INTRODUCTION TO LAW

NOTES

The term "law" originates from the Old English word lagu, which referred to
something laid down or fixed. This concept aligns with the Latin term lex (from which
we derive "legal"), which also means a statute or something binding. Historically, law
has been viewed as a set of rules and principles established by a governing authority
to regulate human behavior, promote social order, and ensure justice.
Law is primarily made by legislatures or parliaments, the elected representatives of
the people in democratic systems. These bodies create statutes, or written laws, that
regulate various aspects of life. In other forms of government, laws might be created
by monarchs, autocrats, or religious authorities.

Role of Morality and Ethics; What is Law?

Blackstone said that law, in its most general and comprehensive sense, "is that
rule of action which is prescribed by some superior and which the inferior is
bound to obey”.
In Blackstone's definitions there are two main concepts: (1) the concept of a
"superior," and (2) the concept of a command.
While ethics is the sphere of ideal forms of life set by the individuals for themselves,
the sphere of morality denotes rules or principles governing human behaviour which
apply universally within a community or class.
For Salmond, philosophical jurisprudence is the common ground of law and ethics.
Blackstone speaks of ethics or natural law as synonymous and of natural law as the
ultimate measure of obligations by which all legal precepts must be tried and from
which they derive their whole force and authority.
The Middle Ages put a theological foundation under natural law and Christian morals
were considered as the basis of law.
It was conceived that moral principle was to be also a legal rule and consequent
progression of moral ideas into legal ideas. It clearly shows that how once a moral
principle became an equitable principle and then a rule of law in all legal systems of
the world.
Natural Law- A set of universal principles that govern human conduct and are inherent
in humans. Natural law is based on morality, ethics, and what is inherently
correct. Examples of natural law include the right to self-defence, the duty to honour
promises, and the principle of justice.
Positive Law- A set of legal rules created by people in a governing body or political
community. Positive law is also known as "human law". Examples of positive law
include criminal laws, civil laws, and administrative laws. Positive laws may or may
not reflect natural law.
In the Post-Reformation Europe, it was asserted that law and morals are distinct and
separate and law derives its authority from the state and not from the morals.
However, when the natural law theories became popular in the seventeenth and
eighteenth centuries, law again came to be linked with morals. In the nineteenth
century under the powerful influence of analytical positivism (Analytical positivism
is a school of legal theory that emphasizes analysing law based on observable facts
rather than ideals or morality), only legal norms were made the subject of
jurisprudence and morals were excluded from the study of law.
Morals are an evaluation of interests. Therefore, jurisprudence is a branch of applied
ethics and law-making is not primarily a juridical (relating to judicial proceedings and
the administration of the law) but an ethical process.
For Bentham, pleasure and pain were the ultimate standards on which law was to be
judged. It is for this reason that consideration of morality had no place in Bentham's
utilitarian approach. Bentham had spoken of justice in a disapproving fashion and had
subordinated it completely to the dictates of utility. Utilitarianism holds that actions
are only justified if they have a clear and visible effect on the welfare of the people
involved.
The separation of jurisprudence from ethics which Austin advocated is one of the most
important characteristics of analytical jurisprudence. However, Austin did not deny
that moral influences were at work in the creation of law though he allowed nowhere
in his theory any place for the moral element while defining the nature of law.
It is surprising to note that although Hart as positivist (Positivists are people who
believe that knowledge can only be based on what can be objectively observed and
experienced. They believe that the world is capable of objective interpretation and that
social science should follow the methods of natural science) generally excludes
morality from the concept of law, has spoken elsewhere of the acceptable proposition
that some shared morality is essential to the continued existence of any society.
Morality is implicit in Hart's system of law, which he describes as union of primary
and secondary rules. In fact, Hart's positivism has scope for natural law as well as for
morality, which has made him both a positivist as well as naturalist. According to him,
the minimum content of natural law is shared by both law and morals.
Thus, positive law is really an implementation of the natural law and has to vary with
the changing circumstances and conditions of social life.
Krishna Iyer J rightly observed "we cannot regain our past glory unless we realize the
importance of morality in our present legal system”. Just as morality fosters and
strengthens the soul in the same way morality in law provides greater force to it and
commands voluntarily obedience from the people.

Judicial Process
Salmond says that "judicial decisions have the force of law is legally ultimate and
underived. These ultimate principles are the grundnorms or basic rules of recognition
of the legal system.
Judges are part of society in which human conduct is governed by rules. They form
one of the techniques in which the social conflicts are to be resolved, and are expected
to iron out the social tensions in a rational manner. But being human- beings their
decisions are bound to be 'intuitive' or 'inarticulate’.
This leads us to the logic that judges must conform to established norms or rules. But
the role of a judge is not merely mechanical. They do not function mechanically.
Sometimes a rule may also authorise a judge to do what is fair, just or reasonable.
The argument that adjudication must take place according to established rules cannot
be taken literally. Rules are not an end but merely means to an end. Moreover, every
social order has certain ideals or values. The rules embody social objectives and
policy choices. A judge also lives in the society, and hence, has a choice or discretion
within this social order. Holmes has gone to the extreme when he says that judicial
discretion is a "sovereign prerogative of choice." Gray asserts that 'all law is judge-
made law’.
In India article 141 of the Constitution gives a constitutional status to the theory of
precedent in respect of law declared by the Supreme Court. Precedents which
enunciate rules of law form the foundation of administration of justice in India. It is
not the ratio decidendi (reasons for deciding) of a judgment alone which is binding but
the judgment itself is binding. This is particularly true of judgments of appellate courts
where the judges may agree in conclusion but for different reasons. Thus, the apex
court in State of Maharashtra v. Madhavrao rejected the contention that Golak Nath v.
State of Punjab was not binding on the court since there was no majority for any
particular ratio.
In American law, the rule of stare decisis (to abide by precedents where the same
points come again for litigation) is applied less rigidly than in other common law
jurisdictions. This is true with regard to the constitutional function of the U.S.
Supreme Court. A constitutional precedent is less subject to the strict rule of stare
decisis than a precedent which may be altered by legislation. The rule of stare decisis
is defended on the ground that it is conducive to legal certainty. But strict adherence to
precedent makes the law stale and static. Precedent is gradually being released from
the fetter of absolutism.
Ratio decidendi roughly denotes the rule of law applied by and act on by the court, or
the rule which the court regards as governing the case. The traditional theory regards
the binding part of the rule of a decision as the ratio in relation to the matter actually
decided. The remainder is obiter dicta.
Ratio decidendi refers to the legal reasoning or principle upon which a court’s
decision is based and which forms the binding precedent for future cases. It is an
essential part of a judicial decision that is necessary to resolve the dispute at hand. It
comprises legal reasoning given for the decision and forms an analytical legal
principle that must be followed in future cases with similar facts.
Obiter dicta or obiter dictum are statements made by a judge that are usually
philosophical interpretations by judges and are not the actual legal citing required to
be included and used as a precedent. These statements are not essential to the decision
reached in the case. They are passing remarks, comments, or observations made by the
judge on some legal issues that do not directly affect the case outcome. Obiter dicta do
not form a binding precedent and are not legally binding on future cases. They are
opinions expressed by the judge that may be persuasive but are not necessary to the
decision reached in the case.
Keshavananda Bharati vs State of Kerala (1973)
In this landmark case, the Supreme Court of India laid down the principle of the basic
structure of the Constitution. The ratio decidendi of this case was that the Parliament
could not amend the basic structure of the Constitution. The obiter dicta of this case
included observations on the scope of the amending power of the Parliament.

Justice
Justice operates at two different levels, distributive justice and corrective justice.
Distributive justice works to ensure a fair division of social benefits and burdens
among the members of a community. It serves to secure a balance or equilibrium
among the members of society.
Corrective justice refers to the function of courts to apply justice in its corrective
sense. In a fair legal system, there are procedural or other rules which give each party
an equal opportunity of presenting his case and calling evidence and to prevent
judicial prejudice in favour of either.
By natural or moral law is meant the principles of natural right and wrong—the
principles of natural justice, if we use the term justice in its widest sense to include all
forms of rightful action.
 Purpose Of Law:
1. Maintaining order
2. Delivering justice
3. Defining what is right and what is wrong
4. Punishing wrongdoers
5. Establishing a code of conduct
6. Setting down procedural rules
According to Roscoe Pound there are four purposes of law. The first purpose of law is
to maintain law and order within a given society and that has to be done at any cost.
The second purpose of law is to maintain status quo in society. The third purpose is to
enable individuals to have the maximum of freedom to assert themselves. The fourth
purpose of law is the maximum satisfaction of the needs of the people.
Features Of Law:
1. Universality – Universalists believe everyone is subject to the same
legal standards.
2. Enforceability – Without enforceability, there would be consequence
for non-compliance in which case laws would be merely taken as
directives or moral guidelines.
3. Clarity – Laws must be clear. Something which is not clear cannot be
taken as law.
4. Stability – Law should be stable and not subject to frequent changes.
5. Adaptability – Law is dynamic and it should be adaptable to changing
societal values, technological and scientific advancements, and
contemporary challenges.

Difference Between Law and Justice

 Law: Law refers to a system of rules and regulations created and enforced by
governing bodies to regulate behaviour and maintain order in society. Laws are
formalized and codified, and they dictate what is permissible and what is not.
 The focus of law is on the enforcement of rules and procedures. Laws can vary
from one jurisdiction to another and may not always reflect moral or ethical
considerations.
  Laws are written, codified, and enforced by state mechanisms. They can be
rigid and may not always account for individual circumstances or moral
considerations.
 Justice: Justice is a broader ethical concept that refers to fairness, equality, and
the moral principles of right and wrong. It encompasses the idea of giving each
individual their due and ensuring that everyone is treated fairly and equitably.
 The focus of justice is on achieving fairness and equity. It seeks to ensure that
individuals receive appropriate treatment based on their circumstances and the
context of their actions.
 Justice is often more fluid and subjective. It may involve moral judgments and
ethical reasoning that go beyond legal definitions
Hence, the terms “law” and “justice” refer to two similar yet different concepts. The
ideas of law and justice often go hand-in-hand but refer to two different ideas. Law is
a system of regulations, standards, principles and norms created by a country’s
government in order to regulate the life and the actions of the citizens. Laws are found
in written codes and are enforced by the government and its bodies, including security
forces, police, judiciary, etc. Conversely, justice is a more abstract concept based on
the idea of equality of rights, and fairness. All laws should be based on the idea of
justice and should be implemented and enforced in a just way without discrimination
of sex, gender, age, colour, race, religion, language or any other status.
While law aims to promote justice, it does not always achieve it. There can be
instances where laws are unjust (e.g., discriminatory laws), and therefore, legal
decisions do not always align with the principles of justice.

Difference Between Law And Morality

 Law: As previously defined, law is a system of rules established by a
governing authority that mandates certain behaviours and prescribes penalties
for violations.
 Laws are created by legislative bodies, government authorities, and judicial
systems. They are documented and accessible, providing a clear framework for
legal conduct.
 Laws are enforced by the state through legal mechanisms, such as courts and
law enforcement agencies. Violations of law result in penalties or sanctions.
 Laws can be rigid and are often slow to change, requiring formal processes for
amendment or repeal. They can also be inconsistent or outdated.
 Roscoe pound said that morals are of individual and relative application
whereas legal rules are of general and absolute application.
  Morality: Morality refers to a set of ethical principles or values that govern an
individual's behaviour and decision-making. It is often shaped by cultural,
religious, and personal beliefs about right and wrong.
 Morality is typically derived from cultural norms, traditions, philosophical
reasoning, and personal beliefs. It may not be formally codified and can vary
significantly between individuals and societies.
 Moral principles are generally enforced through social norms, community
expectations, and personal conscience. Violations of moral standards may lead
to social disapproval or internal guilt, but they may not result in legal
consequences.
 Moral values can be more dynamic and subject to change based on societal
evolution, personal beliefs, and philosophical discourse.
There can be conflicts between law and morality. A law may be legal but considered
immoral by some (e.g., laws permitting discrimination), and individuals may feel a
moral obligation to disobey unjust laws (civil disobedience).

Schools Of Law
1. Analytical School of law (+ve / imperative school) - Law as it is in contrast of
what the law ought to be
2. Natural School of law – Law ought to be
3. Historical School of law
4. Sociological School of law (more into empirical)
5. Realistic School of law (an advancement of sociological school)
6. Philosophical School

Imperative School of Law

 According to Salmond: “Imperative law means a rule which prescribes a
general course of action imposed by some authority which enforces it by
superior power either by physical force or any other form of compulsion”.
 It is in the very nature of law to be imperative, otherwise it is not law but a rule
which may or may not be obeyed. Imperative laws have been classified with
reference to the authority from which they proceed. They are either Divine or
Human.
 Divine laws consist of the commands imposed by God upon men and they are
enforced by threats of punishment in this world or in the next world.
 Human law consists of imperative rules imposed upon men

Natural School of Law

  According to Salmond” By natural law or moral law is meant the principles of
natural right and wrong- the principles of natural justice if we use the term
justice in its widest sense to include all forms of rightful action.” Natural Law
has been called divine law, the law of reason. It is called the command of God
imposed upon men.
 It is unwritten law and not written on brazen tablets or pillars of stone but by
finger of nature in the hearts of men.
 The Natural school of law believes that laws are a set of rules or moral
principles which apply universally to all human beings and it does not change
over time.
 Natural laws are universal, unchanging and discoverable through reason and
they serve as a standard against which human made laws can be judged, in
simple terms natural law is derived from a higher often divine source and it
reflects the moral order of the universe
 Natural law has moral foundation with natural lawyers emphasizing that laws
must be based on reason should be aligned with the concept of justice.
 Natural law provides a basis for critiquing human made laws (positive laws)
that are unjust or immoral. If a positive law conflict with natural law it may be
considered invalid or unjust.

The case of R v Dudley and Stephens (1884) is a famous legal case in English law
that addresses the issue of necessity as a defence to murder. The case is significant for
its exploration of moral and legal principles, particularly concerning survival
situations.
Facts of the Case:
* In 1884, four men, Thomas Dudley, Edwin Stephens, Edmund Brooks, and Richard
Parker, were stranded in a lifeboat in the South Atlantic Ocean after their yacht, the
Mignonette, sank during a storm.
* They were without food and water for several days, and after about 20 days, Dudley
and Stephens decided to kill the youngest and weakest member of the group, Richard
Parker, who was a 17-year-old cabin boy, in order to survive by eating his flesh.
* Dudley and Stephens argued that this was a necessary act to save their own lives.
Brooks did not participate in the killing but did consume Parker's flesh.
Legal Proceedings:
* Upon their rescue and return to England, Dudley and Stephens were charged with
murder. The case was brought before the courts, and the key legal question was
whether the necessity of survival could be a valid defence for murder.
* The case was heard in the High Court of Justice, and the defendants argued that their
actions were justified by the extreme circumstances.
Judgment:
* The court ruled that necessity is not a defence to a charge of murder. The rationale
was that allowing such a defence would lead to dangerous precedents where the value
of human life could be diminished.
* Verdict: Dudley and Stephens were found guilty of murder. They were initially
sentenced to death, but their sentences were later commuted to six months in prison by
the Crown.
Legal and Moral Implications:
* Legal Precedent: The case established the principle that necessity cannot justify
taking an innocent life, even in extreme survival situations. The court emphasized that
human life must be protected by law, and that no one has the right to decide whose life
should be sacrificed for another's survival.
* Moral Debate: The case also sparked significant moral and ethical debate, as it
raises questions about the limits of legal rules in extreme situations and the conflict
between legal and moral obligations.
R v Dudley and Stephens remains a key case in legal studies, especially in discussions
on the defense of necessity, and it has had a lasting impact on the understanding of
criminal law.

Favor of Natural Law

 UNIVERSAL NATURE –
The inherent moral principles of equality, justice, liberty and fraternity, etc.,
apply to all human beings regardless of culture or legal system. This universal
nature promotes common understanding of justice fostering global ethical
standards.
 FOUNDATION FOR JUSTICE –
Natural law provides a moral foundation for evaluating and critiquing positive
laws.
It allows individuals and societies to question unjust laws and advocate for
legal reforms that align with ethical principles, ensuring that laws serve the
common good.

 HUMAN DIGNITY –
Natural law emphasizes the intrinsic value and dignity of every person.
By grounding legal principles in human nature and rights, it promotes respect
for individuals and protects against abuses of power and discrimination.
  FLEXIBILITY AND ADAPTABLITY –
Unlike, rigid nature of positive laws, natural laws are flexible in nature that are
prone to change with respect to societal values and circumstances. It allows
legal systems to evolve to enforce justice.

 ENFORCEMENT OF MORAL RESPONSIBILITY –

Natural law encourages individuals to act according to their conscience and
moral reasoning. This fosters a sense of personal responsibility and ethical
behavior, as people are guided by an internal sense of right and wrong rather
than merely following legal dictates.

Against Natural law

 SUBJECTIVITY –
There are various diverse interpretations of morals from culture to culture and
individual to individual. This creates inconsistency and conflict over what law
constitutes.

 UNCODIFIED AND UNSTABLE –

Natural laws are not codified hence this creates an unstable situation of
decision of punishments and outcomes of legal proceedings.
It lacks a proper definition, statute and mechanism of enforceability

 MISINTERPRETATION –
The variation morals make natural laws open to interpretations making it
inconsistent in legal contexts.
This often leads to disagreements about what law should be, resulting in
potential justice.

 CONFLICT WITH POSITIVE LAW –

Natural law creates tension when in opposition with positive law.
It can undermine the authority of legal systems complicating the process of
enforcement.

 LACK OF EMPIRICAL BASIS –

These laws have a lack of legal context and this causes natural laws to produce
unpredictable outcomes. It lacks the experience as offered by judicial
precedents in positive law.

Positive Law
 It is basically human made law. It includes statutes laid down by legislatures or
rules and regulations by human institutions.
  Black’s Law dictionary defines positive law as “law actually and specifically
enacted or adopted by proper authority for the government of an organized
society.”

Favor of Positive Law

 OBJECTIVE NATURE – (There exists a clear and structured framework of
rules and regulations)
The laws under positive school of law are codified and its details are made out
very specific in nature which are not prone to change. It remains as it is, this
fosters stability.
 EASY ENFORCEABLITY –
Due to objective nature of positive laws, the enforceability does not remain an
issue here because of the apt specifications made in these laws. There is a
proper enforcement mechanism such as courts and law enforcements agencies
which ensure compliance.
 ADAPTABLITY –
Positive law can be amended and updated to reflect changing societal values
and needs. This adaptability allows the legal system to evolve in respect to new
challenges and advancements in society.
 NO CONFLICT OF INTEREST –
Firstly, the creation of positive laws is done through democratic process
reflecting will of the people and the arguments which revolve around positive
laws have no conflict of interest because of the nature of independence of
judiciary.

 RATIONAL NATURE –
There is separation from morality. For example: In the case of R. V. Dudley and
Stephen (1884), it was held that Dudley and Stephen were liable for murder
irrespective of the doctrine of necessity. This helps in bringing out rational
decisions which maintains social orders and prevents chaos.

Against Positive Law

 IGNORANCE OF MORALITY –
Positive laws may not always align with ethical or moral standards. Certain
laws can be enacted that are unjust or discriminatory leading to conflict
between legal obligation and moral principle.

 RISK OF TYRANNY –
 The unjust creation of laws that conflict with moral principles can lead to
misuse of power given to authority thus creating a social order of tyranny.

 OVEREMPHASIS OF CODIFICATION –
A strict focus on codified statues may overlook customary laws or unwritten
norms that play a crucial role in many societies. This can lead to a
disconnection between the law and the lived experiences of individuals.

 RIGID NATURE –
Positive laws are rigid in nature and have a slow tendency to adopt to societal
changes. It can offer result in outdated laws that do not reflect the present
norms and societal values.

 INCONSISTENT NATURE –
Positive laws are not universal in nature because of the varied jurisdiction in
each country. Laws have been laid out differently for different sets of
punishments. This lacks uniformity and results in inconsistent form of justice at
various countries.

Historical School of Law

Historical school defines law not as a set of rules imposed from above but as a living,
evolving expression of a society’s historical and cultural identity shaped by customs
and social habits overtime.
So, in their view law has a customary origin. It is found in the ‘VOLKSGEIST’.
VOLKSGEIST – Carl von Savigny proposed this word it means “common spirit or
consciousness of the people in a given society”
Divine laws reveal that the sole sovereign is Almighty or the Creator and the
recipients are the Man kind or the Creations as a whole. The readers or the
representatives have a specific identity as Believers.
Natural law – Law is the dictate of reason.
Positive law - Law is the command of sovereign.
Historical law- Law is customary or custom.

Sociological School of Law

The Sociological definition of law focuses on law as a product of social forces and
conditions. It examines how law is shaped by and, in turn, shapes society. Unlike the
idealistic approach, which stresses moral principles, or the positivist view, which sees
law as a set of commands, the sociological approach is concerned with the function of
law in real-world social contexts.
* Law as a Social Institution: The sociological school views law as a reflection of
society’s needs, customs, and social norms. Laws evolve from the collective social
experiences and are a response to changing social conditions.
* Law in Action: Rather than focusing on what laws are written, sociological theorists
are interested in how laws operate in practice—how they affect and are affected by the
behaviour of individuals and institutions in society.
* Dynamic and Changing: Sociological theorists emphasize that law is not static. It
must adapt to the social, economic, and cultural changes in society to remain effective.
Law is seen as a tool for social engineering, used to shape societal behaviour.

Realistic School of Law- law is not social or academic. It’s found in courts and in
reality
Philosophical School of Law- concerned with philosophers

Functions Of Law:
The primary purpose of law is to maintain social order, protect individual rights and
freedoms and ensure justice within society. Natural law theorists stress that positive
law or human-made law should align with the ideals such as promotion of the
common good, protection of natural rights, establishment of morally just society,
ensuring that powers of the state are no used arbitrarily and there is a limitation on
state power. The positive law perspective on the function of law is centred on the
sovereign/state. John Salmond in his leading work on jurisprudence has provided a
comprehensive analysis on the functions of law in society. He enumerates the
following:
o To keep peace in the society.
o To maintain social order.
o To define and enforce legal rights and obligations to provide remedies for
wrongs and ensure justice.
o To guide individual behaviour in the society.
o To provide a system of dispute resolution.
He also agrees that law must define governmental authority and should endeavour to
protect individual freedom. Thomas Hobbes in his magnum opus “Leviathan” has
famously quoted, “Life of a man in the state of nature was brutish, nasty and short.”
List Of Functions:
1. Creating rights, duties and obligations – Law defines rights of the
individuals, also lays down duties/ obligation’s individuals owe to themselves
and to the society. For example, Indian Contract Act. Roscoe Pound- social
engineering theory, defines the term rights. According, to him rights is nothing
but an interest that needs to be recognized, protected and enforced. Interests are
of 3 types- individual, social and state interest, there is always conflict between
these 3 interests. Social interest prevails. Valencia declaration of
responsibilities and human duties. Prof. Herald Laski- relationship between
rights and duties, one's right implies one's duty to recognize similar right of
others. Understanding that the right exercised by one should not infringe upon
others right. One should exercise his rights for the promotion of social good. As
the state guarantees and protects the right of everybody one has the duty to
support the state

2. Regulating social and individual conduct – The BNS provides a

comprehensive code defining various offences and punishments aimed at
regulating individual conduct. For example, Section 10 of the BNS defines
murder creating a clear standard for acceptable behaviour and providing for the
consequences for violating this standard.

3. Protecting rights and preserving social order – Laws help maintain peace
and stability within society. For example, the BNSS lays down the procedure
for the maintenance of criminal justice in the society by establishing procedure
for arrest, trial and punishment. It helps maintain peace, social order and
stability within society.

4. Protecting rights and freedoms – Laws protect individual rights and freedom
against encroachments. For example, fundamental rights enshrined in Part 3 of
the Constitution of India guarantee equality (Article 14), right to freedom of
speech and expression (Article 19) and the right to life and personal liberty
(Article 21). Article 32 and 226- writ petitions. Art 32- in supreme court, gives
power to approach SC in case of abrogation of fundamental rights. Art 226- in
high court, gives power to approach HC in case of abrogation of fundamental
rights and legal rights- Art 226 has wider jurisdiction than Art 32

5. Resolving disputes – Laws provide mechanisms for resolving conflicts

between individuals or entities. For example, the BNS and the BNSS.

6. Creating a system of enforcement of rights and duties.

 7. Establishing a structure of government – Law defines the structure and
powers of government institutions.

8. Facilitating justice – Laws are designed to promote justice and fairness in

society. For example, the RTI.

The functions of law in any legal system, for example, the Indian legal system, are
integral to ensuring a just and orderly society. Each function plays a crucial role in
protecting rights, regulating conduct, resolving disputes and establishing a fair,
responsive governmental structure. Taken together, these functions constitute an
atmosphere of ‘rule of law’ which is a cornerstone of constitutional democracy in
India.

CIVIL LAW SYSTEM: Major trust on codification.

COMMON LAW SYSTEM: Law is developed through precedents.

Classification of Law
A LAW: A specific legal rule or statute among many. It emphasises individual laws
within a broader legal system. eg- A law against theft
THE LAW: The law denotes the entire body of law in a particular jurisdiction or the
concept of law as a whole. It emphasises all legal rules and principles. For example,
property law, family law, etc.

NATURAL LAW
Natural law is a philosophical theory that posits the existence of a set of laws or moral
principles inherent in human nature, which are discoverable through reason and
universal to all humans. It suggests that certain rights and moral values are intrinsic
and not contingent upon human-made laws (legislation). Natural law holds that these
principles are derived from nature, reason, or divine authority, and they govern human
conduct, regardless of time or culture.
During the Enlightenment, philosophers like John Locke and Jean-Jacques Rousseau
further developed the idea of natural law and natural rights, influencing modern
political theory and the development of constitutional government. Locke's theories of
natural law and rights were foundational to the development of the U.S. Constitution.
Eg- human rights, abolition of slavery
POSTIVE LAW
Positive law refers to laws that are created, enacted, and enforced by human
authorities, such as governments or legislative bodies. These laws are distinct from
natural law, as they are specifically made by humans to regulate society, often
reflecting the needs, values, and decisions of a particular political system or society.
Positive laws may vary across different cultures and legal systems and are considered
valid because they are officially enacted, regardless of their moral content.
The philosophy of legal positivism supports the view that law is the command of a
sovereign or legislature and must be obeyed because it is enacted by authority, not
because it is inherently moral or just. Prominent legal positivists like John Austin and
H.L.A. Hart argue that law is a system of rules created by social institutions and must
be analyzed without reference to morality.

PUBLIC LAW
It governs the relationship between individuals and the state, like Constitutional law
and administrative law. For example, the BNS, the BNSS, etc.
Public law is a branch of law that governs the relationship between individuals (or
entities) and the government, as well as the structure and operations of the government
itself. It focuses on issues that affect the general public and includes legal matters
where the government is acting in its official capacity, either as regulator, enforcer, or
protector of public interests. Public law aims to regulate the exercise of power by
government institutions and safeguard the rights of citizens.

PRIVATE LAW
It governs the relationship between individuals and private entities. For example, the
Indian Contract Act 1872, Sale of Goods Act 1930, etc.
Private law refers to the branch of law that governs relationships between individuals
or private entities, as opposed to the state or government. It deals with legal matters
that primarily affect private parties and is focused on resolving disputes, establishing
rights, and regulating obligations between individuals or organizations. Unlike public
law, which involves the government, private law primarily regulates personal,
commercial, or civil interactions.

SUBSTANTIVE LAWS
They are laws which define rights and duties, such as crimes and punishments in
criminal law, or rights and obligations in civil law.
Substantive law refers to the body of law that defines and regulates the rights and
duties of individuals, as well as the legal consequences of actions. It establishes the
framework for legal relationships and the obligations people must adhere to, including
what conduct is considered lawful or unlawful. Substantive law provides the
foundation for how legal claims are brought, what remedies are available, and the
penalties for violations of those laws.
Eg- IPC

PROCEDURAL LAWS
They are laws which provide the method and means of enforcing rights and obtaining
redress. They are also called remedial laws.
Procedural law refers to the set of rules and regulations that govern the process
through which legal rights and obligations are enforced in the legal system. It outlines
the steps and procedures that courts and parties must follow in legal actions, ensuring
that justice is administered fairly and consistently. Procedural law is distinct from
substantive law, which defines the actual rights and duties of individuals.
Eg- CrPC

INTERNATIONAL LAW
 According to Salmond, international law is essentially a species of
conventional law and has its source in international agreement. It consists of
those rules which Sovereign states have agreed to observe in their dealings with
one another.
 International agreements are of two kinds. They are either express or implied.
Express agreements are contained in treaties and conventions. Implied
agreements are to be found in the custom or practice of the states. In a wide
sense, the whole of international law is conventional. In a narrow sense,
international law derived from express agreement is called the conventional
law of nations.
 International law is divided into two classes: Public International law and
Private International law.
 Public international law is that body of rules which governs the conduct and
relations of the states with its subjects.
 International convention – Vienna convention on diplomatic immunity, 1961,
Rome Statue, 1998
 National ratification of the convention – The Diplomatic Relations (Vienna
convention) Act, 1972
MUNICIPAL LAW
 It is often contrasted with international law in the court proceedings wherein
the court might be interested in knowing the status of relevant provisions under
international law, for example, in the grey areas like cyber laws, AI laws, as
well as in traditional areas such as human rights, environment, cross-border
disputes and the like. Municipal laws are also called domestic or national laws.
 Municipal law can be divided into two classes: public law and private law.
 Public law is divided into three classes: constitutional law, administrative law
and criminal law.
 Constitutional law determines the nature if the state and the structure of the
government. It is superior to the ordinary law of the land.
 Administrative law deals with the structure, powers and functions of the
organization of administration, the limits of their, the methods and procedures
followed by them and the methods by which their powers are controlled
including the legal remedies available to persons whose rights have been
infringed.
 Criminal law defines offences and prescribes punishments for them. It only
prevents crimes but also punishes the offenders, It is necessary to maintain
order and peace of law.

CRIMINAL (PUBLIC) LAW

 In criminal cases, the offence has been committed against the state (stake
holder is state, public interest is important).
 Public law is grounded in collected welfare common good, DPSP’s.
 Private law is grounded in individual autonomy consent, it is more aligned with
liberal values, the state shouldn’t poke their nose in the matter of the private
individual.
 The aim of Private law is compensation, and Criminal law is deterrence
 A criminal law must be associated with public.

CIVIL (PRIVATE) LAW

 The theory behind civil law is people showed know laws beforehand.
 In civil law most of the cases the codified because it makes certainty but in
civil law, the downside is that the codifying makes it less dynamic. It is not
easily amendable. It loses the purposes that law has to dynamic.
 In civil law, seeking compensation is the aim. In criminal law it is seeking
punishment. Jail is not the rule in civil law.
  Violations of public law such as crimes or constitutional breaches, threaten the
fundamental order and security of the society. This challenged the state
authority, requiring a firm response to maintain state’s power and legitimacy.

CUSTOMARY LAWS
According to Salmond “any rule of action which is actually observed by men- any rule
which is the expression of some actual uniformity of some voluntary action”.
Customary Laws refers to practices that have gathered the force of law within a
particular community through consistent and long term uses. Many of these customary
laws are not written or codified but are considered binding by the community.
1.Schedule 6 of the Indian Constitution recognizes tribal customs. 2. Nagaland
customary law and procedure act, 1990.
Some say that customs are valid law. There are others who say they are simply a
source of law. The former view is that jurists of the historical school and the latter
view is that of the positivists.
1. Forest dwellers rights act, 2006
While some customary laws may have religious origins not all do. Some customary
laws are based social economic or geographic factors rather than religious one’s. For
e.g. Reet Marriage in Himachal Pradesh, where a woman can marry a deceased
husband’s brother is recognized by courts, but is not rooted in religion. Other
examples Jhum cultivation

Case –In State of Bombay v. Narasu Appa Mali,1952

A tribal community in Meghalaya follows a custom where only female members can
inherit land. A male member challenges this practice in court.
If the custom has certainty, continuity, uniformity, conscious acceptance, antiquity,
peaceful enjoyment then the said custom acquires the force of law.

PERSONAL LAWS
Personal laws govern individuals based on their religious or cultural identity. These
laws are heavily influenced by religion.
E.g. Hindu Marriage Act, 1955, Muslim Personal Law (shariyat) Application Act,
1937 Indian Christian Marriage Act, 1872 Parsi Divorce and marriage act, 1936 Hindu
Adoption and Maintenance Act, Special Marriage Act, 1954
In India personal laws cover areas such as marriage, divorce, inheritance, succession
and adoption.
CODIFIED LAWS
Codified laws refer to laws that have been systematically collected and written down
in a formal, organized manner, typically within a legal code or statute book. These
laws are explicitly defined and published by a governing authority to provide a clear
legal framework that is accessible to the public and enforceable by the judiciary
Indian Penal Code (IPC): India's comprehensive criminal code, established during
British rule in 1860, and still in use today

UNCODIFIED LAWS
Uncodified laws refer to legal principles, rules, or norms that are not formally written
in a single comprehensive document. Instead, they are derived from various sources
such as judicial decisions, customs, conventions, and statutes that may not be
consolidated into a codified legal framework. Uncodified legal systems often rely on
historical precedents and traditions to guide legal decisions.

LEGISLATION
Legislation refers to the process of making or enacting laws by a governing body,
typically a legislature (such as a parliament or congress). The term can also refer to
the body of laws and statutes that have been formally enacted through this process.
Legislation is a critical function of the government, as it provides the legal framework
within which society operates, outlining rights, responsibilities, and prohibitions. The
Companies Act, 2013 (India) governs the incorporation, responsibilities, and
functioning of companies in India.

PRECEDENT
A precedent refers to a legal principle or rule that is established in a previous court
decision and used as a basis for deciding subsequent cases with similar facts or issues.
Precedents are a key component of common law systems, where courts rely on past
judicial rulings to ensure consistency and predictability in legal decisions. Donoghue
v. Stevenson (1932): A key case in UK law that established the modern concept of
negligence, creating a precedent for future personal injury cases.

SOURCES OF LAW
In the evolution of the human society, it appears to be beyond doubt that custom arose
first, law came later. Law denotes a more definitive organisation of human society
with some kind of power structure established. Customs arise whenever a few human
beings come together, as no association of human beings can exist permanently
without adopting consciously or unconsciously, some definite rules governing
reciprocal rights and obligations.
The Historical Jurists attached a much greater importance to custom. They held that
all early law was customary, and that the function of legislation is limited to
supplementing and redefining custom. According to Savigny, the real bases of all
positive law is to be found in the general consciousness of people (Volksgeist). The
source of law is not the command of the sovereign, not even the habits of a
community, but the ‘instinctive sense of right possessed by every race’.
Meaning and Denition: Custom is a habitual practice followed by a community as a matter of right. •
Origin of Custom: Customs arise from societal needs and repeated practices. They predate legislation
and serve as an early source of law.

• Requirements of a Valid Custom: 1. Antiquity: Must be long-standing. 2. Certainty: Clearly dened

and consistent. 3. Reasonableness: Aligns with societal values and fairness. (In Produce brokers
company V Olympia oil and cake company 1916, the English court dened a reasonable custom as one
that is fair and proper and such as reasonable, honest and fair minded person would accept.) 4.
Continuity: Followed without interruption. 5. Conformity to Statutory Law: Must not contradict
existing law. 6. Morality: uphold moral standards of society and public policy, and can not consist of
unethical or immoral practices just because they’ve persisted for a long time. In 1819, Bombay hc
banned adoption of girls for the reason to train them as dancers in temples. 7. Peaceful enjoyment:
must have been followed without serious challenge or objection. Constant disputes or objection to a
practice means that the custom lacks acceptance within the community.

• Kinds of Custom:

1. General Custom: Observed universally across the country. Ex: saptapadi (seven steps around the re
in hindu weddings) or dowry in earlier ages

2. Local Custom: Limited to a specic region, group or community. Ex: khap panchayat practices,
matrilineal inheritance in Kerala, hijab system for muslim women

3. Legal Custom: Recognized and enforced by courts. Ex: Nagaland customary law and procedure act
1990, rest in Himachal Pradesh

4. Conventional Custom: Derives its authority from agreements or mutual consent. Ex: trade usages
in contracts, customs of agricultural tenancies

• Transformation of Custom into Legislation: Codication converts customs into statutory law for
clarity and enforcement. Ex: hindu marriage act, 1955 or hindu succession act, 1956

• Legal Status in India: Indian law aacknowledges customs, provided they meet the requirements of
validity. ***Refers to practices that have gathered the course of law within a particular community,
through consistent and long term uses. Many of these laws are not written or codied, but are
considered binding by the community. When it is codied or recognised by the state, it becomes a
legal custom. Ex: Nagaland customary law and procedure act 1990 While some customary laws may
have religious origin, not all do. Some are based on social, economic or geographic factors rather
than religious ones. Ex: Reet marriage in Himachal Pradesh, where a woman can marry a deceased
husbands brother, is recognised by courts. But it didn’t originate from religious texts

LEGISLATION
The term 'legislation' is derived from Latin words, "Legis" meaning law and "Latum"
which means "to make" or "set". Thus, the word 'legislation' means 'making of law'.
Legislation is that source of law which consists in the declaration of legal rules by a
competent authority. The most powerful and independent method of enacting laws is
through legislation. It is the only source with the authority to pass new laws, repeal
old ones, and amend existing laws.
Gray pointed out that legislation includes "formal utterances of the legislative organs
of the society". According to Salmond: "Legislation is that source of law which
consists in the declaration of legal rules by a competent authority". Salmond noted
that legislation is the type of source of law that entails the proclamation of legal rules
by an appropriate and competent body. He claims that there are three different
meanings associated with the term "legislation" as a source of law. In its strict sense, it
is that source from where the rules of law declared by competent authority are framed.
In its widest sense, legislation includes all methods of law-making. In this sense,
legislation may either be (i) direct, or (ii) indirect. The law declared by legislature is
called direct legislation whereas all other actions through which law is made are
species of indirect legislation. In this third sense, legislation encompasses every
expression of the will of the legislature whether making law or not. According to
Austin: "There can be no law without a legislative act".
Classification of legislation
Salmond divides legislation into two types:
1. Supreme Legislation- When a law is passed by a supreme authority or a
sovereign law-making body, such as the legislature of an independent and
sovereign state, it is referred to as supreme legislation. It is supreme because no
other authority has the power to revoke, alter, or regulate it. Such laws cannot
be revoked or overturned by another legislative body.
2. Subordinate legislation- Subordinate legislation on the other hand, is that which
comes from any authority other than the sovereign power. It is dependent on a
higher power in order to remain valid and to continue its existence. India's
Parliament is endowed with supreme legislative authority. But there are other
organs which have powers of subordinate legislation.
Delegated Legislation
Although the executive's main duty is to enforce the laws enacted by the Legislation,
still, its departments have the authority to make rules for itself. Subordinate law
includes legislation passed by the executive branch. Delegated legislation is, any law
passed by an authority other than the legislature. It means the rules, orders or bye-laws
made by the executive authorities under the law passed by the Parliament. In simple
words, when Legislature bestows the law-making power on some other body, then the
legislative power is said to be delegated and this is known as delegated legislation.
Delegated legislation should not to be mistaken with the executive legislation. The
former refers to the laws made by the authorities other than those to whom the
Legislature has delegated its legislative authority. The latter refers to the legislation
passed by the President and the Governor under Articles 123 and 213, respectively, of
the Indian Constitution. These laws are in the form of Ordinances which have the
force of law. Such Ordinances are issued by the respective executive heads on the
ground of urgency when Legislature is not in session and they cease to have effect if
not ratified within six weeks after the assembly of the Legislature. The source of
delegated legislation is always the Act of the Parliament but the source of the
executive legislation is a constitutional provision.
The different kinds of Subordinate Legislation include:
1. Colonial Legislation - The Imperial legislature, namely the British Parliament
granted varied degrees of limited autonomy to the British colonies. With the
use of this power, the colonies had some degree of legislative authority. But the
Imperial legislature had the authority to repeal, amend, or replace the laws
created by the colonial administrations. However, after the passing of the
Statute of Westminster of 1931, the self-governing Dominions under the Crown
have been given power to make law independently subject to nominal
supremacy of the British Crown.
2. Executive Legislation - The Legislature may delegate its rule-making power to
certain departments of the Executive. The rules made in pursuance of this
delegated power have the force of law. They may, however, be repealed or
superseded by the legislature as and when deemed necessary to do so. In India,
the Executive has powers to make bye-laws on matters such as deciding the
suitable place for market, fixing of prices, etc.
3. Judicial Legislation - In certain cases, rule-making power is delegated to the
judiciary and the superior courts are allowed to make rules for the regulation of
their own procedure. This is also known as judicial legislation and it should not
be mistaken with judicial precedents where the Court formulates a new
principle of law via its judicial decision. The Constitution of India has
conferred the power of rule-making to the Supreme Court and the High Court
under Articles 145 and 227 respectively.
4. Autonomous Legislation - The State may occasionally allow private entities or
bodies, such as universities, companies, corporations, etc. to make bye-laws for
controlling the conduct of their business. These bye-laws are formulated in
 exercise of the rule-making power granted to these bodies by the State. For
example, Railways have their own rules for the conduct of their business.

How a Bill is Converted into Parliamentary or Legislative Act in India?

A bill becomes an act in India after it passes through a series of stages and receives the
President's assent:
1. Proposal and introduction: A Member of Parliament (MP) drafts a bill or
suggests changes to an existing law. The bill is then presented in either the Lok
Sabha or the Rajya Sabha, depending on the type of bill.
2. First reading: The bill is introduced by an MP or Minister, who explains its
objectives and provisions. No discussion or voting takes place.
3. Second reading: The bill is examined and debated by MPs. Amendments can
be suggested.
4. Committee stage: The bill is examined in detail by a select committee, which
can also amend its provisions.
5. Third reading: The bill is voted on.
6. President's assent: The bill becomes an act only after the President gives
assent to it.
Some other things to note about the process of converting a bill into an act include:
 Money bills, which are bills related to financial matters, can only be introduced
in the Lok Sabha. The President's prior recommendation is required for the
introduction of a money bill in the Lok Sabha.
 The Rajya Sabha must return a money bill passed by the Lok Sabha within 14
days.
 The bill is published in the Gazette of India after its introduction

Advantages and Disadvantages of Legislation as a Source of Law

Advantages:
Provides Clarity: Legislation offers clear and specific rules, making it easier for
individuals to understand their rights and obligations.
Reflects Public Policy: Laws enacted through legislation often reflect the current
societal values and public policy, ensuring relevance and alignment with societal
needs.
Uniformity: Legislation creates uniformity in laws across a jurisdiction, promoting
consistency and predictability in legal outcomes.
Flexibility: Legislatures can amend or repeal laws to adapt to changing circumstances,
allowing for flexibility in addressing evolving societal needs.
Disadvantages:
Rigidity: Legislation can be slow to adapt to changing societal norms and may
become outdated, leading to potential gaps or inconsistencies in the law.
Complexity: Statutes can be complex and difficult for the average person to
understand, leading to potential confusion and misinterpretation.
Potential for Bias: Legislative processes may be influenced by special interest groups,
leading to laws that favour specific interests over the general public.
Overregulation: Excessive legislation can lead to overregulation, stifling innovation
and imposing unnecessary burdens on individuals and businesses.

PRECEDENT OR CASE LAW

According to Salmond, “A precedent is said to be a judicial decision which contains
its principles. The stated principle which thus forms its authoritative element is called
the ration decidendi. The concrete decision is thus binding between the parties, but it
is the abstract ration decidendi which alone has the force of law as regards the world
at large.”
Keeton defines judicial precedents as “judicial decision to which authority in some
measure has been attached.”
After independence, when Constitution came into force, Article 141 was enforced,
which strengthened the status of judicial precedents in the Indian legal system. Article
141 states that the law declared by the Supreme Court shall be binding on all courts
within the territory of India.
According to Salmond, a precedent is a judicial decision that contains a principle. This
principle has authority, or the force of law, which will bind the courts in their
subsequent judgements. So, this authoritative principle in a judicial decision is called
the ratio decidendi.
According to Salmond, Authoritative precedents are those that judges are bound to
follow regardless of whether they agree with the principle or not. It established a set of
definite rules and is backed by legal force that binds other courts to follow it.
Persuasive precedents are judicial precedents that merely have an element of
persuasion attached to them. They do not have any legal force or authority that
obligates the courts to follow them, rather it is left to the discretion of the courts to
take into consideration the effect of such precedents.
In the case of Conditional Authoritative Precedents, the Court can ignore them under
particular conditions. Generally, it is mandatory however under extraordinary state of
affairs, it can be dismissed.
Declaratory precedent is merely an application of a rule of law that already exists.
Original precedent are the ones that create new rules. These form laws for future
because of their current application.

Doctrine of Stare Decisis

The Latin term “stare decisis” is short for the phrase “stare decisis et non quieta
movere”, which translates to “to stand by decisions and not disturb settled matters”. In
India, Article 141 of the Const’n recognises the doctrine of stare decisis. The doctrine
of stare decisis establishes that the subordinate courts are bound to follow the
decisions pronounced by the higher courts while dealing with cases with similar legal
issues. In the case of Minerva Mills v. union of India, the SC said that “certainty and
continuity are the essential ingredients of the rule of law”.
In Sajjan Singh v. the State of Rajasthan, the Supreme Court said:
“Indeed, the Constitution does not place any restriction on our powers to review our
earlier decisions or even to depart from them and there can be no doubt that in matters
relating to the decisions of constitutional points which have a significant impact on the
fundamental rights of citizens, we would be prepared to review our earlier decisions in
the interest of public good. The doctrine of stare decisis may not strictly apply in this
context and no one can dispute the position that the said doctrine should not be
permitted to perpetuate erroneous decisions pronounced by this Court to the detriment
of the general welfare.”

Goodhart’s test: (Material Facts)

In 1929, Goodhart had argued that the ratio of the case must be in the reasons for the
decision and there is no necessary connection between the ratio and the reasons. He
laid down following guidelines for discovering the ratio decidendi of the case:
 Ratio decidendi must not be sought in the reasons of which the judge has
passed the decision.
 The reasons given by the judge are of peculiar importance, for they may furnish
us with a guide for determining which facts he considered material and which
immaterial.
  A decision for which no reasons are given does not necessarily lack ratio,
furthermore, the reasons offered by the court in reading a decision might be
considered inadequate or incorrect, yet the court’s ruling might be endorsed in
later cases- a bad reason may often make good law. It is by his choice.
Thus, ratio decidendi is whatever facts the judge has determined to be the material
facts of the case, plus the judge’s decision based on those facts of the material facts
that the judge creates law.
Goodhart test of ratio is: ratio decidendi = material facts + decision. Goodhart states
that "It is by his choice of material facts that the judge creates law." The Goodhart test
involves taking into account facts treated as material by the judge who decided the
case cited as precedent. The goodhart’s theory is also known as Material fact theory.

Doctrine of Prospective Overruling

The doctrine of prospective overruling represents a significant evolution in legal
jurisprudence, particularly in constitutional law. This doctrine allows courts,
especially higher judiciary bodies like the Supreme Court, to issue rulings that only
apply to future cases, leaving past decisions and actions unaffected.
It stands in contrast to the conventional doctrine of retrospective overruling, where
a judicial decision not only sets new legal precedents but also invalidates past actions
or decisions made under the previously accepted law. The doctrine of prospective
overruling is an essential mechanism to safeguard justice, ensuring that those who
acted under the old law are not unfairly penalised when the law is reinterpreted or
overturned.
The Doctrine of Prospective Overruling allows courts to apply legal decisions only to
future cases, without affecting past actions or judgements made under the old law.
This doctrine ensures that individuals or entities who acted in reliance on a previous
legal rule are not penalized when the law is reinterpreted or overruled. It contrasts
with retrospective rulings, where the new interpretation of the law applies to both past
and future cases.
The doctrine of prospective overruling was introduced into Indian jurisprudence by
the Supreme Court in the landmark case of I.C. Golaknath v. the State of Punjab
(1967). This case marked a turning point in Indian constitutional law, as the Supreme
Court explicitly recognised and applied the doctrine for the first time. The court’s
decision was aimed at preventing chaos and ensuring that individuals who had relied
on previous legal interpretations were not adversely affected by new rulings.

Hierarchy of courts in India

Supreme Court
The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive
original jurisdiction includes any dispute between the Centre and State/s or between
States as well as matters concerning enforcement of fundamental rights of individuals.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate
granted by the High Court concerned in respect of any judgment, decree, or final order
of a High Court, in both civil and criminal cases, involving substantial questions of
law as to the interpretation of the Constitution or any law. The appellate jurisdiction of
the Supreme Court can also be invoked through the residuary power of Special Leave
Petition, which is to be exercised only in cases when any substantial question of law is
involved, or gross injustice has been done. Supreme Court decisions are binding on all
Courts/Tribunals in the country and act as precedence for lower courts. Under Article
141 of the Constitution, all courts in India are bound to follow the decision of the
Supreme Court as the rule of law. Further, Article 142 of the Constitution empowers
the Supreme Court to pass any order as may be necessary for doing complete justice
between the parties. The Supreme Court, has over the years, frequently relied upon
Article 142 to meet the ends of justice, and introduced the concepts of absolute
liability, prospective application of a particular judgment, etc.
High Courts
High Courts have jurisdiction over the States in which they are located. There are at
present, 25 High Courts in India. Predominantly, High Courts can exercise only writ
and appellate jurisdiction, but a few High Courts have original jurisdiction and can try
suits. High Court decisions are binding on all the lower courts of the State over which
it has jurisdiction.
District Courts
District Courts in India take care of judicial matters at the District level. Headed by a
judge, these courts are administratively and judicially controlled by the High Courts of
the respective States to which the District belongs. The District Courts are subordinate
to their respective High Courts. All appeals in civil matters from the District Courts lie
to the High Court of the State. There are many secondary courts also at this level,
which work under the District Courts. There is a court of the Civil Judge as well as a
court of the Chief Judicial Magistrate. While the former takes care of the civil cases,
the latter looks into criminal cases and offences.
Lower Courts
In some states, there are some lower courts (below the district courts) called Munsif’s
courts and small causes courts. These courts only have original jurisdiction and can try
suits up to a small amount. Thus, Small Causes Courts cannot entertain a suit in which
the amount claimed exceeds Rs. 2,000. However, in some States, civil courts have
unlimited pecuniary jurisdiction. Judicial officers in these courts are appointed on the
basis of their performance in competitive examinations held by the various States’
Public Service Commissions.
Tribunals
Special courts or Tribunals also exist for the sake of providing effective and speedy
justice (especially in administrative matters) as well as for specialized expertise
relating to specific kind of disputes. These Tribunals have been set up in India to look
into various matters of grave concern. The Tribunals do not have to follow any
uniform procedure as laid down under the Civil Procedure Code or the Indian
Evidence Act but they have to follow the principles of Natural Justice. The Tribunals
that need a special mention are as follows:
 Income Tax Appellate Tribunal
 Central Administrative Tribunal
 Telecom Disputes Settlement Appellate Tribunal
Alternate Dispute Resolution
An interesting feature of the Indian legal system is the existence of voluntary agencies
called Lok Adalats (Peoples’ Courts). These forums resolve disputes through methods
like Conciliation and Negotiations and are governed by the Legal Services Authorities
Act, 1987. Every award of Lok Adalats shall be deemed to be a decree of a civil court
and shall be binding on the parties to the dispute. The ADR mechanism has also
proven to be one of the most efficacious mechanisms to resolve commercial disputes
of an international nature. In India, laws relating to resolution of disputes have been
amended from time to time to facilitate speedy dispute resolution in sync with the
changing times. The Judiciary has also encouraged out-of-court settlements to
alleviate the increasing backlog of cases pending in the courts.
A brief description of few widely used ADR procedures is as follows:
1. Conciliation: In this case, parties submit to the advice of a conciliator, who talks to
the each of them separately and tries to resolve their disputes. Conciliation is a non-
binding procedure in which the conciliator assists the parties to a dispute to arrive at a
mutually satisfactory and agreed settlement of the dispute.
2. Mediation: A non-binding procedure in which an impartial third party known as a
mediator tries to facilitate the resolution process but he cannot impose the resolution,
and the parties are free to decide according to their convenience and terms.
3. Arbitration: It is a method of resolution of disputes outside the court, wherein the
parties refer the dispute to one or more persons appointed as an arbitrator(s) who
reviews the case and imposes a decision that is legally binding on both parties.
Usually, the arbitration clauses are mentioned in commercial agreements wherein the
parties agree to resort to an arbitration process in case of disputes that may arise in
future regarding the contract terms and conditions.

 A single bench refers to a judicial bench comprising a single judge who

presides over and decides a case. This is a common practice in many legal
systems, including India, where the judiciary operates at various levels.
 A division bench refers to a judicial bench consisting of two judges who hear
and decide cases together. It is commonly used in higher courts, such as the
High Courts in India, to handle more complex or significant legal matters.
 A full bench refers to a judicial bench comprising three or more judges of the
same court who hear and decide cases together. This type of bench is
constituted to address matters of greater legal or constitutional significance or
to resolve conflicting decisions from smaller benches within the same court.
 A Constitutional Bench refers to a special bench of the Supreme Court of
India constituted with a minimum of five judges to decide substantial questions
of law relating to the interpretation of the Constitution or cases of significant
constitutional importance. It derives its authority from Article 145(3) of the
Indian Constitution.

Juristic Works or Legal Scholarship as a Source of Law

Juristic writings, also known as “doctrine,” refer to the scholarly work produced by
legal academics, philosophers and commentators. These writings include textbooks,
treatises, journal articles, commentaries and monographs that analyse, critique and
interpret various aspects of the law. Juristic writings offer a deep exploration of legal
principles, helping to clarify ambiguities, resolve inconsistencies and suggest new
directions for the development of the law.
Unlike primary sources of law—such as legislation, judicial decisions and customary
law—juristic writings do not have binding authority. However, they are often
consulted by judges, legislators and lawyers to gain a deeper understanding of
complex legal issues. Juristic writings can also influence the development of legal
doctrines and principles, particularly when they offer persuasive arguments or
innovative interpretations of existing law.

BASIC CONCEPTS OF LAW AND INDIAN LEGAL SYSTEM

The Indian legal system is primarily rooted in Common Law traditions due to its
colonial history under British rule, characterized by the reliance on judicial
precedents, an adversarial court process, and the doctrine of stare decisis. Judges play
an active role in interpreting laws and shaping legal principles through judgments,
which bind lower courts. In contrast, Civil Law systems, as seen in Continental
Europe, emphasize codified statutes, with judges applying the law strictly as written
and without creating binding precedents. While India follows the Common Law
approach in its procedural framework and the judiciary’s role, it also incorporates
elements of Civil Law through extensive codification, such as the Indian Penal Code
and Contract Act, and in regions influenced by French or Portuguese legal traditions,
like Goa. This hybrid structure allows India to balance judicial creativity with
legislative clarity and uniformity.
The legal systems used in criminal and civil trials around the world can broadly be
categorised into two types: the adversarial system and the inquisitorial system.
These systems differ in their approach to resolving disputes, gathering evidence, and
conducting trials. While the adversarial system is predominant in common law
countries such as India, the United Kingdom, and the United States, the inquisitorial
system is prevalent in civil law countries like France, Germany, and many other
European nations.
Role of the Judge
 Adversarial System: In the adversarial model, the judge acts as a neutral
referee who ensures that both parties’ follow legal procedures. The judge does
not actively investigate the facts or gather evidence. Instead, they make rulings
based on the evidence presented by the parties during the trial. The judge plays
a passive role in overseeing the fairness of the trial but does not participate in
uncovering the truth.
 Inquisitorial System: In the inquisitorial model, the judge plays a proactive
role in the investigation and trial process. The judge leads the inquiry, gathers
evidence, questions witnesses, and actively seeks out facts to uncover the truth.
In many cases, the judge may begin investigating long before the trial
commences. This active involvement means that the judge is responsible for
steering the direction of the investigation and ensuring that all relevant
information is presented.
Control Over Evidence
 Adversarial System: The parties are responsible for gathering and presenting
evidence. The prosecution works to build a case against the accused, while the
defence attempts to challenge the evidence and present an alternative narrative.
Both sides control what evidence they present and when. The judge or jury then
makes a decision based on the evidence presented during the trial. In this
system, there is a strong emphasis on cross-examination to challenge the
credibility of witnesses and the validity of evidence.
 Inquisitorial System: In the inquisitorial system, the judge is primarily
responsible for collecting and evaluating evidence. Rather than relying on the
 parties to bring forth evidence, the judge leads the investigation, ensuring that
all relevant facts are considered. Lawyers for the prosecution and defence may
still suggest lines of inquiry, but the judge determines what evidence is relevant
and how it is presented. The process is less adversarial and more focused on
fact-finding.
Involvement of Lawyers
 Adversarial System: In an adversarial trial, lawyers play a central role. They
represent their respective parties, shape the presentation of evidence, question
witnesses, and make legal arguments. Both sides are given equal opportunities
to advocate for their client’s interests. The trial is often seen as a battle between
two opposing legal teams, with the judge acting as a neutral observer. The
outcome depends largely on the skill of the lawyers in presenting their cases.
 Inquisitorial System: In contrast, the role of lawyers in the inquisitorial
system is more limited. While they can suggest areas for investigation or ask
follow-up questions during the trial, they do not control the presentation of
evidence or the direction of the inquiry. The judge leads the process, and
lawyers play a supporting role. This limits the adversarial nature of the trial,
focusing more on collaboration with the judge to uncover the truth rather than
battling opposing counsel.
Rights of the Accused
 Adversarial System: In adversarial jurisdictions, the accused has the right to
remain silent and is not compelled to testify or incriminate themselves. This
principle is rooted in the presumption of innocence and the right against self-
incrimination. The prosecution bears the burden of proving guilt beyond a
reasonable doubt. The accused does not have to provide any evidence or
explanation unless they choose to do so.
 Inquisitorial System: In the inquisitorial system, the accused may
be compelled to answer questions from the judge, and they do not always enjoy
the right to remain silent. The judge’s active role in fact-finding means that the
accused can be questioned more extensively than in an adversarial system.
While the presumption of innocence still applies, the inquisitorial approach
gives less emphasis to the defendant’s right to silence.

RULE OF LAW
As per Prof. A.V. Dicey, “the rule of law means the absolute supremacy or
predominance of the regular law as opposed to the influence of arbitrary power and
excludes the existence of arbitrariness or even of wide discretionary authority on the
part of the government.”
According to Plato rule of law is supreme in nature and nobody is above the law.
According to Aristotle the law should be the final sovereign of the state.

Dicey’s Rule of Law

According to Prof. Dicey, rules of law contain three principles or it has three meanings
as stated below:
Supremacy of Law: The First meaning of the Rule of Law is that '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
Equality before Law: the Second meaning of the Rule of Law is no man is above law
Predominance of Legal Spirit: the Third meaning of the Rule of Law is the general
principles of the constitution are the result of juridical decisions determining file rights
of private persons in particular cases brought before the Court.
The Rule of Law, in its most basic form, is the principle that no one is above the law.
The rule follows logically from the idea that truth, and therefore law, is based upon
fundamental principles which can be discovered, but which cannot be created through
an act of will.

Critical Analysis of Dicey’s Rule of Law

Dicey’s concept of Rule of Law had its advantages and disadvantages which are
discussed as follows:
• Rule of Law imposed and helped in imbibing a sense of restraint on administration.
The government was bound to work within the legal framework. Further, by stating
that the law is supreme, he made every law made by the legislature supreme, thus,
promoting parliamentary supremacy. There cannot be self-conferment of power as
even an ordinary law is supreme. All laws, public or private, are being administered
by the same set of independent and impartial judiciary. This ensures adequate check
on the other two organs.
• Nonetheless, on the other hand, Dicey completely misunderstood the real nature of
the French droit administration. He thought that this system was designed to protect
officials, but the later studies revealed that in certain respects it was more effective in
controlling the administration than the common law system. He also did not realise the
need for codification of laws which could lead to more discretion, thus hampering
Rule of Law.
Tom Bingham’s View:
Modern Interpretation: Lord Tom Bingham, in his book "The Rule of Law," expanded
upon Dicey’s ideas, emphasizing that the Rule of Law not only includes the
supremacy of law but also entails access to justice, the protection of fundamental
rights, and the requirement of legal accountability among all state agents. He argued
that laws should be clear, publicized, and stable, and that justice must be delivered
impartially
Rule of Law and Indian Constitution
• The Constitution of India provides that the constitution shall be the supreme power
in the land and the legislative and the executive derive their authority from the
constitution. Any law that is made by the legislative has to be in conformity with the
Constitution failing which it will be declared invalid, this is provided for under Article
13 (1).
• Article 21 provides a further check against arbitrary executive action by stating that
no person shall be deprived of his life or liberty except in accordance with the
procedure established by law.
• Article 14 ensures that all citizens are equal and that no person shall be discriminated
on the basis of sex, religion, race or place of birth, finally it ensures that there is
separation of power between the three wings of the government and the executive and
the legislature have no influence on the judiciary. By these methods, the constitution
fulfils all the requirements of Dicey’s theory to be recognized as a country following
the Rule of Law.
Rule of Law and Indian Judiciary
• The Indian Judiciary has played an instrumental role in shaping Rule of Law in
India. By adopting a positive approach and dynamically interpreting the constitutional
provisions, the courts have ensured that the Rule of Law and respect for citizens’
rights do not remain only on paper but it is also available in the society.
In Kesavananda Bharati v the state of Kerala under this case the principle of basic
structure was propounded and it was said that any part of the const’n can be amended
without disturbing the basic structure of it.
In Indira Gandhi v. Raj Narain, the court held that rule of law is also part of the basic
structure and in the list rule of law was also added and it means that no amendment
can be done in rule of law.
In Bachhan Singh v. State of Punjab, it was held that the Rule of Law has three basic
and fundamental assumptions. They are- 1) There must be independent judiciary to
protect the citizens against excesses of executive and legislative power. 2) Even in the
hands of the democratically elected legislature, there should not be unfettered
legislative power. 3) Law making must be essentially in the hands of a democratically
elected legislature;
ADM Jabalpur v. Shivkant Shukla
Art 21 cannot be suspended even in case of emergency

The terms "Rex Lex" and "Lex Rex" represent contrasting political and legal
philosophies about the relationship between law and sovereign power:
1. Rex Lex (The King is Law):
o This philosophy asserts that the king (or sovereign) is the ultimate
authority, and the law is subordinate to the sovereign's will.
o It is associated with absolute monarchies and autocratic regimes, where
the ruler’s decisions are considered the highest law.
o Historical examples include the divine right of kings, where monarchs
claimed their authority was granted by God, making them above the law.
2. Lex Rex (The Law is King):
o This philosophy emphasizes that the law is supreme and binds everyone,
including the sovereign.
o It is rooted in constitutionalism and the rule of law, ensuring that
governance is conducted according to established legal principles.
o Pioneered by thinkers like Samuel Rutherford in his 1644 book Lex,
Rex, it challenged the divine right of kings and advocated for
accountable governance under the law.
Modern Relevance: India follows the principle of Lex Rex through its democratic
and constitutional framework, where the rule of law is a fundamental tenet. The
Constitution is the supreme law, binding on all, including the President and Prime
Minister, ensuring accountability and equality before the law.

DOCTRINE OF SEPARATION OF POWERS

Meaning of separation of powers can be categorised into three parts:
 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs
 One organ should not exercise the function belonging to another organ.
The term “separation of powers” was initiated by Charles de Montesquieu, who was a
French scientist in his book “Esprit de Lois (The spirit of laws)”. He discovered that
when power is concentrated in the hands of a single person or a group of people, a
despotic government emerges. To avoid this predicament and to limit the
government’s arbitrary nature, he argued that the three organs of the state, the
executive, legislative and judiciary, should have a clear distribution of power.
Montesquieus’ model of separation of powers states that in every governmental set up,
we find three different powers. To prevent the abuse of power the model of checks and
balances was suggested by him.
Article 50 of the const’n of India talks about the separation of the executive from the
judiciary, however, as being a Directive principle of State Policy, it is not enforceable.
Although strict separation of powers is not followed in India like the American
const’n, the system of check and balance is followed. However, no organs are to take
over the essential functions of other organs which is the part of the basic structure, not
even by amending and if it is amended, such amendment will be declared as
unconst’nal.
LEGISLATIVE
The primary function of the legislature is to enact laws, which reflects the will of the
state and underpins the autonomy of its governance. It is considered the foremost of
the three branches of the government because lawmaking is fundamental to the
execution and application of laws. The Parliament is empowered to legislate on any
matter, provided it conforms to the const’n. Every law once passed by both the houses
of the Parliament or the house of the Stat Legislative Assembly and State Legislative
council, wherever it is present, has to obtain the consent of the President or the
Governor, in order to become an act. President is required to give assent as per Article
111 of the const’n. Additionally, the legislature has the authority to amend the const’n,
subject to the special majority outlined in Article 368.
While the legislature is the main body responsible for creatin laws, there are instances
where the President can exercise legislative powers. Under Article 133, the President
can issue ordinances during Parliamentary recesses or emergencies,
EXECUTIVE
This organ is tasked with implementing, executing and enforcing the will of the state
as defined by the constituent assembly and the legislature. In India, the executive is
led by the president and is supported by the council of ministers, who are headed by
the Prime Minister. The Indian const’n vests executive power in the President at the
central level under Article 53(1) and in the governor under Article 154(1) at the state
level. According to Article 74(1) of the const’n, the President must act in accordance
with the aid and advice of the Council of ministers. The President serves primarily as
a nominal head of state.
JUDICIARY
It refers to those public officers whose responsibility is to apply the law framed by the
legislature to individual cases by applying the law legislated by the Parliament. It is
responsible for interpreting the law, ensuring justice, and upholding the cont’n. Our
const’n is based on the doctrine of separation of powers and even though the judiciary
is self sufficient and an independent organ, some interference of the executive and the
legislature can be seen under the const’n as a measure of checks and balances. The HC
under Article 226 and the SC under Article 32 are given the writ jurisdiction.

Instances of law making by the judiciary

In case of, Vishakha v. State of Rajasthan, the Apex court provided directions in the
area of protection from sexual harassment at workplace.
In case of MC Mehta v. Union of India, which is also known as the ‘oleum gas leak
case’, the doctrine of ‘absolute liability’ was devised by the Apex court to deal with
the situations where hazardous industries are built, which ends up causing death and
damage to the citizens due to a mishap.

Checks and balances under the Indian const’n

The aspect of checks and balances is the essence of the doctrine of seperation of
powers. The mending power of the parliament under Article 368 is very wide,
However, it has been subjected to the restrictions of the basic structure as devised in
the case of Kesavananda Bharati v. State of Kerala. In this case, it was held that the
Parliament can amend any part of the const’n including the FR, but is cannot amend
the basic structure of the const’n. In case it amends the const’n in violation of the
basic structure then such amendment will be declared as unconst’nal by the Apex
court.

Judicial Review
It is a tool developed by the judiciary to check the constitutionality of any legislative
or executive action. In case any such action is violative of the basic structure of the
const’n that act or action id liable to be declared invalid or unconst’nal.
Jusrtice PN Bhagwati, in the case of Minerva Mills v. Union of India stated that it is
for the judiciary to hold the constitutional values and enforce the constitutional
limitations, that is the essence of the rule of law.
In case of IC Golaknath v. State of Punjab, the Apex court had wrongly stated that the
FR cannot be amended by the Parliament. However, in Keshavananda Bharati case the
SC stated that Parliament has the amending powers to modify or amend even the FR,
however, it cannot make any changes to the basic structure of the cosnt’n. Though,
what constitutes the basic structure was not exhaustively laid down and had to be
decided by the judiciary on a case to case basis.
Merits of doctrine of separation of powers
 It creates a system of checks and balances- each organ has certain checking
abilities over the other two organs in addition to its own power.
 It protects the rights and liberty of the citizens- since the doctrine of seperation
of powers shields individuals’ rights and freedoms from various types of
dictatorship and oppression.
 Enhanced government efficiency- as authority is divided across govt agencies,
these agencies learn in-depth information about the issues they are responsible
for and improve their effectiveness.
 It encourages order in governance- each of the three branches are given certain
set of responsibilities. This guarantees that the state is run in an orderly manner.
 It prevents abuse of authority- because various departments are given various
degrees of authority, the emergence of a dictatorship is prevented.
 It aims to achieve judicial independence- The idea of judicial independence
holds that the judiciary ought to be separate from the other arms of the
government. The judicial system is the guardian of the rights of the people
provided under Part III of the const’n. Therefore, it is very essential that the
judiciary plays its role independently without any undue influence.

Demerits of doctrine of separation of powers

 Not Fully Attainable- This theory is not fully attainable. The executive has
some role in rule-making, and the legislature also performs some judicial
functions. For example, impeachment which is judicial in nature is done by the
legislature.
 Administrative Complications- Separation of powers results in administrative
complications. It becomes difficult to forge cooperation, coordination and
harmony among the organs of government. The smooth working of modern
governments demands not so much separation of powers as a “co-ordination”
of powers.
 Could Lead to Confusion and Deadlock- Separation of powers sometimes leads
to jealousy, suspicion and friction among the organs of government. While
producing disharmony and confusion, it may paralyze the administration. As a
result, the administration often fails to take quick decisions even at a time of
crisis. According to Finer, the theory of separation of powers throws
“governments into alternating conditions of coma and convulsion.” Another
scholar is of the view that “separation of powers means confusion of powers.”
 Inequality of Powers-This theory is based on the principle of equality of
powers, but this principle is flawed. In the parliamentary system, the legislature
 which represents the people is most powerful while the executive is most
powerful in the presidential system.

NATURAL JUSTICE
The term "principle of natural justice" is derived from the Latin word "jus natural,"
and although it is not codified, it is closely tied to common law and moral principles.
It is a natural law that has nothing to do with any statute or constitution. All
inhabitants of civilised states place the highest value on adherence to the natural
justice principle. The Supreme Court issued its directive with the passage of time and
the formation of social, just, and economic statutory protection for workers during the
early days of fair practise, when industrial regions were governed by a strict and rigid
law to hire and fire.
Making an informed and fair judgement regarding a specific matter is known as
natural justice. Sometimes, the reasonable decision is irrelevant; what important is the
process and the participants in arriving at the reasonable decision. It is not constrained
by the idea of "fairness," and it comes in a variety of hues and tones depending on the
situation.
Natural Justice, also known as procedural fairness, is a legal philosophy that dictates
how legal proceedings should be conducted to ensure fairness and justice. In other
words, natural justice is the principle of law that protects the rights of individuals to
fair treatment in legal proceedings.
The principles of natural justice assert that justice should be based on the law of
nature rather than on the law of man. It revolves around the idea that decision-making
should be fair and impartial and that all parties involved in a dispute should have an
opportunity to be heard.
However, in some situations the principles of natural justice must be intentionally
disregarded in a decision-making process. This can happen for various reasons, such
as in emergencies or where national security is at stake. In cases where the principles
of natural justice are excluded, post-decisional hearings may be used to provide
affected individuals with an opportunity to present their case and challenge the
decision.
It is a process in which an individual who has already been adversely affected by a
decision can present their case after the tentative decision has been made. But it is
always preferable to follow the principles of natural justice in the first place to ensure
that decisions are fair.
No statute in India lays down the minimum procedure that administrative agencies
must follow while adjudicating any matter. In India, the concept developed through
Mohinder Gill v. Chief Election Commissioner1, wherein it was held that fairness
should be in every action, whether it is judicial, quasi-judicial, administrative, or
quasi-administrative work.
Therefore, the concept of natural justice presents the higher procedural principles that
Courts develop from time to time which every judicial, quasi-judicial, and
administrative agency must follow. The essence of this principle is fairness, equity,
and equality

RULES OF NATURAL JUSTICE

The first is the "Hearing Rule," which provides that the party or person who will be
impacted by the judgement made by the expert panel shall be given a reasonable
opportunity to present his case and be heard- audi alteram partem
Second, the "Bias Rule" generally states that an expert panel should be impartial while
making a judgement. The judgement should be made in a free and impartial manner
that can uphold the natural justice principle- nemo judex in cause sua
Thirdly, "Reasoned Decision," which describes an order, judgement, or other court
action made by the presiding authority on a justifiable and valid basis.

RULE OF FAIR HEARING

Natural justice is especially necessary for those decisions that are based on personal
biases or interests, or where parties could be denied their right to fair hearing. By
ensuring that decisions are made under the principles of natural justice, the legal
system upholds the rule of law and ensures that justice is served.

PRINCIPLE OF NEMO JUDEX IN CAUSA SUA

"Nemo Judex In Causa Sua" literally translates to "no one should be made a judge in
their cause." According to this principle, decision-makers must be impartial and
unbiased while deciding the dispute. They should not have any personal or financial
interest in the matter being decided, nor should they have any preconceived notions
about the parties involved or the subject matter.
This principle is also known as the rule against bias. Bias means any operative
prejudice, consciously or unconsciously, by the judge against the party or issue. The
rule against bias is broadly based follows two principles:
 No one should be a judge in his cause.
 Justice should not only be done but also seen to be done explicitly.
The principle of 'Nemo Judex In Causa Sua', or 'Rule against Bias', focuses on the role
of the judge in a hearing. It holds that a judge must be impartial and objective when
deciding any dispute.
In any administrative proceedings, these principles play an essential role. Any
administrator exercising adjudicatory powers should not have any personal or
proprietary interest in the outcome of the proceedings, or there should not be any
reasonable ground for believing that there was the likelihood of bias in the given
decision.
A different form of bias that an adjudicating authority can be accused of is given as
follows:
Personal Bias
Personal bias arises from the personal or professional relationship between the
authority and the parties to the dispute.
In A.K. Kraipak v. Union of India, the acting Chief Conservator of forests was a
member of the selection committee for the All India Cadre of the forest service. He
was also one of the candidates who applied for the All India Cadre of the forest
service. Although it was asserted that he hadn't taken part in any deliberations during
the selection process, the Court held that there was definitely a conflict between his
interest & the duty being cast on him. There was a real likelihood that the bias for the
mere presence of the candidate on the Selection Board may adversely influence the
judgment of other members.
Pecuniary Bias
Pecuniary bias means any bias in which the adjudicating authority has a direct
financial interest in the outcome of the dispute.
Subject-Matter Bias
Subject matter bias means bias in which the adjudicating authority is inclined towards
any particular issue. It relates to the behavioral attitude of the judge.
This can affect a decision. Therefore, a person cannot remain neutral and fair.
Policy Notion Bias
This bias occurs when a judge is influenced by their ideological beliefs. It involves a
predetermined stance on the policy issues related to the case. Policy notion bias
compromises the neutrality and impartiality required in decision-making.
Other forms of bias may include religious bias, racial bias, and gender bias. These
prejudices are the result of individual thoughts or discriminatory attitudes. They may
threaten the fairness of the decision-making process.
PRINCIPLE OF AUDI ALTERAM PARTEM
"Audi Alteram Partem" means "let the other party be heard." According to this
principle, all parties to a dispute should be allowed to be heard and present their case.
In other words, the principle asserts that no party should be condemned unheard. Each
party has the right to a fair hearing in any dispute. This includes the right to be
informed of the charges or allegations against them, to be given adequate notice of any
hearing or proceeding, and to be allowed to call witnesses and cross-examine any
witnesses called by the other side.
One of the sine qua non-principles of every civilized society, the right to a hearing,
passes through various stages, from notice to final determination. Therefore, the right
to hearing encompasses the following concepts within its ambit:
1. Right to notice
2. Right to present case and evidence
3. Right to rebut adverse evidence
a. Right to cross-examination
b. Right to legal representation
4. Disclosure of evidence to the party
5. Showing the report of enquiry to the other party
6. Reasoned decisions or speaking orders
Therefore, pre-decisional hearing is one of the standard and essential rules of Audi
Alteram Partem. But, it would be wrong to disregard the status of the post-decisional
hearing. Post-decisional hearing is also a justiciable rule as it affords the hearing
opportunity to the aggrieved person and is a better option than no hearing. However, it
is pertinent to note that a post-decisional hearing must be considered an exception
rather than a rule.
POST-DECISIONAL HEARING
Usually, an individual is given an opportunity to present their version of the case
before the adjudicatory authority has passed its decision. This is known as the pre-
decisional hearing, lucidly explained by the Hon'ble Supreme Court in Ramnath
Prasad v. Collector of Darbhanga. In this case, the Court observed that the laws of
procedure are deeply grounded on the principle of natural justice, which requires that
no men should be condemned unheard and that decisions should not be reached
behind their backs. In other words, the Court observed that the proceedings which
affect the lives and property should not continue in the absence of any party, and they
should not be precluded from participating in any proceedings concerning them.
However, the era of the late 1970s witnessed the evolution and growth of a dynamic
and opposite concept called post-decisional hearing. It was developed by the Supreme
Court in Maneka Gandhi v. Union of India to balance between administrative
efficiency and fairness to the individuals.
As per this rule, an individual can be heard after the adjudicating authority has
pronounced its tentative decision. This is because sometimes it may not be feasible for
the authorities to have a pre-decisional hearing. Therefore, tentative decisions are
taken firsthand, and later on, the individuals are given an opportunity to present their
version of the case.
While this rule may look antithetical to the Audi Alteram Partem, the same is not true.
In post-decisional hearings, the rule of right to be heard is followed; however, at a
later stage, i.e., after the tentative decision has been made. Hence, it can be said that
principles of natural justice doesn't encompass only pre-decisional hearing, but also
post-decisional hearing.
It is pertinent to note that the decision must always be tentative; otherwise, it would
become difficult for the adjudicating authorities to reverse it. Ultimately, the right to a
fair hearing of the party will get hampered.
The Hon'ble Supreme Court has always favored pre-decisional hearings rather than
post-decisional hearings as it affords a better opportunity to be heard to the parties and
upholds the principles of natural justice in a better way. It is undisputed that post-
decisional hearings must always occur only in extreme and unavoidable situations.
In Charan Lal Sahu v. Union of India, the Hon'ble Court held that the post-decisional
hearing could eradicate the procedural deficiency arising from a pre-decisional
hearing. Hence, if there is any lack in the case proceedings, then the post-decisional
hearing can compensate for it.
In H.L. Trehan v. Union of India, the Hon'ble Supreme Court observed that the post-
decisional opportunity doesn't sub-serve the rule of natural justice in any way.
Therefore, a pre-decisional hearing is always desirable, but a post-decisional hearing
is better than no hearing. The post-decisional hearing also forms a part of the rule of
fair hearing.

EXCLUSION OF PRINCIPLES OF NATURAL JUSTICE

There are several instances where application of principles of natural justice ought to
be excluded. These are explained below:
THE DOCTRINE OF NECESSITY AND ABSOLUTE NECESSITY
The doctrine of necessity is a legal principle that allows actions that would otherwise
be considered a violation of natural justice to be taken in extraordinary circumstances.
It is based on the idea that sometimes it is necessary to set aside normal legal
procedures to prevent a greater harm from occurring.
In the context of natural justice, the doctrine of necessity is often invoked when a
judge or other decision-maker has a conflict of interest or bias that would normally
disqualify them from making a fair and impartial decision. In such cases, if no other
judge or decision-maker is available to hear the case, the conflicted judge may be
allowed to continue with the case under the doctrine of necessity.
There are two types of necessity: necessity and absolute necessity. In the doctrine of
necessity, there is an option of either allowing the biased person or not allowing
adjudicating the case. Necessity is when there is no other reasonable alternative to the
action in question. On the other hand, under the doctrine of absolute necessity,
allowing the biased person to adjudicate the matter becomes absolutely necessary. In
absolute necessity, the situation becomes so urgent and harmful that even if there were
alternatives, they would not be effective.
However, the doctrine of necessity is a narrow exception to the principles of natural
justice. It is only applied in very limited circumstances with no other reasonable
option. The decision-maker must also ensure that the action taken is the least intrusive
possible and that the principles of natural justice are otherwise respected as far as
possible.
STATUTORY EXCEPTIONS
Statutory exceptions refer to situations where the provisions of a statute or law may
override the principles of natural justice. Legislative bodies create these exceptions
and are typically created to ensure a fair and just outcome in a particular situation.
For example, in certain cases involving national security or public safety, the
Government may be authorized by law to take actions that would otherwise be
considered a violation of the principles of natural justice, such as detaining individuals
without trial or withholding evidence from a trial for security reasons.
Similarly, certain administrative procedures, such as those related to taxation or
immigration may provide for specific timelines and requirements that may limit the
application of the principles of natural justice to expedite the resolution of disputes or
streamline decision-making processes.
In the case of Charan Lal Sahu v. Union of India, the Central Government authorized
itself under the Bhopal Gas Disaster Act (Processing of Claims) Act, 1985, to
represent all the victims. This was challenged by the fact that the Government holds a
22% share in the Union Carbide Company, and therefore it was alleged that the
interests of the Government and the company overlap each other due to a potential
conflict of interests between the victims and the Government. The Court further held
that although the agreement might be true, no other body can represent the victims. A
statutory exception might not always be expressed, but it is implied in the application,
along with the doctrine of necessity.
Overall, statutory exceptions to the principles of natural justice aim to balance the
interests of fairness and efficiency in administering justice while ensuring that
fundamental rights and freedoms are protected under the law. In addition, even where
a statutory exception exists, it is still important for decision-makers to act fairly and
reasonably in making their decisions.
EMERGENCY SITUATIONS
In situations of emergency or to protect national security, the principles of natural
justice may be modified or suspended to allow immediate action. In situations of
emergency, the right to be heard is excluded by the law for the time being to allow the
smooth functioning of the Government. This implies that any hearing or any process
which jeopardizes the interest of the public at large would exclude the application of
the principles of natural justice.
In Mohinder Singh Gill v. CEC, the constituency elections were going on in Ferozpur.
These elections were interrupted by mob violence, which destroyed some ballot
papers and boxes. Therefore, in light of the circumstances, the ECI ignored the right to
be heard and, without notice, ordered re-elections. The order by ECI was challenged,
and the Court did not find it right to interrupt the work of the ECI and dismissed
claims for notice by asserting that the said act was necessary for an emergency and,
therefore, the rule of Audi Alteram Partem can be ignored.
NON-INFRINGEMENT OF THE RIGHT OF AN INDIVIDUAL
This concept closely relates to the legal maxim, "Ubi Jus Ibi Remedy," which
translates to where there is a right, there is a remedy. Therefore, this means that when
a person has no rights, he cannot ask for a remedy. Thus, in this case, principles of
natural justice may have to be forfeited in situations of procedural fairness.
PUBLIC INTEREST
Public interest is sometimes considered an exception to the principles of natural
justice. This is because when the interests of society are at stake, it may be necessary
to override individual rights to protect the greater good. For example, laws that restrict
certain activities or limit freedoms may be passed to protect public health and safety.
In these cases, public interest takes precedence over natural justice.
IMPRACTICAL SITUATIONS
Certain situations may be impossible for a person or group to receive equal treatment
because of their circumstances or available resources. Therefore, when it comes down
to making decisions in situations that are impractical or impossible to resolve through
fairness and equality alone, the principles of natural justice should be excluded.
ACADEMIC EVALUATION
Academic evaluation is considered an exception to the principles of natural justice due
to its unique nature. The evaluation process involves assessing a student's knowledge,
skills, and abilities performance. This assessment is usually carried out by experts
with the necessary expertise and experience to judge the student's academic
performance fairly.
Therefore, in cases where the authority is either of academic nature or of complete
administrative nature, then in such cases, the academic evaluations so done are to be
excluded from the ambit of the rule of natural justice.
In the landmark case of Jawaharlal Nehru University v. B.S. Narwal, the respondent
was a student of Jawaharlal Nehru University. The respondent's name was removed
from the university on the basis of his academic performance. He wasn't given any
opportunity to be heard before the notice. The Hon'ble Supreme Court observed that
an academic authority has made the decision and hence is excluded from the purview
of principles of natural justice. It was further held that if the assessment authority is
competent and decides that the work of the particular student is unsatisfactory, then
the rule of natural justice must be excluded.

SPEAKING ORDERS OR REASONED DECISION

In the pursuit of justice, there are many important principles. One such principle is the
speaking orders or reasoned decisions. Judges and authorities should explain their
decisions carefully and clearly. It is very important for the judicial system's
impartiality, openness, and accountability.
Speaking orders involve judges explaining their thought processes. The judges also
explain the laws they used to make the decision. This ensures the rule of natural
justice.
A reasoned decision has many benefits. It helps parties understand why their rights
were affected and if the decision is fair. It also allows them to challenge the decision if
needed. Decisions with reasons build trust in the legal system. It shows that decisions
are based on laws and logical thinking, not on bias.
Speaking orders also have a bigger impact on society. They help make consistent
decisions and create legal guidelines for the future. They also let people evaluate and
criticize decisions. This keeps the legal system accountable.
In India, the courts have emphasized the importance of speaking orders through
important judgments. The Supreme Court says that reasoned decisions are important,
especially in fundamental rights cases. Courts believe that a fair trial includes getting a
decision with reason. Even Article 21 of the Constitution guarantees a fair trial.
Speaking orders should not only be used in courts. But they should also be used in
administrative and quasi-judicial bodies. Speaking orders as a principle of natural
justice in administrative law ensures fair treatment and due process. These bodies have
power and can affect people's rights. They should be fair and transparent in making
decisions.

PRINCIPLES OF NATURAL JUSTICE AND CONSTITUTION OF INDIA

The principles of natural justice is not defined in the Indian Constitution. These are
important for the concept of a fair judicial system. These ideas have their origins in
the fundamental rights.
Right to Equality (Article 14): The Constitution guarantees the right to equality before
the law and equal protection of the laws. This is based on the principle of natural
justice.
Right to Life and Personal Liberty (Article 21): The Constitution guarantees the right
to life and personal liberty. The judiciary included the right to a fair trial in this article.
Protection against arrest and detention in certain cases (Article 22): It includes the
right to be informed of the grounds of arrest. It includes the Right to consult a legal
practitioner of one's choice. It also includes the right to be produced before a
magistrate within 24 hours of arrest.
Separation of judiciary from the executive (Article 50): This article directs the state to
separate the judiciary from the executive. This ensures that the judiciary can function
independently and impartially. The judiciary should be free from any interference
from the executive.
Similarly, a number of regulations and laws in India offer the implementation of
natural justice principles. For example, the Administrative Tribunals Act 1985 and the
Code of Civil Procedure, 1908.
Some landmark judgments have emphasised the importance of the principles of
natural justice in the Constitution of India. These judgments have strengthened the
protection of fundamental rights guaranteed under the Constitution. Some of them are
given below:

Maneka Gandhi vs Union of India (1978)

In this case, the Court held that the right to travel abroad is a part of the right to
personal liberty. The court emphasized the importance of providing an opportunity to
be heard before taking any action.
A.K. Kraipak vs Union of India (1969)
It is important to have an impartial and independent decision-making authority. The
court held that the rule against bias is important to natural justice. It was said decision-
making authority must be free from bias or personal interest.

Rule of Equity
‘Equity’ means something which is fair and just. Equity is derived from the Latin
word ‘acquitas’ which means to level. It is pertinent to understand that equity in itself
is a separate legal system other than common law, for instances where applying the
principles of the common law would have been unfair or unjust or too punitive. Equity
is a very wide term that encompasses a vast array of remedies to ensure that the ends
of justice are met to the greatest end possible. The rule of equity is present to ensure
natural justice is present which in layman’s means that everyone gets the justice that
they need and which really is justice for them, not merely a formal procedure where
justice has more detrimental effect over litigants.
1. Equity will not suffer a wrong to be without a remedy
This maxim, in Latin, is “ubi jus ibi remedium” which means “where there is a
right there is a remedy”. It states that in situations where common law confers a
right, it also gives a remedy for infringement of that right. In Ashby v. White a
qualified voter was not allowed to vote and thus he sued the returning officer, this
case deals with the principle laid down in this maxim, i.e if a person has been
granted a right, he is also granted a remedy.
2. Equity follows the law
This maxim lays down that equity supplements law and does not supersede it. The
discretion of the court is governed by law and equity which are less important to
each another. Wherever the law can be followed, it must be followed.
3. He who comes to equity must come with clean hands
This doctrine relates to past conduct of the parties and states that the person who
comes to the court seeking equity must not have involved in an inequitable act
himself in the past. This maxim is concerned with the past behaviour of the
plaintiff. The maxim does not concern the general behaviour of the plaintiff, the
defence of unclean hands is only applicable in situations where there is nexus
between the applicant’s wrongful act and the right that he wished to enforce.
4. Delay defeats equity or Equity helps the Vigilant and not the Slothful
Equity assists the vigilant and not those who sleep on their rights. A party must
assert an action within a period of reasonable time. There are certain situations
where the law of limitation expressly applied, in such cases, there is a
 particularized legal situation where a time period, which has been expressly
prescribed, has elapsed and the party is barred from bringing a suit of action.
5. Equity is a Kind of Equality
The maxim implies that as far as possible, equity strives to put the litigating parties
on an equal level and equate their rights and responsibilities. The ordinary law may
give one party advantage over the other but the court of equity, wherever possible,
puts the parties on an equal footing.
6. Equity will not allow a wrongdoer to profit by a wrong
The principle is well-established in both law and equity, and emphasizes that
people should not be allowed to profit from their illegal or wrongful actions.
Equity is a court of conscience that operates on the defendant's state of mind,
knowledge, and motives. Equitable remedies are distinguished from legal
remedies, which are available to a successful claimant as of right, by the discretion
of the court to grant them.

The Indian Constitution upholds equity through its provisions for justice, equality,
and fairness (e.g., Articles 14 and 21). Courts in India integrate equitable principles
while interpreting laws, ensuring decisions align with the broader ideals of justice.
Statutes like the Specific Relief Act, 1963, embody equitable principles by providing
remedies like specific performance and injunctions.

SALIENT FEATURES OF THE CONSTITUTION

What are the salient features of Indian Constitution?

Before making the present Constitution, the framers examined Constitutions of
various countries of the world and also the working of the Government of India Act,
1935. They liberally borrowed appropriate provisions from Constitutions of many
countries of the world. The Constitution so adopted has the following salient features
—
1. Preamble: The Preamble serves as an introduction to the Constitution,
outlining its fundamental values and guiding principles. It states the objectives
of the Constitution, which include justice, liberty, equality, and fraternity. The
Preamble encapsulates the ethos of the nation and establishes the source of the
Constitution’s authority in the people of India.
2. Fundamental Rights: These rights are enshrined in Part III of the Constitution
and guarantee essential civil liberties to all citizens. They include the right to
 equality, freedom of speech and expression, protection against discrimination,
right to life and personal liberty, and protection in respect of conviction for
offenses, among others. Fundamental Rights are enforceable through the
courts, ensuring that individuals can seek judicial remedy against arbitrary state
actions
3. Directive Principles of State Policy (DPSP): Found in Part IV, these
principles guide the state in policy-making and governance. While not
enforceable by courts, they represent the ideals that the state aims to achieve in
order to promote social and economic welfare. The DPSP emphasize goals such
as equitable distribution of wealth, right to work, education, and public
assistance.
4. Judicial Review: This feature empowers the judiciary to review the
constitutionality of legislative and executive actions. Through judicial review,
courts can invalidate laws and actions that contravene the Constitution,
safeguarding fundamental rights and ensuring the rule of law. This mechanism
acts as a check on the powers of the legislative and executive branches.
5. Fundamental Duties: Enshrined in Article 51A, these duties are a set of moral
obligations that every citizen is expected to uphold, reflecting the values and
ideals of the Constitution. They emphasize respect for the Constitution, the
national flag, the national anthem, and the promotion of harmony and spirit of
common brotherhood among all people.
6. Federal Structure with Strong Unitary Features: The Constitution
establishes India as a federal state, meaning that power is divided between the
central government and various state governments. However, it also
incorporates unitary features, such as the power of the central government to
legislate on subjects in the State List during emergencies. This ensures a strong
center capable of maintaining national integrity.
7. Separation of Powers: The Constitution embodies the doctrine of separation
of powers, dividing the responsibilities of governance among the legislative,
executive, and judicial branches. This structure ensures that no single branch
can usurp the functions of another, maintaining a system of checks and
balances essential for democratic governance