plaintiff is the person who files the civil suit and
defendant is the person who it is filed against.
Criminal Case – Prosecution (government ) who is the party
who files the case and the defendant who it is filed against.
Writ Petition – Petitioner who files for the writ and the
respondent who it is filed against.

1. Type of dispute
2. Apellate Litigation – Plaintiff becomes the appellant
and the defendant becomes the respondent . Can be the
reverse also .
 2. Citation
Citation is an indication of how the case is reported in Law
reports ( Only HC and SC cases are reported in law reports).
Reference number with Page number etc.

3. Author of the Opinion

The person who is writing down the opinion on behalf of self
or on behalf of the entire bench. This will be prefixed by J.
Name which refers to Justice

4. Facts

1. Facts that led to the dispute in Question

2. Procedural History
In case of appellate litigation this will contain the history of
the case and judgements at all stages in different courts

5. Issues
Specific questions of Law and Facts that need to be dealt
with in the particular case.

6. Summary of Arguments : arguments of both parties

7. Principles of Law
What are the principles of law which will be applicable in the
case.
1. General Principles of law
2. Application of those laws on the facts in questions.

8. Final judgement – It is a judicial opinion

1. What is the judgement and final order considering
everything.
2. Concurring and Dissenting opinion.

Ratio :

Eg: Shakunthala Shukla Case

Jurisdiction : Criminal Apellate Jurisdiction

Author of the opinion: . M.R Shah J.

Reportable Cases have precedential value

Speaking and a non speaking judgement

When there are no reasons clarified for arriving at a
judgement then it is called non speaking judgement

Recusing : when a Judge has a vested interest in a particular

matter he/she can recuse himself from adjudicating the case.

Order Decision and Judgement

Decision : The conclusion that the judge arrives after
considering various aspects of facts and applicable laws. It
states the legal consequences including rights , duties,
liabilities and immunities applicable to the parties.
Order : The actual order is a part of the decision which states
the consequences .
Judgement : is the same as the decision.

Interim Order: Order given in the middle of the case till the
final decision is taken.

Law Reports

All India Law Reports

Supreme Court Cases
Manu Patra

Some are genuine some are more trustworthy

Law reports are not just the judgement . There is also notes
which is part of the law report on any particular judgements.

Neutral Citation : The Court itself gives a citation number is

called neutral Citation.

Quoting from a judgement : A Pin Point is the reference to a

particulat paragraph or page number in a judgement when
quoting from it.

Not all reports reach it to the Law reports.

Law reports include judgement s which have precedential
value.

Law reports report Judgements which

1. Introduce a new rule or new principle.
2. Materially modify an existing principle or rule.
3. Settle a question which the law is doubtful
4. Instructive judgements – eg:Shakunthala Shukla case on
 how a judgement has to be written

Why do we read a case.

Law commission: A Body set up to evaluate the legal frame

work and propose reforms .

Case note what all is included

Standard Elements
1. Facts
2. Questions
3. Answers
4. Outcome or results

First step for making case notes is to identify

1. Name of the case
2. Parties to the case
3. Neutral Citation or citation of the case and where to be
found in the law reports.
4. The court
5. Outcome.
Second step
1. Summary of the case. Subject to revision. Chronological
order
Third Step
1. Framing the issue or asking the legal question. Good
issue of law.
Final Step
Final decision.

Doctrine of Precedent

Doctrine Vs Practise
Vertical Application of Precedent – How to use the
precedent of a higher court.
Horizontal Application – Impact of single courts decision on
itself. Different benches of the same court.

Precedent applicable if
1. The case facts are analogous to current case
2. Earlier decision is by a court which has the authority to
make precedents
3. Earlier decision hasn’t been abrogated by a statute or
 another court which has the power to overrule.
In what cases are Precedents binding
1. If the precedent is from a superior Court
2. If it is from the same court then all factors considered it
is binding for the same bench strength .
3. If the precedent is from an inferior court then it is only
persuasive it is not binding.
4. Precedents from other jurisdiction is also not binding.

Precedent in Practice

How to distinguish a case

For an Advocate
1. Adverse – Distinguish the case by establishing.
a. The precedent involved the faulty interpretation of
other prior cases
b. Precedent is per incuriam without an understanding
of the facts of the particular binding statutes or
judicial authority
c. Precedent has been subsequently overruled by a
superior court
d. It is irreconcilable with prior or subsequent
decisions.
2. Neutral – Interpret the ratio in the best way suited for the
current case
3. Favorable – Use it

Secondary Techniques – Arguments ( Non Exhaustive)

1. Scope of the decision in the precedent is unclear
2. Reasoning of the court is weak
3. There are special considerations which are not present in
the current circumstances
4. Times have changed
5. Decision has been questioned by academic writers .

For Judges – Persuasive

Distinguishing a Case

Reversal Vs Overruling
Reversal – A case decided in favour of X in an appellate
court gets decided against X.

Overruling – When a superior court decides that a legal

principle applied by the subordinate court or smaller bench is
no longer valid and hence the decision doesn’t stand.

Per Incuriam Through lack of due regard for the law and
facts

Ratio Decidendi - That part of the case which is binding on

future cases
1. The rule of law explicitely stated by the judge as the
basis of the decision of the case, ie the answers to the
questions of law in the case
2. The reasons expicitely given by the judge for the
decision ie the explicit justification of the answers to the
questions which are being addressed by the case
3. The rule of law implicit in the reasoning of the judge in
justifying the decision in the case.
4. The reasons implicitely given by the judge to justify the
decision
5. The rule of law which the case is supposed to be an
authority on by an interpreter. The impuited answer to
the questions of law in the case and for future references.

a ratio decidendi is a ruling expressly or impliedly given by a

judge which is sufficient to settle a point of law put in issue
by the parties’ arguments in a case, being a point on which a
ruling was necessary to his justification (or one of his
alternative justifications) of the decision in the case’.

Ratio Can be Elusive

Versions of all the possible interpretations varying in the
narrowness of the ratio of a precedent will need to be
considered before setting forth the precedent in a current case.

Situation Sense x=x=x

X happened
If X Happens what does it mean in law
If X happened then Y is the implication in law.

Obitter Dictum– That part of the case which is the

supporting arguments in the judgement which is more
persuasive.
Session 1 Notes By Sangeeta Myles

Objective of Paper 1: Skills required for legal students to gain Foundational knowledge to study
law
Paper 1 is divided into 4 modules:
1) Rule and Rule systems
2) Indian legal system
3) Working with Rules
4) Areas/Branches of Law.

Module 1) Introduction to Rules and rules system :

What is a rule?

Not all rules are mandatory in nature.

Prescriptive part of the rules tell you what to do when the rule applies.
Ex: in the given situation: the rule applies when the traffic light turns read and it prescribes that
you should stop your car when it happens.

 Characteristics of a rule

1) Normative
2) General
3) Guide/Standard
4) Serve as a justification for human action.

Rules can be of different kinds:

Empirical/descriptive rules tell you how things are as they are, in reality.
Ex: Rule of gravity
Or a rule that tells you water boils at 100 degrees. (Scientific rules)
While normative/prescriptive rules tells you how things should/ ought to be/ideally. They are
aimed at altering behavior or promoting a specific type of behavior (as what should be the
norm). They care about the outcome of the rule, concerned about promoting good
behavior/action, including judgment of behavior.
Ex: Traffic rule

In this course we will only be dealing with normative/prescriptive rules

Permissive rules: they are permitting you to do certain things, if you want. They are not
compulsory. They give you power that you didn't already have before.
Ex: you can look at ppt before the class..you're permitted to do so but doesn't mean you have to
compulsorily do so.

Mandatory rules: that have to be compulsorily followed

Ex: 75 percent mandatory attendance rule

Guidance rules: which gives you some sort of guidance/criteria while taking certain decisions
Ex: A teacher considering attendance percentage to calculate internal marks for class students.

Prudential Rules: Rule of thumb

Ex. recipes or formulas that describe if you want to achieve outcome X you have to follow
historic/proven path Y. They are not concerned with the morality of the action. Ex: formula to
make nuclear bomb: the rules doesn't care if it's a good thing or a bad thing.

Rules that wants to maintain status quo:

Ex: Rules that tell you what not to do even when you're already not doing it.
Rules that regulated Cryptocurrency trading just like equities etc. People were told to adhere to
rules just like equity (maintain status quo) and not do illegal trading (which they hadn't started
doing yet)

Constitutive rules:
Related to creation of new behavior /conduct /some institution or regulatory body and give them
some powers.
Ex: ACT to create a new IIT/AIIMS

Regulatory rules:
Seeks to regulate existing structures/existing conduct.

Discretionary Rule
Generality in terms of its application..where are they applicable?

Elements of a rule.

Form of a rule means that they are based on certain principles and it can be of various type like
law/regulation/statute/ordinance/customary practice etc.
Ex: any rule of law should follow certain principles like it should be framed in unambiguous way
and that it should be made known to people who it applies to.

Content: language that is used to draft the rules that will tell you what type of rule it is.
(Normative/ mandatory/guidance/permissive)

Effect: is what happens when you don't follow the rule:

Ex: you'll be fined if you don't stop at red light.

Rationale: why the rule is made and for what reason:

Ex: Traffic rules are made so that accidents can be avoided and for road safety reasons.

Rule pervasiveness: Rules are everywhere.

Ex: in grammar, in any school or class, in traffic, in any game or sport.

Why do we follow rules:

Because it is good for us, moral reasons
It avoid chaos
To get certain outcomes
To escape punishment /sanctions
For the rationale


Normative pressure :
Pressure to follow the rule just because it is a rule without knowing or understanding it's
rationale.
The venn diagram shows that the intersection of the rationale/meaning of the rule along with the
fear of sanctions and the attitude of the people it is targeted to(addressee), determines if the
rule is going to be followed or not .

Ex: Antigone extract

Story: One sister wants to bury her brother who has been banned from being buried by the king
because he was a traitor. The other sister wants to abide by the rule and doesn't want to bury
her brother due to fear of the punishment (being stoned to death).
Thus the rule whether it is going to be followed or not depends on the attitude of the people it is
addressed to along with the rationale /meaning of the rule because it is unjust.

Session 2

Understanding rules :
What is a rule:
A general norm, mandating or guiding conduct or action In a given type of situation.
A ty a typical rule in this sense prescribes that in circumstances X, behaviour of type Y ought, or
not to be, or maybe, engaged in by persons of classes Z.
From twin and Myers reading:
-Normative : because it prescribes a norm
-General: concerned with types of behaviour and types of circumstances
Ex: A rule that says you can only play football in the park between 5-6pm..
Here playing football is the behaviour profuces or concerned with
and
The circumstances is 5-6pm in the park.
-Guides and serves as standards of behaviour
Ex: Someone plans to play football at 4pm but because of the rule they have to change their
plan because the rule guides their behaviour.
-Provides one justification for an action or decision.
Ex: Because of the rules you decided that you will play football between 5-6pm but because
there would be traffic, you decided that you will be starting at 5:15pm so what this means is
when taking any decision or action, rules provide one justification/reason but not the only
justification, there will always be other factors guiding your behaviour (ex traffic in this case).

[Image 1151.jpg]

The concept of core and the fringe was given by HLA Heart, a legal philosopher/theorist who
also brought legal positivism.
Recommended reading: Concept of law by HLA Heart.
Example of core and penumbra
Ex: A rule prohibits entry of vehicles in the park.
Now the core of the rule would be everything that we can derive straightforward from this rule
like we will all agree that trucks and cars would not be allowed in the park which is the core of
the rule.
But then what about wheelchairs and baby strollers? That's where confusion/fuzziness/debate
starts. Are they vehicles? This is where lawyers and judges come in. The rule applicability is
mostly based on previous implementation unless certain entirely new factors come in : example
drones in this case..
To explore that we need to find two things
Definition of vehicle under the rule: Vehicle could be defined anything that takes you to one
place from another to save time. By this definition the wheelchair and stroller are both vehicles
And the justification of the rule: we don't want vehicles in the park to have the citizens roam
around the park freely. By this justification, we could allow wheelchair and strollers because they
won't harm anyone

Because of selection effect, most of the spotlight is only on the penumbra of the rule because
that's what is debated in court of law but that doesn't mean the core of the rule doesn't play a
part in the life/applicability of the rule. It's just as important as the fringe cases because the core
of the rule quietly plays its part.
[Image 1163.jpg]
Hard cases: the ones that are debated in the court.
Tension between language and purpose:
For example the rule says the motorised vehicles are not allowed due to the noise and pollution
they cause. So what about electric and solar powered motorised vehicles which doesn't cause
noise and pollution ...they are under purview of the rule but are outside the rationale of the rule.
To solve this, the judiciary will come in and rewrite/amend/change the rule.
[Image 1166.jpg]

[Image 1167.jpg]
In the examples above, the music teacher would have her own rationale in enforcing the strict 9
am rule like she would want everyone to be on same page before the class begins..however if
this is the rationale the late comer who had done all his homework and is up to date with his
work should be allowed in the class.
But what if some other person is enforcing the rules and aree not on the same page about the
rationale of the rule which happens when the rationale of the rule are not obvious from the rule
itself. Plus there exist multiple rule system. The traffic judge won't give a single fuck about the
music teachers rule to reach on time when it means broken traffic rules.

Judges have to provide public justification on the enforcement of a rule..for example a traffic
judge has to provide reasonable and legimitate justification if he is asking some violator to pay a
fine because they broke some rule.

Rules generality applied to a class of people.

Vs
Command (very specific) : directed to an individual type of thing.

Ex: only Meenakshi wears a white shirt on Saturday at her campus.

So a campus makes a "rule" that women who wear white shirt on campus on Saturday are not
allowed to attend classes. Even though this rule only applies to Meenakshi, it is a rule because
it created a class of people (women who wear white shirt)
If the notice issue was directed addressed to Meenakshi to not attend a class, then it would
have been a command.

Source of Rules ...where do rules come from?

Example...the source of the 9 am music class rule came from the music teacher
But the authority of law is restricted to the state unless it extends its authority to some other
institutions like the religious system to ceremonies, marriages etc.
Law is self-contained by itself.

Session 3:

Rule Plurality of normative and legal pluralism



Legal pluralism asks a difficult question: Can multiple legal systems apply to a single person
impacting at the same time.
The answer is mostly no ..for example for an international treaty to be applicable to an Indian
system, first the Indian legal system has to be recognise that treaty. The international treaty will
remain secondary to the Indian legal system as it's validity would remain only if the India legal
system recognises it.

Levels of law based on geography like international law, national law etc.
Hierarchy of law exist within a legal system for example constitution is the highest level of law in
Indian legal system..all other laws (legislative/ordinance etc) will be below it and nothing can
contradict the constitution.



In Billy and Maro's case different types of rules like traffic rules, cultural rules, moral rules, and
traditional rules were applicable.
And there were two types of rules system that governed the case
1) Traditional community based rule system
2) Papa Guinea state legal system
The difference between rule and rule system is that a bunch of rules that are made,
implemented and enforced by a set of institutions constitute a rule system.

What is the legal system?

And How is the legal system different from a rule system?
Rules are broader than laws..a legal system is a subset of a broader rule system.
Rudden says : A legal system is a framework procedure or process which the community uses
for interpreting and enforcing the law.


Sources of the legal system can be religious or secular.

Religious rules are as per some deity or divine entity and are enforced by the priest or an officer
from the religious institutions.
Secular systems are where rules are made by humans and are enforced by institutions
specifically made for law enforcement.

Some countries have both religious and secular systems.

Common law vs civil law

Common law where the judiciary and previous cases play a very important role in setting
precedents and can apply in subsequent cases.
Present in Britain and it's once occupied countries (commonwealth countries like India, Canada)

Civil law where judiciary isn't an important source of law, parliament is the only legislative
authority. Here judges only play the role of interpreting the law and applying the law as it is and
the previous judgements bear no importance in similar cases in future.
Present in France, Belgium, Quebec (part of Canada)

Customary law..law evolved with customs and social practices and it interacts with all types of
legal systems or their groups.
Ex: Religious civil law system
Or secular common law system
But the customary system interacts with all of them. One Example of customary legal system in
India are khap panchayats

Monarchy is a form of political system, not a legal system.

Legal tradition: deeply rooted, historical attitude of people towards law..relates law and legal
process to its cultural context.
Legal tradition= legal process + culture+ people's attitude
For example: There is different legal tradition in India in different regions. In some places people
look for alternative conflict resolution methods like panchayats or community based systems
because the Indian legal system seems foreign to them and also inaccessible due to financial
reasons.

Law made by the Parliament are in the form statutes/Act

Ex: Income tax Act
Laws that emerges from the Executives are in the form of orders/Rules/regulations . It's a form
of delegated legislation.
Ex: Income tax Rules/regulations. (these rules with capital R are subcategory of rules)
Case Law and precedents emerge from the judiciary.

What is law? Differs from jurisdiction to jurisdiction.

Rule of law as a system?

In 1979 in Britain Pedro was being questioned by a police officer named Martin when he was
standing at doorstep of some house. Pedro resisted being questioned and searched by the
police as the officer didn't give him any valid reason for doing so and the situation escalated and
resulted in the officer being punched by Pedro and then Pedro was arrested for assaulting an
officer of law.
However during the trial, the judge didn't find Pedro guilty of assaulting the police officer
because the police officer was not exercising his power in a lawful manner. The chief justice
went on to remark that police doesn't have unlimited power and they should do their duty within
the legal boundaries and they have to make the person understand why they are being
detained/questioned/arrested.
In this case the police officer didn't tell pedro thay he was being questioned on suspicion of
burglary or theft hence Pedro was freed on a technicality..but it still raises an important question:
What kind of rules are applicable on people who work for law and have special powers and
privilege like police or law enforcement officers?
Chief justice remarked that because these people have greater and special power which
common people don't have, they should also be subjected to special rules and these rules
should be made well known to the public.


Rule of law as a doctrine was given by A V Dicey, he was a legal theorist and jurist from UK.
It means that no man can be lawfully punished without clear breach of law. And no man is
above law . It is a bare minimum condition to establish or make any law

Law should not be retrospective means that new law cannot have a bearing on past
happening..it is only applicable from the day prospective the new law is adopted.
For example if you outlaw murder, it will be applicable only to murders happening after the law
has passed and not before.




The world justice project rule of law report is based on 4 important pillars
1) accountability
2) Just law
3) Open govt
4) Accessible and impartial justice.
It is based on 8 factors which are each graded and the scores compiled between 0 and 1.
India's overall score is 0.5 aand it is ranked 77/ 140 countries
The factors are
Constraints on govt powers
Absence of corruption
Open govt
Fundamentals rights
Order and security
Regulatory enforcement
Civil justice
Criminal justice.
These factors are important conception of rule of law which can be used as guidance by the
countries while framing their law. That being said, it's not the only factors that can be
considered.

Bhutan used Gross national happiness as a yardstick to make laws as part of its rule of law
guiding principles .


Normative ideals mean what is the goal of this law..that is what is the normative function of
these law...what are they seeking to do?
Are they trying to limit state power?
Is the goal of the law to give citizens right or make courts more accessible or to make alternate
form of conflict resolution like arbitration available?


Branches of law is distinct from sources of law which tells us where the law is coming from.
Branches of law on the other hand tell us about the various categories of law stemming from the
above sources.
Public vs private law is based on parties involved.
Public law deals with the state as one of the parties and any legal entity(like citizen/companies
etc) as the other party
While private law deals with two legal entities privately like company and its employees or two
companies or two citizens.
The grey areas or the blurred lines in between private or public law include public private
partnership or a private contractor acting on behalf of the government etc where there is a
debate which kind of private or public law should apply to govern these cases.

Subject matter distinction

Include contract law deals with enforcing contracts that are made between two separate legal
entities.
Also include Property law which deals with property matters.
Also include family law, environmental law, income tax law etc.

Criminal Law: Deals with criminal offences that are committed against people/company/state.
Tort law deals with negligence, unconstitutional detention, battery, assault that are not of nature
of criminal offense

Constitutional deals with matters pertaining to constitution and delas with issues like
demarcation of power between various institutions
And cases like lawful authority where the authority even has the constitutional power to act the
way they are doing.

and Administrative Law which deals with actions of public official and the way they carry out
their duties.

Civil Law vs criminal law

Civil law deals with disputes between individuals, businesses, or other entities. Criminal law
deals with crimes that are committed against society
Civil law regulates the private rights of individuals. It deals with cases such as: Property, Money,
Housing, Divorce, Child custody.
Civil law handles cases where one party may be required to pay restitution for damages caused
to another party. The penalty for civil law includes compensation to the victim and not death.
Like the civil law violation will require the accused to pay fine or compensate the victim but no
punishment.
Criminal law regulates individuals' conduct to protect the public. It deals with cases such as:
Murder, Theft, Robbery, Assault.
Criminal law handles cases where the individual committing a crime will receive a punishment
by the state and the victim is not compensated/restitued back to their normal position before the
crime. The punishment for criminal law varies depending on the crime. For serious charges, the
punishment often consists of imprisonment or a fine paid to the government.
Civil law operates on a “preponderance of evidence” standard, which is a “greater than
51-percent chance that the [plaintiff's] claim is true”. Criminal law requires evidence “beyond a
reasonable doubt.

Commercial Law may include company laws etc dealing with commercial transactions.

Rule of law guides the legal system.

SESSION 4:

The Skeleton of the Indian legal system:



Archives of Constituent assembly debates

ConstitutionofIndia.net is a searchable database where you can find all the digitised version of
constitutional debates that happened when the constitution was being formed that are organised
in 12 volumes but we can search for what we want as they are digitised now.
There is no way better way to understand the constitution than by going through the constituent
assembly debates so that we know where our articles are coming from.
These databases are secondary sources as they are somebody's else
interpretation/commentaries of the primary source (that is our orginal legal texts like the
constitution). So don't depend too much on the secondary sources, learn how to read the
primary sources

The words in capital letters in preamble are the constitutional values.
The first footnote in the preamble tells us about the forty second amendment ACT in 1976 which
was so major that it was called mini constitution. It was brought by Indira Gandhi govt. The
earlier SOVEREIGN DEMOCRATIC REPUBLIC was substituted by SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC w.e.f (with effect from) 3/1/1977

Preamble was passed after key parts of the main text of the constitution were passed.

Is the preamble enforceable?

Preamble is not enforceable as it is before the first article of the constitution. The constitution is
enforceable from the first article.
Preamble is only a guiding principle which captures the main sentiments of the constitution and
it is an integral part of the constitution which cannot be ignored, it is more than just the
introduction of the constitution. It is however an interpretational aid to the judiciary because it
helps them get an idea of what was going on in the mind of the makers of the constitution and
thus is frequently used to interpret the enforceable part of the constitution.

The Indian constitution: the blueprint of the Indian state.

Indian state is here being mentioned as A nation-state which is a political entity in which a
sovereign government represents a specific geographical territory and a people who share a
common identity, often based on factors such as language, culture, history, or ethnicity. The
concept of a nation-state implies a close alignment between the boundaries of the state and the
cultural or national identity of its citizens.

We are going to learn how to use the content page of the constitution for legal research so that
we can extract what we need from the constitution .
Using legal sources is about show and tell, we first show our source and then explain our
argument/interpretation



Which of the 10 articles of the constitution represent the broad framework of the Indian legal
system which includes the major institutions and the three branches of the state (the legislative
the executive and the judiciary)?

The broad framework of the Indian legal system, including the major institutions which form the
three branches of the state (legislative, executive, and judiciary), is primarily outlined in several
articles spread across different parts of the Constitution. However, there are a few key articles
that play a significant role in establishing this framework. Here are some of them:

1. Preamble + **Article 1:** Defines India as a Union of States.

2. UNION LEGISLATURE - article 79 ( Constitution of parliament -President+Lok Sabha+ Rajya

Sabha)+ article 80 (composition of council of states- lays the ground of Indians federalism which
begins in article 1) + article 81 (composition of the house of people). All these are present under
part 4 of the constitution, chapter 2 of part 4 titled the PARLIAMENT.
STATE LEGISLATURE - article 168 (Constitution of Legislature of the States) comes under
chapter 3 titled the state legislature under PART 6 of the constitution: the States.
3. EXECUTIVE : Article 52 (President of India), article 53 (Executive power of the Union) +
article 74 (Council of Ministers [of the Union] to aid and advise the President). These articles
are present under PART 5 titled the UNION and CHAPTER 1 of Part 5 titled THE EXECUTIVE.

FEDERAL STRUCTURE OF THE EXECUTIVE - article 153 ( Governor of the States) , article
154 ( Executive power of the State) + article 163 (Council of ministers [of the state govt] to aid
and advise the governor). These articles are present under PART 6 titled The States and
chapter 2 of the part 6 titled The Executive.

Here article 74 (and similarly article 163) is extremely important as it shows the relationship
between the constitutional/nominal head (the president) and the political elected representatives
(union council of ministers). All executive functions are carried out in the name of the president
but all the decisions are taken by the council of ministers which are elected by the people and
these decisions are binding on the president.
The articles on the legislature also shows that we are a parliamentary democracy and that the
legislature and the executive are not entirely separated: infact we can see that the executive
here arises from the parliament (all executive ministers are actually members of legislative
bodies like parliament or vidhan sabha at state level.)


In the above image the second paragraph begining with the word "PROVIDED" is called as
Proviso of the subsection of the article.
For example the above article 74 has two subsection. Subsection 1 has two clauses and the
second clause is the proviso (the middle para).

(A proviso in an article is a conditional clause or statement that outlines specific conditions,

exceptions, or limitations related to the main content or provisions. It typically serves to modify
or add details to certain aspects of the article, providing clarity or addressing specific
circumstances.)


Article 74 was amended multiple times as evident by the footnotes. The first amendment was
part of the great 42 nd amendment act 1976 brought by Indira Gandhi govt during emergency.
The proviso of the second clause was however brought by the 44th amendment which was
brought by the Janata party govt to undo the wrong parts of the 42nd amendment . That's why
you'll see many of the 42nd amendments followed by 44th amendment in many places in the
constitution.
The proviso gave the power to the president to send back the advise given by the council of
ministers for reconsideration which wasn't present earlier and it was added as a kind of
checking mechanism due to the way emergency declaration was made.


There is a difference in article 163 in which the governor of the state is already given some
discretionary power in the constitution which wasn't present in article 74 for the president. Thus
article 163 doesn't have any amendment or proviso. However amendment doesn't render any
part of the constitution more or less authentic.
The second subsection of article 163 gives governor powers to act on his discretion and that the
validity of anything done by the governor shall not be called in question..so here the constitution
is curtailing the power of judicial review on actions of governor on his discretion as they can't be
questioned or reviewed as per the constitution.
The third subsection also tells the advice was rendered by Ministers to the governor is
confidential and shall not be inquired into in any court thus here also it can't be subjected to
judicial review by courts. This is done in accordance with the separation of power doctrine so
that the judiciary doesn't intervene unnecessarily in the executive and the legislature.

Where in the constitution can we locate the source of law making power of the legislature?
The primary source of law making power is present in article 245, 246 under Chapter 1 of part
11 of the constitution along with Schedule 7. As seen below



It means that to understand the full text of article 246, we have to read it along with the
Schedule 7. Schedule 7 gives us three lists
The union list
The state list
The concurrent list
Which includes the topic on which the laws can be made.

Article 245 lists the geographical jurisdiction of the laws that can be made by the parliament and
the state legislature. It also defines the legislation division between the union and the state
legislative bodies.
The second subsection of article 245 says that the jurisdiction of UNION of India/parliament
cannot be called into question ever as nothing is out of its geographical jurisdiction in India.
So article 245 gives us geographical jurisdiction of parliament and state legislature.


Article 246 tells us about the subject matter of the laws that can be made by parliament and
state legislature. It has been divided into 4 clauses/subsections and each represents a different
aspect of the article.
Clause 1 begins with the wordings "Notwithstanding anything in clause 2, 3.." meaning in spite
of whatever is mentioned in clause 2, 3..
Similarly for Clause 2.


4. UNION JUDICIARY: established by article 124 (establishment and constitution of supreme

court)
Article 141 (law declared by SC to be binding on all courts) : established the supreme court as
the Apex court and everything else is under SC, thus our judiciary is union judiciary and not
federal judiciary as there is no division of power here.

Article 124 has been amended many times but some of the amendments have been stuck down
by the judiciary for different reasons as is evident in the footnotes.
Seven judges to be appointed in SC as was initially mentioned by the constitution have been
increased to 33 after the latest amendment in 2019.
The amendments that have been removed by the supreme court have still been mentioned in
the footnotes in accordance with the doctrine of separation of power between the legislature,
executive and the judiciary. Though the judiciary can stuck down the amendments, only
legislative bodies have the power to remove or add the wordings to the constitution.

These articles, among others, collectively contribute to the foundational structure and principles
of the Indian legal system, encompassing the major institutions and the three branches of the
state.

SESSION 5

The basic criteria to be member of parliament is to be citizen of India.



Women only represent 16 percent of the current parliament so does the parliament actually
reflect the population it is serving?
It is due to our patriarchal society where women aren't seen or wanted as leaders.
We have to think about representative nature of the parliament.
Women are to be given 33 percent reservation in parliament but even that does not reflect the
population of women in country which is 50 percent.

Sovereign body means the body with ultimate power.. Parliament power are limited by the
constitution thus it is not a sovereign body.
The power of parliament to make laws is limited by
- Division of Power (Schedule 7 , parliament cannot make laws on subjects of list 2 the state list,
article 245 gives division of geographical jurisdiction while article 246 when read with schedule 7
gives subject matter division between the union and the state legislative bodies)
- Fundamental rights : Parliament cannot make laws that contradict fundamental rights except in
the conditions detailed in the constitution itself.
- Judicial Review: Judiciary has the power to strike down laws made by the parliament if they
are not in accordance with the constitution.

Thus constitution is more sovereign/powerful than the parliament.

Yes, parliament can make amendments to the constitution but they can't change the main text/
basic framework of the constitution as mentioned by the constitution.

Residuary power is the power of the parliament on any residual topics that aren't mentioned in
Schedule 7.
Fun fact: the whole dispute about NEET is because education is the subject of concurrent list
thus both centre and state can make laws on it. But education originally was a subject of state
list only, it was amended by the Indira Gandhi govt later and shifted to concurrent list.
In case of dispute in subjects of concurrent list, the parliamentary law will be upheld over state
laws.

Waldron (rule of law) have given two models/forms of law making to understand how law
making actually happens:
1) Partisan model
2) Neutral model
Partisan model of law making is based on the political motives of the political party with majority
in the parliament. Their ideals, ideology and political beliefs will have a significant impact on the
type of laws being debated in the parliament.
It uses party whip and anti-deflection laws to make sure the legislators remain loyal to their
party and maintain stability of the government.

Thus partisan model is of the view that the ideology of the majority political party is what
determines the law making.
In contrast the neutral model of law making attributes a certain respect for law and law making
process which goes beyond the ideology of political party of law makers. It suggests the law
making transcend the party politics and presents itself as law for the larger benefit of the society
as a whole. Some topics are too important that they cut across party lines and get support from
all. Like case law amendments in Nirbhaya case to punish all those who were guilty were
supported by all parties on humanitarian grounds.
Ex: About laws against murders, every legislator would be supporting it regardless of their
political party (neutral model), however they might differ on the punishment of murder or
whether death should be given as form of punishment based on their political party ideological
beliefs. Other partisan examples include farm laws, pension bill, forest laws, climate laws etc
which every party has a different stand on due to their ideology.
Similarly for the issues of health and education.

Bills, Acts and Law:

Bills are the drafts of the new law/act that are introduced in the parliament for debate and
adoption
Act/Statue/Legislation is the form of the law emerging from the parliament after the bill has been
passed by the parliament.
Law is the broadest category within which are all kind of laws included in.
Parliament consists of lok sabha, rajya sabha and the President.
What is the difference between ministers and members of parliaments?
Ministers are part of members of parliaments. Members of parliament are part of the legislative
branch of the govt.
While cabinet/ministers are part of the executive branch of the govt and run the govt.

Bills can be classified into govt or private members bills on basis of who is introduced them in
the parliament.
Govt bills are bills introduced by the cabinet/ministers from the govt.
Private members bills are bills introduced by members of parliament who are not part of the
cabinet/executive. (they are usually not passed as they don't enjoy the support of the
majority/govt)
Ex: Transgender bills was first introduced by a private member and failed to pass, later on it was
introduced by the govt and then became a law.
Govt and private members bills can be further categorised on the subject matter of the bills into:
1)Original bills: New ideas/policies
2) Amending bills: Seeking to change existing laws
3) Consolidating bills: to bring all the small laws on one subject under one act
4) Expiring laws/ Continuances bills: renewal of expiring laws
(Some laws come with a sunset clause which says that these laws will cease to exist in case of
certain events or on some date in the future)
5) Repealing Bills: to remove an existing law
6) Bills to replace ordinances: To ratify ordinances that were temporary laws made by the
executive bodies when the parliament was not in session.
7) Constitution(Amendment)Bills
8) Money and financial bills: Mentioned in the constitution itself under article 110 and 117 and
these bills can only originate in lok sabha (rajya sabha cannot bring in these bills thus ordinary
bills can be introduced in rajya sabha but money bills cannot be introduced in rajya sabha)

How do bills become an act?

Any bills introduced in the parliament goes through 3 readings.


So in the first reading, the bill is introduced with the permission of the chairperson.
Once it is introduced, the govt publishes it in Gazette. It is important because law are to be
made publically as we heard Waldron in rule of law. Ignorance of law is not an excuse thus
public needs to know the laws that are being made by the govt.
E-Gazette is the journal of the govt like a daily digital noticeboard where it shares whatever it
wants to notify the public of. Whatever is shared in the gazette, the govt assumes that the public
know about it.
After that the bill is presented to the standing committee for reference which is made by the govt
for the initial review of the content..the committee gives its recommendations.
Then the bill can be either be withdrawn or amended as per the recommendation.

Second reading, there are two stages when bill is presented at the floor of the house for
discussion:
first stage which is principle level discussion where the need and the subject matter relevance of
the bill is discussed in the parliament.
After that the bill is either presented to a select/joint committee or presented to public for voicing
their opinion or both or can directly go to second stage where there is clause level discussion
where each clause of the bill is thoroughly read and debated and discussed and amended if
needed.
Ex: Forest conservation bill was recently presented before a joint committee which invited public
opinion over the bill specially from various state govts, policy think tanks and other stakeholders.

Finally in the third reading, again each clause in the amended version of the bill is read but now
it can't be amended again and then it is voted upon under motion to pass the bill.

This process is repeated in both lok sabha and rajya sabha if the bill is passed by both then it is
required to be signed by president to become the law.

There are Standing committee and Ad hoc committees (select/joint committees)

Standing committees are made from members of parliament from both the lok and rajya sabha
and include members from both the ruling party and opposition. They are constituted for
particular fields like agriculture, education etc.

There are three types of standing committees

1) Departmentally related as mentioned above like agriculture and education
2) Committees on Public and Private undertakings:
The division is 30 members of loksabha and 7 members of rajya sabha in such committees so
you can see the difference in representation and.power division btw lok sabha and rajya sabha
3) Financial committee to discuss matters related to finance.
Ministers are not in these committees to remove bias.
There are other types of standing committees as well like business committee which overlooks
the business done on floor of houses or subordinate legislature committee who will scrutinize
rules and regulations and other laws made by executive body.

Ad hoc committee are specially constituted to scrutinize/reviewing a specific bill/law only and
they are called select/joint committees and they are thus appointed on ad hoc basis (as per
need)

Citizens participate in law making procedures in various ways at different stages of law making:
1) Pre-legislative scrutiny:Before legislative procedure in form of laws initiated by civil society
groups, or when draft bills are published for public comments or even before drafting the bill
(comments were invited on reforms in uniform civil code before the draft was made so as to take
academicians and various think tanks opinion on how the bill should look like).
2) legislative scrutiny: during parliamentary procedures as discussed in the bill passing process
when different committees invite public opening and comments on draft bills.
3) Post legislative scrutiny: when the law commission of India invites public comments to
scrutinize various acts and proposing reforms.
Law commission can also come at pre legislative stage where it can ask to initiate new bills for
new reforms .
And finally the greatest feedback mechanism is voting and general elections to gauge public
opinion on the work of the legislators.

Other points :
Acts have commencement clause which notify when the particular act will be in force from.
Some sections of the act might commence at a later date or in case of happening of certain
events in which case there will be a gazette notification from the govt when the section becomes
enforceable.
Different legal sources website to keep track for laws
1) India Code
2) PRS website
3) Official gazette website of India published in multiple languages, tho the language might be
technical and difficult to understand by normal public and literacy is also an issue
4) some databases

Till here is the syllabus of FA 1

 Notes By Harish

Module 1: Rules and Rule Systems

Understanding Rules Part I

1 What are ‘Rules’?

A general norm mandating or guiding conduct or action in a given type of situation.
A rule is essentially a norm that is mandatory or in a way guiding to act in a certain manner.
There are various rules that operate, not all rules are legal rules and not everything in the legal system is in
the form of rule based decision making

2 Rule characteristics
Normative – Prescriptive in Nature / Should be, Shouldn’t be
General – Generally Applicable to a speciIic context such as country, stare etc.
Guide/Standard – Standard for code of conduct
Serves as a justiIication for human action

How things should be is a prescriptive rule, in this course we will deal with more prescriptive

3 Rule Pervasiveness
Rules are there all around and they regulate so many functions.
What are prescribed in the rules that are to be followed
Determined by rules –Social / Professional life, all of these are regulated through rules and this is what is
called as the pervasiveness of rules.
The shear fact that our lives are governed so much by rules so that is called by the pervasiveness of rules,
regulating our lives and how do we conduct ourselves.

4 Why do we follow Rules?

Serving a Purpose
To maintain order in society
To prevent chaos – prevent confusion or disorder
Normative Pressure
Sanctions (consequence if you do not follow the rule)
Rationale

Understanding Rules Part II

5 The Core and Penumbra/Fringe of a Rule

Penumbra & the fringe are same
 The core of the rules is already to us and we all agree to that
Penumbra is the surrounding aspect of the rule and becomes fuzzy about whether and how a rule will apply.
The Selection effect.

6 Rule Generalisation
Produces two kinds of hard cases -
Those that exist in the penumbra / rule fuzziness
Those that do not adequately represent the purpose/value/ background condi?on that they are meant to serve –
it is a tension between language and purpose

7 The background conditions/ value behind a rule or the rationale of a rule

Ra?onale of a rule - So as to beCer understand, interpret, and apply them
Understanding the rationale behind rules helps us understand their purpose and the motivations behind them.
This, in turn, helps us to apply them in the manner that they may have been intended to be applied.

8 Sources of Rules
Legisla?on (primary and secondary)
The case law rules of common law and equity.
Parliamentary conven?ons.
General customs.
Books of authority

9 Rule Plurality/ Normative and Legal Pluralism

Legal pluralism is generally defined as a situa?on in which two or more legal systems coexist in the same social
field.
Rules Plurality – A plurality opinion is an appellate opinion without enough judges' votes to
cons?tute a majority of the court. The plurality opinion is the opinion that received the greatest
number of votes of any of the opinions filed. Because a majority could not reach a common view, a
plurality opinion is not binding.
Norma?ve - Norma?ve – Perspec?ve nature how something should be or shouldn’t be. Direc?on
based context. It gives you judgement it is not a recommenda?on. What cons?tutes good / valid
conduct etc.

10 Rule Systems
What are Rule systems? How do they work?
Legal Systems

11 Understanding Legal 'Systems'

A legal system is a procedure or process for interpreting and enforcing the law
A Legal system is a framework of rules, procedures and institutions, the community user, to interpret and
enforce their law.
Legal system is a binding on all legal disputes, within its particular jurisdiction.

12 The Rule of Law as a 'System'

no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land’

no man is above law’

the constitution is pervaded by the rule of law on the ground that the general principles of the constitution
(as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial
decisions determining the rights of private persons in particular cases brought before the courts

laws should be general and apply equally to everyone; laws should not be retrospective; laws should be
intelligible and easy to follow; laws should be publicized; the law should not be changed too often; and so on.

13 Different forms of Legal Systems

Source – Secular / Religious
Role of Institutions – Common / Civil
ALSO CUSTOMARY LEGAL SYSTEM

The Indian legal system is drawn from three primary sources – The Common Law, The religious Law and The
Civil law

14 Overview of the Indian Legal System

The Indian judicial system follows the common law system based on recorded judicial precedents as inherited
from the British colonial legacy.

15 Sources of Indian law

• Sources of Law in India

 • Constitution of India, 1950,
• Legislation,
• Ordinances,
• Delegated Legislation,
• Precedent/ Case-Law,
• Custom,
• International Law,
• Contracts,
• Justice, Equity, and Good Conscience
Branches of Law – Public & Private, Contract Law, Criminal Law, Property Law, Tort Law, Constitutional &
Administrative Law.

Module 2: The Indian Legal System

1. Preamble
Preamble was Iirst amended in 1976, SDP came into effect in 3-1-1977

2. Constitutional structure and design of the Indian State and the Indian Legal System
Preamble + Art 1
UNION LEG – 79 (Constitution of Parliament – Pres + LS + RS) + 80 (Composition of the Council of States – lays the
ground for Indian federalism which begins in Art 1) + 81 (Composition of the House of People)
STATE LEGISLATURE – 168 (Constitution of Legislatures in the States)
EXECUTIVE: 52 (President of India), 53 (Executive power of the Union) + 74 (CoM to aid and advise the President)
FEDERAL STRUCTURE OF THE EXECUTIVE – 153 (Governor of the States), 154 (Executive power of the State) + 163
(CoM to aid and advise the Governor)

3. The Legislature
- Distribution of powers under the Constitution
DISTRIBUTION OF POWERS- The Constitution emphasises that there should be administrative cooperation between
the Union and the states. According to Article 261, full faith and credit shall be given to public acts, records and
judicial proceedings of the Union and States in all part of Indian territory.
The Indian Constitution has distributed legislative powers between the Centre and all the state governments. The
distribution is laid down in the Seventh Schedule, which consists of three lists. Of these three, 'X' consists of over 90
subjects, including inter-state migration, Election Commission, and the Census.

- The Legislature
A legislature is an assembly with the authority to make laws for a political entity such as a country, nation or city.
They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are
usually known as primary legislation.

4. The Executive*
- Functions and Structure
- Delegated Legislation
Course-1: Introduction to Law and Legal Systems Module

The Indian Legal System

1. The Legislature

A legislature is a deliberative assembly with the legal authority to make laws for a
political entity such as a country, nation or city. They are often contrasted with the
executive and judicial powers of government.

Sources of Law – Legislation. Statutory law or statute law is the laws that are created for the
legislation. A formal act of legislation given in the written form is called a statute. While
legislation definition is given as a kind of assembly that has the power to amend, pass, and
repeal laws.

Passing laws, creating the government's budget, confirming executive appointments,

ratifying treaties, investigating the executive branch, impeaching and removing
members of the administration and judiciary from office, and redressing constituent
grievances are just some functions of the legislature.

• Reading Legislations - Parts of legislation, structure of a statute, General Clauses Act

Reading Legislation
• The first stage, is to ask, who am I? At what stage in what process am I? What am I
trying to do?
• The next important steps are to discover when the statute came (or comes) into force,
to what period of time it applies, its duration and its geographical extent.
• The statutory words provide a natural and convenient starting point
o Internal and External Aids
• References
o Within the Act
o To other Acts
o Purpose of the Act - a consolidation Act is to be interpreted according to its
wording but reference to its antecedents and a codifying Act is to be
interpreted according to its wording but reference to the earlier law may be
made where it expressly preserves that law

Parts of Legislation
• Title
• Preamble (Long Title, Short Title) Conservation
• ENACTING FORMULA – declares the authority of the law BODY OF THE
ENACTMENT
• EXTENT CLAUSE
• COMMENCEMENT CLAUSE
• NTERPRETATION/ DEFINITION CLAUSE
• MAKING CLAUSE : provisions delegating to the Executive rule-making powers
• REPEAL and SAVINGS CLAUSE
• SCHEDULES
 • STATEMENT OF OBJECTS AND REASONS – appended to the Bill, cannot be
relied on in Court.

Structure of an Statute / Act

• Title
• Preamble – Do we need it? - The legislative intent should really be left to be gathered
from the other constituent parts of the enactment. (Viswanathan, p. 164)
• Enacting Formula
• Section 1 - (a) the short title (b) the extent of operation of the enactment and (c) its
commencement.
• Application of the Act
• Definitions – “A draftsman would be well advised to have a glossary of terms,
including words defined in the General Clauses Act, words which have received
judicial interpretation and words which have been used in a certain sense in other
Acts. This will enable him to decide whether the words he uses will be taken in the
sense which he means or whether a special definition is necessary.” (Viswanathan, p.
171)

General Clauses Act

The purpose of the General Clauses Act is to place in one single. statute different
provisions as regards interpretations of words and legal principles which would
otherwise. have to be specified separately in many different Acts and regulations.

The General Clauses Act, 1897 contains-

• ‘definitions’ of some words and also some general principles of interpretation.
• This is an Act intends to provide general definitions which shall be applicable to all
Central Acts and Regulations, The General Clauses Act is very effective in the absence
of clear definition in the specific enactments. and
• where there is a conflict between the pre-constitutional laws and post-constitutional
laws.
 • Working with Legislations- Interpretation, protasis and apodosis

Interpretation is the process to determine the meaning of the statutes or other legal
provision. Statutes are also known as legislative enactment or backbone of any legal
system. These statutes are the primary source of most of the law jurisdictions.

The "if"-clause of a conditional sentence is called the protasis, and the consequent or
main clause is called the apodosis.
Protasis – The condition when the rule applies.
Apodasis – The prescriptive part of the rule when the said condition applies. the clause
expressing the consequence in a conditional sentence, often beginning with then, as
“then I will” in “If you go, then I will.”:

2. The Executive

Executive is the branch of government responsible for the implementation of laws and
policies adopted by the legislature. The executive is often involved in framing of policy.
The official designations of the executive vary from country to country. Some countries
have presidents, while others have chancellors.
The functions of the executive are majorly to implement and enforce laws passed by the
legislative branch. The executive interprets and enforces laws according to the
Constitution.

• The Executive: Functions and Structure

The Union executive consists of the President, the Vice-President, and the Council of
Ministers with the Prime Minister as the head to aid and advise the President.
The executive is the organ that implements the laws enacted by the legislature and
enforces the will of the state. It is the administrative head of the government. Ministers
including the Prime/Chief Ministers and President/Governors form part of the executive.

The primary function of executive is to enforce laws and to maintain law and order in the
state. Whenever a breach of law takes place, it is the responsibility of the executive to
plug the breach and bring the offenders to book.

• The nature of executive power

Executive power of the Union is vested in the President and is exercised by him either
directly or through officers subordinate to him in accordance with the Constitution.
Supreme command of defence forces of the Union also vests in him.

Subject to the provisions of this Constitution, the executive power of the Union shall
extend—
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement

Ordinarily the executive function connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away.

• Traditional Executive v. Regulatory Bodies

Regulatory Body - “denote institutions operating at arm’s length from the government,
insulated from day-to-day political pressures and using technical expertise in reaching
decisions.”

While executive agencies are not supposed to have judicial or political autonomy,
regulatory agencies are supposed to granted broad judicial autonomy and limited
political autonomy. Regulatory agencies have judicial autonomy to the extent that their
managers are supposed to have the power to take on specific cases.

• Delegated Legislation

The legislature merely down general outline of scheme in a statute and delegates to the
executive or some other authority, the task of making detailed regulations (Sarathi, p. 392)
Legislative authority is being transferred from the legislature to the traditional executive or
other regulatory bodies through delegation. The legislation made by the latter is called
'delegated legislation'.

• Checks on delegated powers

Three answers are generally given as to why delegation should be kept check, namely: (1)
The legislature may delegate to a Government not only power to make regulations for
purpose of working out details, but also to alter the enactment a power to which "the sinister
name of a VIII clause" is given, and thus confer arbitrary power;

(2) it is impossible for to know these rules and often the language is ambiguous. (

3) it is ridiculous to suggest that because authorizes some Government body to laws dealing
with the grading of eggs a dictatorship is us; but if legislation by the executive ever became
so general as to be accepted as the procedure, a frame could be created in the community
which would not be healthy. (Sarathi, p. 392)

How to Keep a Check

 • Delegated legislation cannot alter or be contradictory to the statute authorizing and in
the event of an irreconcilable conflict, the statute prevails.
• Delegated legislation should not unreasonable.
• The same expressions in enabling statute the legislation are to have the same meaning.
• Presumption of validity
• Excessive delegation
• Sub-delegation
• Quoting the wrong provision would not have any effect on delegated legislation, if in
fact there is power elsewhere in enabling Act.

• Procedural Rules
• Previous Publication
• Publication and date of publication
• Laying before Parliament
• Consultation
• Prior approval

3. The Judiciary:

The judiciary is the system of courts that interprets, defends, and applies the law in the
name of the state. The judiciary can also be thought of as the mechanism for the
resolution of disputes.

• The Indian Judiciary

The judiciary in India has a pyramidal structure with the Supreme Court (SC) at the top.
High Courts are below the SC, and below them are the district and subordinate courts.
The lower courts function under the direct superintendence of the higher courts.
 • The role of judges

“The job of a judge is to apply existing law to the particular cases that are brought before
him. It is not for him to make new law or to impose his own moral or political preferences on
the parties unfortunate enough to fall into his power, for he is neither elected to do that nor
accountable to an electorate for the preferences he holds.

The law is made by the people’s representatives in Parliament, and the judge’s job is to find
out what that law is and apply it to the facts that the litigants bring to his courtroom.”

The judge hears all the witnesses and any other evidence presented by the prosecution
and the defense. The judge decides whether the accused person is guilty or innocent on
the basis of the evidence presented and in accordance with the law. If the accused is
convicted, then the judge pronounces the sentence.

“Judges do not make judicial decisions in isolation. Instead, they sit within courts and
professional hierarchies that shape and constrain their role in the adjudicatory process.
Mapping the structure of this larger architecture helps us understand how both judges and
litigants navigate this system and the context in which the law and the Constitution are
ultimately interpreted.”

• Judges and the judicial process

Judicial process is the way by which courts affect the application and development of
law. From the point of view of people governed by the legal system, it refers to a set of
mechanisms of laws, binding norms, procedure, and institutions within which he or she
can avail the fruits of law.

One of the major functions of the judiciary is to interpret (explain or clarify)and apply
laws to specific cases. In the course of deciding the disputes that come before it, the
judges interpret and apply laws. Every law needs a proper interpretation for getting
applied to every specific case.

The judicial process is a set of interrelated procedures and roles for deciding disputes
by an authoritative person or persons whose decisions are regularly obeyed. The
disputes are to be decided according to a previously agreed upon set of procedures and
in conformity with prescribed rules.

• Sources of law emerging from the judiciary

Judicial precedent is the source of law where past decisions create law for Judges to
refer back to for guidance in future cases. Precedent is based upon the principle of
stare decisis et non quiet-a movers, more commonly referred to as 'stare decisis',
meaning to “stand by decided matters”.

To conclude, sources of law in jurisprudence can be classified on the basis of several

grounds. But the most notable or common classification divides it into legislation,
precedent, and custom. Precedent refers to the previous judicial decisions. The
legislation refers to the statutory rules enacted by the legislature
 • The doctrine of precedent - horizontal and vertical application

The doctrine of precedent, which is also known as stare decisis, i.e. stand by the
decision, is based on the principle that like cases should be decided alike. Once a case
is decided by judge by applying the principle, a case on similar facts which may arise in
future must also be decided by applying the same principle.

This principle is known as Stare decisis, which is derived from the Latin phrase stare
decisis et non quieta movere , which means to stand by the decided matters. In India, it
is commonly known as the concept of precedent.

Judicial precedent or decisions is a process which is followed by the judges to take the
decision. In Judicial precedent, the decision is taken by following the similar cases
happened in the past. So judicial decision is based on the principle of stare decisis i.e.
“stand by the decision already made”.

• English doctrine: a previous decision is to be treated as an authority if:

• it is analogous to a present dispute before a court;
• it was decided by a court which, according to the rules of the doctrine,
has the status to make decisions which will be deemed to be
authoritative; and
the decision has not been abrogated by a statute or a court which has the power to
overrule prior decisions – reversal v. overruling.

• Horizonal & Vertical Application

Vertical precedent refers to the extent to which a court lower down the hierarchy is
bound to follow a decision of a court higher up the hierarchy.

Horizontal precedent refers to the extent to which a court at the same level is bound to
follow its own earlier decisions.

à if the precedent is a decision of a court inferior to it in the judicial hierarchy, then

it is not bound to follow the precedent, but may do so if it chooses; persuasive
à precedents decided by superior courts of some other jurisdictions may be
treated as persuasive but never as binding.
Precedents may be binding or persuasive

Which court is it? Where does it sit in the hierarchy of courts?

à if the precedent is a decision of a court superior to it in the judicial hierarchy,
then it must follow that precedent in the present case (this is what we mean
when we say a court is bound by a decision of another court).
 à if the precedent is one of its own previous decisions, then, subject to certain
exceptions in which it may depart from it, the court must follow the precedent.

• Reading judgments and structure of a case

As you start to read judgements, divide the it following sections. It will help you to
understand it edectively as you go on to read judgements till the end.

• name of the case;

• name of the court which decided the case;
• date of decision;
• citation of the case;
• name of judge or judges;
• judgment
• procedure by which case came before court or tribunal (if original jurisdiction so
state). This may also include-
o the relief the plaintid asked in the lower court
o what defendant asked the lower court to do
o what the lower court was complained of by the party appealing
• the facts before court for decision. In setting out complicated facts adopt
chronological order;
• the legal question or questions or issues involved;
• important arguments of counsel;
• decision;
• reasons for decision and
• reasons for dissenting opinions, if any.

Structure of a case

A case is the written memorandum of a dispute or controversy between persons, telling

with varying degrees of completeness and of accuracy, what happened, what each of
the parties did about it, what some supposedly impartial judge or other tribunal did in
the way of bringing the dispute or controversy to an end, and the avowed reasons of the
judge or tribunal for doing what was done.

When reading a case you should be noting various pieces of information, in

particular: the case name; the citation; the court deciding the case; what was the issue
in the case; what decision did the court reach in the case; and how did the court arrive
at its decision.

o Caption
o Types of disputes
o Appellate Litigation
o Citation
o Author of the Opinion
o Facts
 o Issues
o Principles of Law
o Concurring and dissenting opinions

• Structure of the Case- what information can we get?

o The court that pronounced the judgment

o What type of matter the case related to?
o Who the main parties in the case were?
o When the judgment was pronounced?
o How many judges made up the bench that pronounced the judgment?
o Whether the judges agreed with each other’s opinions?
o What the outcome of the matter was?
Course 1

Q6. What do the terms original and appellate jurisdiction mean in the context of Indian
courts? Provide examples to support your answer.

Q9. What is delegated legislation? Explain the various forms of delegated legislation.

Q10. Describe the different kinds of Government bills and discuss about the Private member
bill.

Q11. (a) What is the significance of ratio decidendi in judicial precedents, and how does it
differ from obiter dicta? (b) What are the advantages of stare-decisis?

Q12. Discuss the advantages and disadvantages of precedent (stare decisis)

Q.What are the vertical and horizontal application of the doctrine of precedent? How are
these applied in the Indian legal system? Substantiate with examples.

Q19. Assume you are a lawyer representing a client in an important matter before a
three-judge-bench of the Bombay High Court. You find two analogous judgments that might
help your arguments: one is a decision of a three-judge bench of the Kerala High Court, and
the other is a decision of a two-judge bench of the Calcutta High Court. How can you
effectively utilize these judgments in presenting your case?

Q21. Discuss the various ways in which a court can treat a previous judicial decision.
Explain the significance and implications of each approach, and how they impact the
development and application of legal precedent. (Doctrine of Precedent)

Course 2

Q. Discuss the legal provisions and remedies available under the Information Technology
Act, 2000 for protecting trade secrets and addressing breaches of confidentiality, citing
relevant case law examples.

Q. Discuss the evolution of the fundamental right to privacy in India. Analyze the significance
of landmark cases in establishing the right to privacy as a fundamental right, emphasizing
the progression from initial denials to the landmark decision in Justice K. S. Puttaswamy v.
UOI.

Q. Discuss the key regulatory aspects and challenges surrounding the use of Artificial
Intelligence (AI) technology, with a focus on data privacy and ethical considerations.

Q. X, a user of an online food delivery app operated by Y, consents to the processing of her
personal data for the purpose of delivering her food orders. One day, X places an order for a
meal and provides payment. However, before the order is fulfilled, X withdraws her consent
for processing her personal data.
Under the DPDP Act 2023, is Y required to stop processing X's personal information for this
specific order? What about future orders placed by X after she withdraws consent?
Course1:

1.Describe the characteristics of rules, the various types of rules, and explain the reasons for
adhering to rules.

2.Explain the source of the Indian legislature's law-making power and its significance.

3.What are the limitations on the power of Parliament in making laws, and why is the
Constitution considered more sovereign or powerful than Parliament in a democratic
system?

4.Name and describe 4 characteristics of rules in a legal system.

5.(a) What is a rule. Describe the 4 aspects of a rule. (b) Discuss about the elements of a
rule.

6.In the context of a rule, what are Protasis and Apodosis and how can they assist in rule
interpretation.

7.Name and describe four sources of Indian law.

8.Is the Indian legal system, a common law system, civil law system or a hybrid legal
system? Substantiate your answer with examples.

9.Name and describe the ingredients of the rule of law based on A.V. Dicey.

10.Name and describe the ingredients of the rule of law based on Jeremy Waldron, Fuller’s
principles.

11.Explain the concept of core and fringe introduced by HLA Hart in legal theory. Explain the
two types of hard cases that emerge from rule generalization.

12.(a)What distinguishes legal rules from rules of science, or rules of nature? (b)What kinds
and degree of normative pressure can legal rules apply, and where is this normative
pressure derived from

13.Are all legal systems 'rule of law systems'? What distinguishes such a system from a
non-rule of law system?

14.Describe the two models of law making based on Jeremy Waldron, Partisan model of
law-making and Neutral model of law-making.

15.What types of justice does the Preamble to the Constitution of India identify as
constitutional goals? Provide examples of the manner in which each such type of justice has
been sought to be achieved in the Indian state. (250 words max)
16.Which of the 10 articles of the constitution represent the broad framework of the Indian
legal system which includes the major institutions and the three branches of the state (the
legislative the executive and the judiciary)?

17.Explain the distribution of legislative powers between the Union and the States under the
Indian Constitution, as outlined in Article 246. Explain the concept of territorial limits of
legislative powers as outlined in Article 245.Discuss the significance of Article 248, which
deals with the Residuary Powers of Legislation.

18.What are the different ways in which citizens can participate in the law-making process in
India, and at what stages of the legislative process can this participation occur?

19.Describe the legislative process in the Indian Parliament, including the different stages a
bill has to go through before it becomes an Act.

20.Discuss the key branches of law in the Indian legal system and the distinguishing
features of each.

Course 2:

1.Describe the key provisions of the Indian Telegraph Act, 1885 and the Unified License
Agreement that govern the telecommunications sector in India.

2.Analyze the roles of TRAI and the IT Act in regulating the telecom and digital sectors in
India.

3.Assess the potential impact of the proposed changes to the telecom regulatory framework
in India.

4.How does "Cyberspace and the Law of the Horse" advocate for clear rules and property
rights in specialized areas, cautioning against overly specific laws for technology?

5.What challenges do global networks pose to traditional legal boundaries in "Law and
Borders - the Rise of Law in Cyberspace," impacting property and jurisdiction in cyberspace?

6.Discuss the ethical and legal issues of unwanted avatars in cyberspace from "Unwilling
Avatars," balancing individual liberty and regulation to prevent discrimination online.

7.What are the key concepts associated with Lawrence Lessig's idea of "Code is Law" as
discussed in his book "Code and Other Laws of Cyberspace"?

8.Discuss the legal issues and principles surrounding jurisdiction and cross-border content
takedown orders on the internet, as highlighted in the Baba Ramdev case, Banyan tree case
and the virtual juggernauts.
9.Summarize the key provisions and objectives of the US Department of Justice's Cloud Act,
including how it aims to address the limitations of Mutual Legal Assistance Treaties (MLATs)
in facilitating cross-border access to data for law enforcement purposes.

10.Define an intermediary under the Information Technology Act, 2000, and outline the
liability exemptions and conditions for intermediaries regarding third-party information
hosting and transmission.

11.Discuss the evolution of intermediary liability in India, highlighting key legal cases and
legislative provisions such as the Information Technology Act and Copyright Act, and the
implications for internet intermediaries.

12.Explain the significance of the Puttaswamy v. Union of India case in affirming the right to
privacy as a fundamental right and outline the three criteria established by the Court to test
violations of this right.

13.Explain the role and obligations of a data fiduciary under the DPDP Act 2023.