LEGAL METHOD ANS IT'S IMPORTANCE, Lecture notes of Legal and Social Theory

Download LEGAL METHOD ANS IT'S IMPORTANCE and more Lecture notes Legal and Social Theory in PDF only on Docsity! Page 1 of 70 Compiled by Rahul Kumar Singh LEGAL METHODS Q. What are the basic sources of law? 1. Custom: Custom has been one of the oldest sources of law. In ancient times, social relations gave rise to several usages, traditions and customs. These were used to settle and decide disputes among the people. Customs were practiced habitually and violations of customs were disapproved and punished by the society. Initially social institutions began working on the basis of several accepted customs. Gradually, the State emerged as the organised political institution of the people having the responsibility to maintain peace, law and order; naturally, it also began acting by making and enforcing rules based upon customs and traditions. In fact, most of the laws had their birth when the State began converting the customs into authoritative and binding rules. Custom has been indeed a rich source of Law. 2. Religion and Morality: Religion and religious codes appeared naturally in every society when human beings began observing, enjoying and fearing natural forces. These were accepted as superior heavenly forces (Gods and Goddesses) and worshiped. Religion then started regulating the behaviour of people and began invoking “Godly sanction”, “fear of hell”, and “possible fruits of heaven”, for enforcing the religious codes. It compelled the people to accept and obey religious codes. Several religions came forward to formulate and prescribe definite codes of conduct. The rules of morality also appeared in society. These defined what was good & what was bad, what was right and what was wrong. The religious and moral codes of a society provided to the State the necessary material for regulating the actions of the people. The State converted several moral and religious rules into its laws. Hence Religion and Morality have also been important sources of Law. 3. Legislation: Since the emergence of legislatures in 13th century, legislation has emerged as the chief source of Law. Traditionally, the State depended upon customs and the decrees or orders of the King for regulating the behaviour of the people. Later on, the legislature emerged as an organ of the government. It began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the people. The King, as the sovereign, started giving these his approval. Soon legislation emerged as the chief source of law and the legislature got recognition as the Legal Sovereign i.e. law-making organ of the State. In contemporary times, legislation has come to be the most potent, prolific and direct source of law. It has come to be recognized as the chief means for the formulation of the will of the State into binding rules. 4. Delegated Legislation: Because of several pressing reasons like paucity of time, lack of expertise and increased demand for law-making, the legislature of a State finds it essential to delegate some of its law- making powers to the executive. The executive then makes laws/rules under this system. It is known as Page 2 of 70 Compiled by Rahul Kumar Singh Delegated Legislation. Currently, Delegated Legislation has come to be a big source of Law. However, Delegated Legislation always works under the superior law-making power of the Legislature. 5. Judicial Decisions: In contemporary times, Judicial Decision has come to be an important source of Law. It is the responsibility of the courts to interpret and apply laws to specific cases. The courts settle the disputes of the people in cases that come before them. The decisions of the courts – the judicial decisions, are binding on the parties to the case. These also get accepted as laws for future cases. But not all judicial decisions are laws. Only the judicial decisions given by the apex court or the courts which stand recognized as the Courts of Record, (like the Supreme Court and High Courts of India) are recognized and used as laws proper. Lower Courts can settle their cases on the basis of such judicial decisions. 5. Equity: Equity means fairness and sense of justice. It is also a source of Law. For deciding cases, the judges interpret and apply laws to the specific cases. But laws cannot fully fit in each case and these can be silent in some respects. In all such cases, the judges depend on equity and act in accordance with their sense of fair play and justice. Equity is used to provide relief to the aggrieved parties and such decisions perform the function of laying down rules for the future. As such equity acts as a source of law. 6. Scientific Commentaries: The works of eminent jurists always include scientific commentaries on the Constitution and the laws of each state. These are used by the courts for determining the meaning of law. It helps the courts to interpret and apply laws. The jurists not only discuss and explain the existing law but also suggest the future possible rules of behaviour. They also highlight the weaknesses of the existing laws as well as the ways to overcome these. Interpretations given by them help the judges to interpret and apply Laws to specific cases. The works of jurists like, Blackstone, Dicey, Wade, Phillips, Seeravai, B.Pi. Rau, D.D. Basu and others have been always held in high esteem by the judges in India. Scientific commentaries jurists always help the development and evolution of law. Hence these also constitute a source of law. Thus, Law has several sources. However, in contemporary times law-making by the legislature constitutes the chief source of Law. Q. Discuss legislation, precedent and custom as a source of law. Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how various jurists have defined legislation. 1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a competent authority. 2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society. Page 5 of 70 Compiled by Rahul Kumar Singh 2. Persuasive Precedent- Judges are under no obligation to follow but which they will take precedence into consideration and to which they will attach such weight as it seems proper to them. They are classified as Historical Sources. Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent. There are circumstances that destroy the binding force of the precedent: 1. Abrogated Decision- A decision when abrogated by a statutory law. 2. Affirmation or reversal by a different ground- The judgment rendered by a lower court loses its relevance if such a judgment is passed or reversed by a higher court. 3. Ignorance of Statute- In such cases, the decision loses its binding value. 4. Inconsistency with earlier decisions of High Court 5. Precedent that is sub-silentio or not fully argued. 6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment. 7. Erroneous Decision CUSTOM Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. When people fine any act to be good and beneficial, which is agreeable to their disposition, they practice it and in course of time by frequent observance and on account of its approval and acceptance by the community for generations, a custom evolves. In all societies of the world, custom has enjoyed a very high place in varying degree in the regulation of human conduct. Customs arise whenever a few human beings come permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations. Custom is to society what law is to the state. Contents. In primitive societies human conduct was regulated by practices which grew up spontaneously and were later adopted by the people. What was accepted by the generality of the people and embodied in their customs was deemed to be right. So, custom has played an extremely significant role as a source of law, till other sources of law like legislation and precedent acquire prominence. Customs have been the most potent force in molding the ancient law. Acceptance of customs as a source of law: Salmond has pointed out two reasons for the recognition of customs as a source of law. Firstly, custom is frequently the embodiment of those principles which have commanded themselves to the national conscience as principles of justice and public utility. Secondly, the existence of an established usage is the basis of a rational expectation of its continuance in the future. Salmond adds, ‘’justice demands that, unless there is good reason to the contrary , men’s rational expectations shall, so far as possible, be fulfilled rather than frustrated. Page 6 of 70 Compiled by Rahul Kumar Singh Keeton observes that the main reason for the admission of custom as a source of law seems to be that before state organs undertook the task of framing laws for the community, this was done by the people themselves, and the rules elaborated by habit were enforced in popular courts. Thus, the state in advancing its authority takes over and enforces customary rules, first formulated by the people themselves for their own regulation. Views of historical school of law in regard to the place of custom in the list of sources of law According to Savigny and the German historical school, customs is in itself an authoritative source of law. According to them the present cannot be understood without reference to the past, and to understand the true source of law we must go back to the days when society was in its infancy. In early time it was only customary rules which were the only kind of laws known to the people and which had the people sanction. According to the analytical school, custom is not an authoritative source of law at all. Austin points out that as far as English law is concerned the so-called English customary law is purely on invention of the English judges. Because they were afraid of offending the conservative instincts of the English people, that is why they started the fiction that they were not introducing our new law but they were giving to the English people merely their own customary laws. Kinds of custom Customs are of two kinds (1) legal and (2) conventional. The first kind consists of custom which is operative per se as a binding rule of law, independently of any agreement on the part of those subject to it. The second kind consists of custom which operates only indirectly through the medium of agreement, express or implied, whereby it is accepted and adopted in individual instances as conventional law between the parties. Legal custom: The legal custom is one whose legal authority is absolute. It possesses the force of law proporio vigore. The parties, affected may agree to a legal custom or not but they are bound by the same. Legal customs are of two kinds and (1) Local: Local customs apply only to a locality and a general custom applies to the whole country. Local custom Local custom is one which prevails in some definite locality and constitutes a source of law for that place only. Every local custom must satisfy certain conditions. It must be reasonable. It must conform to the statue law. It must have been observed as obligatory. It must be of immemorial antiquity. (2) General: A General custom is that custom which prevails throughout the country and constitutes one of the sources of the law of the land. There was a time when common law was considered to be the same as the general custom of the realm followed from ancient times. There is no unanimity of opinion on the point whether the general custom must be immemorial or not. Page 7 of 70 Compiled by Rahul Kumar Singh Conventional custom A conventional custom is one whose authority is conditional on its acceptance and incorporation in the agreement between the parties to be bound by it. A conventional custom is an established practice, which is legally binding because it had been expressly or impliedly incorporated in a contract between the parties concerned. Views of analytical school in regard to custom as a law The great advocates of the analytical theory are Austin, Holland, Gray, Allen and Vinogradoff. According to Austin one of the main priests of analytical school, custom is a source of law and not law in itself. Custom are not positive laws until their existence is recognized by the decisions of the courts. A custom becomes law when it is enforced by the state. It is not every custom that is binding. Only those customs are valid which satisfy the judicial test. The sovereign can abolish a custom. A custom is law only because the sovereign allows it to be so. According to Austin, a custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior. Austin’s view is based on two propositions-the first preposition is that it is not every custom that is binding but only those which are valid-the validity being determined by judicial recognition. A custom when so recognized are only social customs or merely rules of positive morality. The second proposition is that a sovereign or a legislature very often abolishes customs and is, therefore, superior to them. A custom is law only because a sovereign allows it to be so. According to Holland, customs are not laws when they arise but they are largely adopted into laws by state recognition the existence of a custom. English courts require that not only the existence of a custom be proved but it should also be proved that the same is reasonable. The legislature can also abrogate customs whether partially or wholly. To quote Holland, “Binding authority has thus been conceded to custom, provided it fulfils certain requirements the nature of which has also long since been settled and provided it is not superseded by law of a higher authority. When, therefore, a given set of circumstances is brought into court and the court decides upon them by bringing then within the operation of a custom, the court appeals to that custom as it might to any other pre-existent law. It does not proprio motu then for the first time make the custom a law; it merely decides as a fact that there exists a legal custom about which there might up to that moment have been some questions, as there might about the interpretation of an Act of Parliament.” As per the historical school of jurisprudence, law is essentially the product of normal forces associated with the spirit of each particular people and nothing is more representative of these revolutionary processes than the autonomous customs which are found to exist in each community, and which are indigenous as its flora or fauna. Custom carries its own justification in itself because it would not exist at all unless some deep seated need of the people or some quality of temperament gave rise to. Essentials of a valid legal custom Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. Essentials of a valid custom are: Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial. Continuity: It must have been practiced continuously. If a custom is disturbed for a considerable time, a presumption arises against it. Page 10 of 70 Compiled by Rahul Kumar Singh Having examined the various definitions of writers that formed several schools of thoughts as to the meaning of law and also a brief understanding of the role of law in the society, this work concludes on the notion that the law is living, organic, dynamic and remains a tool for social engineering. The purpose of law is to produce either of two things: (a) an idealistic society or (b) a practical society more tolerable than what has been labeled by some philosophers as the state The Function of Law 1. Regulates conduct- acts as a deterrent i.e. if you do “x" you face punishment “y". 2. Avoids or Settles disputes – Contract law sets out rules for making & enforcing agreements. 3. Set out rights and obligations- for example the Charter of Rights limits the government’s authority over citizens. 4. Provides remedies- if your rights have been violated under the law, the law provides a system of recourse. 5. Maintains Order & provides protection- prohibits certain acts & provides for an authority-(police) to protect us. 6. Sets up the structure of government- The Constitution Act assigns power & duties to the various levels of government. 7. Directs how to make laws- The Parliament. Q. Discuss the common law System and Romano Germanic systems of law and point out the differences between the above two legal systems. Does Common Law apply in India? “Our lady the Common Law is a very wise old lady though she still has something to learn in telling what she knows”. – FREDERICK POLLOCK The common law, as aptly put by the fabled English jurist Sir Frederick Pollock resounds of the comprehensive nature of law. This quintessentially universal and sentient law, since its inception has acted as the derivative of human conduct, used to maintain order where there was none. But what is common law? It refers to the unwritten, judge made law as opposed to written law (statutory law). Common law was developed by judges through the decisions of the courts. A common law system was first developed in England from where, with the aggressive expansion of the English empire this system of law too traversed to different parts of the world, of which India became one of its destinations. COMMON LAW: DEFINITION AND ORIGINS The Common Law is a body of law derived from judicial decisions known as case laws, rather than from statutes. The Common Law derived its authority from the universal consent and practice of the people Page 11 of 70 Compiled by Rahul Kumar Singh from time immemorial. This system of jurisprudence initially originated in England. Common Law is unintelligible until expressed in a judgment. It includes those rules of law which derive their authority from the statement of principles found in the decisions of courts. This system of law includes tradition, custom and usage, fundamental principles and modes of reasoning. It is the embodiment of broad and comprehensive unwritten principles, which were derived out of natural reasoning and innate sense of justice. A Common Law system requires several stages of research and analysis to determine the appropriate law in a given situation. The facts are ascertained properly, relevant cases and statutes are to be identified, and the principle, ideas by various courts need to be understood and applied in order to determine how they would help in understanding the point of law in question within that case. The common law is quite different from codified law as it follows the judgment while the codified law precedes it. Therefore it can be said that it is a system of rules and declarations of principles from where the judicial ideas and legal definitions are derived. This law is ever changing as its principles are influenced by the changing conditions and requirements of the society. The origin of the common law system can be traced back to England, where after the Norman conquest (1066 A.D.) . The new ruler of England William II brought about a varied number of governmental reforms, as a consequence he also overhauled the legal setup of England. Earlier the legal system of England comprised of county courts presided by the bishop and the county sheriffs, who exercised both criminal and civil jurisdiction. William II introduced the system of Eyre, wherein four judges were appointed by the King, their main function was to review the activities of the county courts and hear cases of appeals. It was used as a tool to centralize control over local courts, thus it provided a basis for the development of common law in England. The dawn of this system came with Henry II ascendance to power. He is considered the harbinger of a common law system as he created a system of law, common to the whole of England. Some of the features of this system were; firstly a practice developed of sending judges from his own court i.e. a central court established at Westminster, to places around the country for deciding cases in the local courts. These cases were decided with the help of local customs. Secondly, these cases were recorded and filed at the permanent court in Westminster, with the due passage of time these decided cases began to be referred in other cases having similar facts. This principle of law came to be known as precedents. Thirdly, local customs became the primary source of law as they were used in trials to decide points of law. A system of jury was also developed where citizens decided matters of law based on common law knowledge and local customs. Hence the culmination of a centralized system of law with the practice of keeping record of decided cases for future reference wherein customs also played an exemplary role to decide nuanced points of law together gave birth to what is referred to as “The common law”. Common law has no basis in statute, and is established and developed through written opinions of judges delivered at the end of a trial. These opinions are binding on future decisions of lower courts in the same jurisdiction. However, that is not to say that common law systems derive all of their laws from case law. Democratic countries that have adopted the common law system have legislative bodies at Page 12 of 70 Compiled by Rahul Kumar Singh the centre of their democracies, and these bodies regularly pass new legislation. This legislation is then interpreted and applied by the judiciary during trials; these rulings will then be applied in future cases under the doctrine of stare decisis, another name for judicial precedent. Large bodies of law, for example those relating to property, contracts and torts, are traditionally part of the common law. More modern areas of law such as employment law, intellectual property law and health and safety tend to be based on statute rather than on common law. As with any system, the common law system has its advantages and disadvantages. The three main arguments in favour of such a system is that it is fair, expedient and efficient. It is seen as being fair as the strict following of precedents in all cases means that all people are treated equally. It is expedient because basing decisions on precedent means that potential litigants have a good idea as to what to result to expect. Finally, the existence of precedents means that the judicial process can be relatively fast as there is already a framework in place in which to base a ruling. The disadvantages include the perpetuation of bad rulings and the difficulties raised when there is no precedent for the case before the court. Once a bad decision has been made by a higher court, that decision will remain law until the same court, or a higher court, overrules the bad decision. Courts are reluctant to overrule their own decisions unless absolutely necessary, and so bad decisions can be upheld for a long time. That is true of bad precedents. However, a total lack of precedent can lead to many problems, especially where a court is essentially having to make new law where no previous law existed. COMMON LAW IN INDIA: A BACKDROP The existing Indian legal system can be said to have a contemporaneous existence i.e. with the advent of the English in India. During the 1600s when the enterprising English East India Company forayed into India on the backdrop of trading interests little did the Indian masses or even their future rulers know that they would shape the very foundation of the modern Indian society. This transformation happened in various ways but the most relevant of those developments was the setting up of a new type of judicial system, which was primarily based on the common law system followed in England. As the East India Company took control of territories, leased to them by the Mughals for trading purposes, they were anointed the power to govern all persons belonging to the English government and the company within these territories according to the English common laws by the Crown. After the company won the battle of Plassey (1757), the Mughal legal system was slowly replaced by the English legal system. In the seventeenth-century admiralty courts were set up in the three presidency towns of the British i.e. Bombay, Madras, Calcutta. These courts derived jurisdiction directly from the company and not the crown to decide civil and criminal matters. In the eighteenth century through a royal charter Mayors were established, they derived authority from the crown. This was the first step in the establishment of a uniform legal system in India. A system of appeals to the Privy Council (a body of advisors to the crown) from such courts was also initiated. In the late eighteenth century, the mayor’s court was replaced with a supreme court in the presidency towns. “This was the first attempt to create a Page 15 of 70 Compiled by Rahul Kumar Singh and chivalry, the growth of cities, Eastern colonization, increasing trade, and an increasingly refined culture. Among the many strands that went into the weaving of the complex pattern of medieval law, the customs of merchants and the canon law of the Roman Catholic Church were of special significance. It was principally through the canon law that the concepts and ideas of ancient Rome continued to make their presence felt even when, as a whole, Roman law itself had been forgotten. In the late 11th century, Roman law was rediscovered and made the subject matter of learned study and teaching by scholars in northern Italy, especially at Bologna. With the increasing demand for trained judges and administrators, first by the Italian city-republics and then by princes in other localities, students flocked to Bologna from all over Europe, until the study and teaching of law were gradually taken over by local universities. As a result of this process, Roman law penetrated into the administration of justice north of the Alps, especially in Germany and the Netherlands, where the Roman-law influence became particularly strong. In the Holy Roman Empire of the German nation, the reception of Roman law was facilitated because its emperors cherished the idea of being the direct successors of the Roman Caesars; Roman law, collected in the Code of Justinian (Corpus Juris Civilis) by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial law. Decisive for the reception, however, was the superiority of the specialized training of Roman-law jurists over the empiricist methods of lay judges and practitioners of the local laws. Equally decisive was the superiority of the Roman-canonical type of procedure, with its rational rules of evidence, over the local forms of procedure involving proof by ordeal, battle, and other irrational methods. Nowhere, however, did Roman law completely supplant the local laws, and, as far as the content of the law was concerned, various amalgams developed. Roman law strongly influenced the law of contracts and torts; canon law achieved supremacy in the field of marriage; and combinations of Germanic, feudal, and Roman traditions developed in matters of property and succession, or inheritance. The conceptual formulations in which the norms and principles of the law were expressed, as well as the procedural forms in which justice was administered, were also strongly Roman. The system that thus emerged was called the jus commune. In actual practice it varied from place to place, but it was nevertheless a unit that was held together by a common tradition and a common stock of learning. Although the law of the Corpus Juris Civilis (especially its main part, the Digest—the writings of the jurists) was, as such, in effect nowhere, it constituted the basis of study, training, and discourse everywhere. In spite of all local variety, the civil- law world experienced a sense of unity that corresponded to the strongly felt unity of European civilization. This unity was undermined by the religious divisions of the Reformation and Counter-Reformation and by the rise of nationalism that accompanied the unification and stabilization of the European nations and their struggle for hegemony. In the field of law the split found expression in the national codifications, through which the law was unified within each nation but was simultaneously set apart from that of all others. In Denmark codification occurred in 1683, in Norway in 1687, in Sweden-Finland in 1734, and in Prussia in 1794. Because of the personality of their promoter and the novel technique applied, great fame and influence were achieved by the Napoleonic codifications of the private and Page 16 of 70 Compiled by Rahul Kumar Singh criminal law of France, especially their central piece, the civil code of 1804 that came to be known as the Napoleonic Code. Codification continued after the Napoleonic era. In Belgium and Luxembourg, which had been incorporated into France under Napoleon, his codes were simply left in effect. The Netherlands, Italy, Spain, Portugal, and numerous countries of Latin America followed the French model not only by undertaking national codification but also by using the same techniques and arrangements. Naturally, their courts and legal scholars were, at least in the early 19th century, inclined to pay great attention to French legal learning. In Germany national codification came considerably later than in France. Only a commercial code had been uniformly created by the independent German states shortly after the revolution of 1848. The unification of the criminal law took place almost simultaneously with the political unification of the country, which occurred in 1871. Codification of the organization of the courts and of civil and criminal procedure came in 1879. But the German Civil Code (Bürgerliches Gesetzbuch für das deutsche Reich) was not completed until 1896, and it did not take effect until Jan. 1, 1900. Throughout the 19th century the vigorous German science of law exercised much influence in Austria (which as early as 1811 had codified its law in a technique different from that of France), in Switzerland, in the Nordic countries, and, later, in most of eastern Europe. When Swiss law was codified in 1907–12, it became the model for the Turkish codification of 1926 and strongly influenced the codification of China, which is still in effect in Taiwan. Owing to the different dates of codification and the different style and attitude of legal learning, the civil-law family of laws is thus divided into the French, or Romanist, branch and the German, or Germanic, branch. Their main features are determined by those of their prototypes. The legal system of Japan essentially belongs to the German branch, but it presents important features of its own. FEATURES Main feature of this legal family is its formation on the basis Roman law. Decisive role in shaping her belonged to medieval universities in Europe, where it was delivered to the study of Roman and canon law, and later began to develop and national law. The date of foundation Romano-Germanic legal family are considered to be 12-13 century. Bologna University in Italy has been alma mater of common law universities - Romano -Germanic legal system. As part of the Western university science right studied in its relationship with religion, philosophy, theology. Study Roman legal culture, the codification of Emperor Justinian, the rapid growth the authority of Roman law, the so-called "Reception of Roman law" had place in conditions of rapid economic development, growth, trade and cities. The study of Roman law, the process of becoming itself a legal science inspired by political events of the time, especially struggle between secular and ecclesiastical authorities, the growth of bureaucratic power structures. In each European country forming a national legal system was based on the study of Roman law and united with the record customary law of the country in clear and precise terms, the organization of Page 17 of 70 Compiled by Rahul Kumar Singh these customary law in a system. For the Romano-Germanic legal system perspective of the right in its relationship with morality as requirement should be, the optimal generalized rule of law, separation of law for public and private, the allocation of the various branches of law. In this family very fully developed civil law, as reflected in science civil law. Legal system Roman-Germanic family are well developed legislation. If long-term basic source of law in this family was the doctrine, in the modern era recognizes the rule of law, among other sources of law. In states that legal family is the fundamental law of the constitution systematization of legislation is carried out, there are codes. Forms state-legal acts are the decrees, regulations, administrative circulars and others. In the Romano-Germanic legal family law and the right not to be identified. It circumstance is reflected in the interpretation of the law, which provides courts. Limited role among the sources of law now belongs to the tradition, which was of great importance in the development of Romano -Germanic legal family. For the Roman-Germanic legal family is characterized by a developed legal system, within a framework recognizes the importance of judicial practice in as a source of law. R. David at work "The main legal systems modernity "notes that in Germany and France, the jurisprudence in some areas played a leading role in the development of law and where doctrinal works in some cases are nothing more than a statement of judicial practice. Of course, the importance of jurisprudence among the sources of law in the Romano -Germanic legal family is very different from English common law. Doctrine, general principles of law have meaning in as sources of law in the Romano-Germanic system. Practice ships of these countries shows that the doctrine and general principles used in interpreting and applying laws. In legal understanding are expression of an idea and sense of justice, the idea of the combination, compromise various interests, including private and state interests, society. Difference between Common Law & Romano Germanic Law (Civil Law) Common Law is a legal tradition that originated in England from the 11th Century onwards. Civil or Romano Germanic Law developed mainly in Continental Europe. There are a number of distinctive features that distinguishes Common Law from Romano Germanic Law. 1. Source of Law: The sources of law in Common law states appear, for most part, in reported judgements otherwise known as judicial precedence. Common Law focuses more on judge- made case laws. Sources of Common law also include legislations and codified statutes which are provided with specific applications and exceptions. In Romano Germanic law, sources of law are compiled and codified into an abstract collection for legal reference. Codes in civil law states are mostly succinct and are not provided with definitions, clarifications or exceptions. 2. Principle of Precedents: In Common law states, judges find a general principle in each of the cases and these principles are relocated into a current dispute that needs to be adjudicated. Common law promotes the doctrine of stare decisis which literally means ‘stick to decisions’. In Page 20 of 70 Compiled by Rahul Kumar Singh enactment of the Colonial Legislature existing at the commencement of this Ordinance, or which may afterwards come into operation. After independence, African countries by and large continued the limitations imposed on the application of customary laws. For instance the Judicature Act of Kenya, the law governing the application of customary laws, states, the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law Nigeria's Federal Evidence Act and Supreme Court Act, as well as state laws, impose similar limitations. Although their application is limited, customary laws and institutions continue to play a significant role in the lives of large segments of the population in African countries. This is because the limited subject matter areas they govern (including matters of personal status, property, and traditional authority) are those that impact greatly the day-to-day lives of the people. Significantly, for large segments of the African population, especially in rural areas, customary laws and institutions are the only available means of conflict resolution. Application of Customary Law: Nigerian Example Today, the application of customary law by courts in pluralist jurisdictions presents at least two issues. One involves the question of how to establish a particular customary law. This is mainly because (unlike state law, which tends to be uniform, relatively stable, and is issued formally and publicized) customary law in African jurisdictions is diverse and "remains largely unwritten, informal, and often difficult to ascertain." Thus, while these characteristics do not impede its use or effectiveness in the immediate area where it is routinely practiced, its application in remote locations or formal courts requires a procedure for its ascertainment. African countries have adopted different methods of ascertainment. For instance, if a customary law is invoked in civil proceedings before Nigerian courts (except in certain Sharia and area/customary courts), it may be ascertained in one of two ways: (1) through judicial notice (this occurs when the particular custom in question has been established in a superior court of record), or (2) via proof. When the invoked customary law cannot be judicially noticed, the person invoking the custom has the burden of proving it as fact. Nigerian law assigns broad meaning to what is relevant fact in this regard, stating "every fact is deemed to be relevant which tends to show how in particular instances a matter alleged to be a custom was understood and acted upon by persons then interested." The custom in question may also be established through expert opinions. In this regard, the "opinions of traditional rulers, chiefs, or other persons having special knowledge" of the custom in question is admissible. Also admissible as expert opinion is "any book or manuscript recognized as legal authority by the people indigenous to the locality" where the custom is in force. However, the custom may also be proved through the non expert opinion of any individual "who would be likely to know of its existence." This appears to make admissible the testimony of every member of a particular ethnic group on the existence of a particular custom in the group. Page 21 of 70 Compiled by Rahul Kumar Singh The second issue involves the question of whether a customary law is suitable for application. Nigerian law states that, " in any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good consciousness." Therefore, once the customary law in question is ascertained, it has to undergo a repugnancy test before it can be applied. The meaning of this test remains unclear today, as the Nigerian Supreme Court admitted in a 1995 case. As a result, its application has also remained inconsistent and subjective,i[26] as illustrated by a number of the Court's decisions. In 1976, the Court declared woman-to-woman marriage repugnant.ii[27] In 1989, the Court held that an Onitsha rite providing that the head of a deceased husband's family (Okpalla) has the right to alienate property of the deceased while his widow is still alive is "a barbarous and uncivilized custom which should be regarded as repugnant to equity and good conscience and therefore unacceptable." In 1994, the Court also held that marriage to a dead person was repugnant. However, the Court has also upheld some rites that clearly appear similar to those that it had invalidated in that they encroach on the rights of persons involved. Perhaps the most conspicuous example of this involves a Bini customary rule on succession. The Court found the rule, which mandates that upon the death of a hereditary chief, the eldest son has the exclusive right to inherit the deceased's primary residence (Igiogbe) compatible with natural justice, equity, and good conscience. In fact it has done so multiple times, including as late as April 2013. Q. What do you mean by interpretation? Explain the literal, golden and Mischief rule. Introduction: Statutory interpretation is the process of interpreting and applying legislation to decide cases. Interpretation is necessary when case involves subtle or ambiguous aspects of a statute. Generally, the words of a statute have a plain and straightforward meaning. But in some cases, there may be ambiguity or vagueness in the words of the statute that must be resolved by the judge. The reason for ambiguity or vagueness of a legislation is the fundamental nature of language. It is not always possible to precisely transform the intention of the legislature into written words. Interpreting a statute to determine whether it applies to a given set of facts often boils down to analyzing whether a single word or short phrase covers some element of the factual situation before the judge. The expansiveness of language necessarily means that there will often be equally good or equally unconvincing arguments for two competing interpretations. A judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then finally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations. Over time, various methods of statutory interpretation and construction have fallen in and out of favor. Some of the important rules of statutory interpretation are: Page 22 of 70 Compiled by Rahul Kumar Singh 1. Primary Rules - 1. Literal Rule (aka Plain Meaning Rule) - It means that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law must be read, word for word, and it should not divert from its true meaning. 2. Mischief rule - This rule attempts to determine the legislator's intention. Originating from a 16th century case in the United Kingdom, its main aim is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. Smith vs. Hughes [1960] 2 All E.R. 859 3. Golden rule - It is a compromise between the plain meaning (or literal) rule and the mischief rule. Like the plain meaning rule, it gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning. If the word only has one meaning, and applying this meaning would lead to a bad decision, the judge can apply a completely different meaning. 4. Rule of Harmonious Construction - when there are two provisions in a statute, which are in conflict with each other, they should be interpreted such that effect can be given to both and the construction which renders either of them inoperative and useless should not be adopted except in the last resort. Bengal immunity Co. vs. State of Bihar (1955) 6 STC 446 (SC). 2. Secondary Rules aka Rules of Language - 1. Noscitur a sociis - When a word is ambiguous, its meaning may be determined by reference to the rest of the statute. 2. Ejusdem Generis - When a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them e.g. vehicles in "cars,motor bikes,motor powered vehicles" would be interpreted in a limited sense and therefore cannot be interpreted as including air planes. 3. Reddendo Singula Singulis - When a list of words has a modifying phrase at the end, the phrase refers only to the last word, e.g., firemen, policemen, and doctors in a hospital. Here,"in a hospital" only applies to doctors and not to firemen or policemen. Literal Rule: A statues often contains a "definitions" section, which explicitly defines the most important terms used in that statute. However, some statutes omit a definitions section entirely, or fail to define a particular term. The literal rule, which is also known as the plain meaning rule, attempts to guide courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that of a word Page 25 of 70 Compiled by Rahul Kumar Singh which case it allows the language to be varied or modified so as to avoid such inconvenience. This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves. For example, imagine there may be a sign saying "Do not use lifts in case of fire." Under the literal interpretation of this sign, people must never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention of the person who made the sign is obviously to prevent people from using the lifts only if there is currently a fire nearby. This was illustrated in the case of Lee vs Knapp 1967 QB where the interpretation of the word "stop" was involved. Under Road Traffic Act, 1960, a person causing an accident "shall stop" after the accident. In this case, the driver stopped after causing the accident and then drove off. It was held that the literal interpretation of the word stop is absurd and that the requirement under the act was not fulfilled because the driver did not stop for a reasonable time so that interested parties can make inquiries from him about the accident. The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. Bedford vs Bedford, 1935, is another interesting case that highlighted the use of this rule. It concerned a case where a son murdered his mother and committed suicide. The courts were required to rule on who then inherited the estate, the mother's family, or the son's descendants. The mother had not made a will and under the Administration of Justice Act 1925 her estate would be inherited by her next of kin, i.e. her son. There was no ambiguity in the words of the Act, but the court was not prepared to let the son who had murdered his mother benefit from his crime. It was held that the literal rule should not apply and that the golden rule should be used to prevent the repugnant situation of the son inheriting. The court held that if the son inherits the estate that would amount to profiting from a crime and that would be repugnant to the act. Thus, the Golden rule implies that if a strict interpretation of a statute would lead to an absurd result then the meaning of the words should be so construed so as to lead to the avoidance of such absurdity. A further corollary to this rule is that in case there are multiple constructions to effect the Golden rule the one which favors the assessee should always be taken. This rule is also known as the Rule of Reasonable Construction. Advantages 1. This rule prevents absurd results in some cases containing situations that are completely unimagined by the law makers. 2. It focuses on imparting justice instead of blindly enforcing the law. Disadvantages 1. The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to depend on the result of each individual case. Whilst the golden rule has the advantage of Page 26 of 70 Compiled by Rahul Kumar Singh avoiding absurdities, it therefore has the disadvantage that no test exists to determine what is an absurdity. 2. This rule tends to let the judiciary overpower the legislature by applying its own standards of what is absurd and what it not. Mischief Rule: The Mischief Rule is used by judges in statutory interpretation in order to discover legislature's intention. It essentially asks the question: By creating an Act of Parliament what was the "mischief" that the previous or existing law did not cover and this act covers. This rule was developed by Lord Coke in Sir John Heydon's Case, 1584, where it was stated that there were four points to be taken into consideration when interpreting a statute: 1. What was the common law before the making of the act? 2. What was the "mischief or defect" for which the common law did not provide? 3. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth? 4. What is the true reason of the remedy? The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. Legislative intent is determined by examining secondary sources, such as committee reports, treaties, law review articles and corresponding statutes. The rule was further illustrated in the case of Smith v Hughes, 1960, where under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street." The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes. This rule is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and only when the statute was passed to remedy a defect in the common law. This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied. As seen In Smith v Hughes, the mischief approach gave a more sensible outcome than that of the literal approach. Royal College of Nursing v DHSS: The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (i.e. a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses it was Page 27 of 70 Compiled by Rahul Kumar Singh Held: It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act. Elliot v Grey: The defendant’s car was parked on the road. It was jacked up and had its battery removed. He was charged with an offence under the Road Traffic Act 1930 of using an uninsured vehicle on the road. The defendant argued he was not ‘using’ the car on the road as clearly it was not driveable. It was held: The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident. The statute was aimed at ensuring people were compensated when injured due to the hazards created by others. Corkery v Carpenter: The defendant was riding his bicycle whilst under the influence of alcohol. S.12 of the Licensing Act 1872 made it an offence to be drunk in charge of a ‘carriage’ on the highway. It was held: The court applied the mischief rule holding that a riding a bicycle was within the mischief of the Act as the defendant represented a danger to himself and other road users. According to S.12 of the Licensing Act 1872, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that of people being on the road on transport while drunk. Therefore a bicycle could be classified as a carriage. Advantages 1. The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules. 2. It usually avoids unjust or absurd results in sentencing Disadvantages 1. It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established. 2. It gives too much power to the unelected judiciary which is argued to be undemocratic. 3. In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy, however, such is not the case anymore. Q. What do you mean by Harmonious construction? When there is a conflict between two or more statues or two or more parts of a statute then the rule of harmonious construction needs to be adopted. The rule follows a very simple premise that every statute Page 30 of 70 Compiled by Rahul Kumar Singh Purpose To deal with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. To maintain the stability of the state and society by punishing offenders and deterring them and others from offending. Jury opinion In cases of civil law, the opinion of the jury may not have to be unanimous. Laws vary by state and country. Juries are present almost exclusively in criminal cases; virtually never involved in civil actions. Judges ensure law prevails over passion. In the criminal justice system, the jury must agree unanimously before a defendant is convicted. Case filed by Private party Government Decision Defendant can be found liable or not liable, the judge decides this. Defendant is convicted if guilty and acquitted if not guilty, the jury decide this. Standard of proof "Preponderance of evidence." Claimant must produce evidence beyond the balance of probabilities. "Beyond a reasonable doubt": Burden of proof Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur (The thing speaks for itself). "Innocent until proven guilty": The prosecution must prove defendant guilty. Type of punishment Compensation (usually financial) for injuries or damages, or an injunction in nuisance. A guilty defendant is subject to Custodial (imprisonment) or Non- custodial punishment (fines or community service). In exceptional cases, the death penalty. Examples Landlord/tenant disputes, divorce proceedings, child custody proceedings, property disputes, personal injury, etc. Theft, assault, robbery, trafficking in controlled substances, murder, etc. Appeals Either party (claimant or defendant) can appeal a court's decision. Only the defendant may appeal a court's verdict. The prosecution is not allowed to appeal. Commencement of proceedings State/People/Prosecution by summons or indictment By way of pleadings, Representatives of the state, Prosecutor, Attorney General. (b) Statutory Law and Non Statutory Law STATUTORY LAW NON STATUTORY LAW Statutory law is written law set down by a legislature. Non Statutory law is not the product of the legislature. Sources of statutory law is national and State legislatures or local municipalities. Their source is in the customary rules, case law or precedents. Page 31 of 70 Compiled by Rahul Kumar Singh This is a formal written law of a country or state, written and enacted by its legislative authority. It is the rules of human action established by usage and legally and regarded as legally binding by those to whom the rules are applicable. Statutory Law can replace any non statutory law. Non statutory laws are changed according to the changing needs and conditions of each society. It may be overruled by legislation. (c) Precedent and Legislation Legislation 1. Generally, the statute law is brief, clear, easily accessible and knowable. 2. It can be understood by an ordinary educated person. 3. “Ignorantia facti doth excusat; Ignorantia juris non excusat” (Ignorance of fact is an excuse, but ignorance of law is no excuse.) this maxim is concerned with all the people. 4. Legislation is a new source of law. At the same time, it has a unique feature, that it can abolish any law or laws which are out-dated. This abrogative power is most advantageous than the other sources of law. 5. It allows division of labor. Therefore it increases efficiency. It is one of the advantages of legislation. 6. It only makes the law. Making of the law is the only function. It does not enforce the law. 7. The statues are made by a separate branch of Executives on the instructions of Cabinet of Ministers at centre and states. 8. The statute declares certain acts as wrongs and punishable before the commission of the acts to which it applies. It is the advantage of legislation. 9. Anticipation is the advantage of legislation. It foresees the consequences of certain wrongs. 10. The field of legislation is vast. It can fill up the vacancy. Whenever a defect of lacuna is seen, legislation comes into play. 11. Legislation is complete, certain and systematic. 12. It assumes the form of abstract propositions. 13. Salmond says: – “Statute law is coin of the realm ready for immediate use… 14. Legislation is a Latin word. Legis + Lation. Legis = law; Lation = make. It is “Litra scripta” i.e. it is embodied in an authoritative form of written words. 15. Law is codified. Page 32 of 70 Compiled by Rahul Kumar Singh Precedent 1. Case law is very minute, complex and not easy to understand. 2. It can be understood only by lawyers, judges and jurisprudents. 3. Ignorance of precedent is not concerned with the ordinary person. Precedent is concerned only by lawyers, judges and jurisprudents. 4. Precedent has only constitutive efficiency. It produces a very good law. Its operation is irreversible. It cannot go back upon its footsteps. 5. It interprets the minutest points of man’s thoughts and applies it. 6. It makes the law and enforces it. 7. It is only judge-made law. 8. First a wrong act was occurred. Thereafter the Court interpreters its character, circumstances. Case-law operates retrospectively. 9. Anticipation is quite inconsistent with precedent. The term ‘precedent’ itself denotes seeing back. 10. Concerning precedent, there must be a problem remained ‘unsettled’. 11. Case law is incomplete, uncertain and unsystematic. 12. It is merged in the concrete details of the actual cases. 13. While case law is gold in the mine- a few grains of the precious metal to the ton of useless matter.” 14. The duty of Court is to interpret the “letter of the law”. Case-law has no letter of the law itself. 15. The precedents are compiled in journals only. (d) Differences between Supreme Legislation and Subordinate Legislation: Supreme Legislation 1. SALMOND defines: “supreme legislation proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority”. 2. Supreme legislation is one and parliament has the supreme authority. Page 35 of 70 Compiled by Rahul Kumar Singh International law regulates the behaviour of states whereas national law the behaviour of individuals. International law concerns with the external relations of the states and its foreign affairs. Municipal law concerns with the internal relations of states o and its domestic affairs. International law is a law between equal sovereign states in which no one is supreme to the other but municipal laws the w law of the sovereign over the individuals subject to the sovereign rule. whether international law is a law or not is a debatable question and this debate is continued whereas municipal law i a law in a real sense and there is o doubt about it. However international law and municipal law relates to each other and some justice considers that both from a unity being manifestation of single conception of law while others say that international law constitutes an independent system of law essentially different from the municipal Law. Thus there are two theories knows as monastic and dualistic. According to monastic and the same thing. The origin and sources of these two laws are the same, both spheres of law simultaneously regulate the conduct of individuals and the two systems are in their essence groups of commands which bind the subjects of the law independently of their will. According to dualistic theory international law and municipal law are separate and self contained to the extent to which rules of one are not expressly tacitly received into the other system. The two are separate bodies of legal norms emerging in part from different sources comprising different difference subjects and having application to different objects. (h) Civil Law Common Law Legal System Legal system originating in Europe whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. Legal system characterized by case law, which is law developed by judges through decisions of courts and similar tribunals. Role of judges Chief investigator; makes rulings, usually non-binding to 3rd parties. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charge Makes rulings; sets precedent; referee between lawyers. Judges decide matters of law and, where a jury is absent, they also find facts. Most judges rarely inquire extensively into matters before them, instead relying on arguments presented by the part Countries Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana), most of Europe United States, England, Australia, Canada, India Constitution Always Not always Precedent Only used to determine administrative of constitutional court matters Used to rule on future or present cases Jury opinion In cases of civil law, the opinion of the jury may not have to be unanimous. Laws vary by state and country. Juries are present Juries are comprised only of laypersons — never judges and, in practice, only rarely lawyers — and are rarely employed to decide Page 36 of 70 Compiled by Rahul Kumar Singh almost exclusively in criminal cases; virtually never involved in civil actions. Judges ensure law prevails over passion. non-criminal matters outside the United States. Their function is to weigh evidence presented to them, and to find fa History The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Common law systems have evolved primarily in England and its former colonies, including all but one US jurisdiction and all but one Canadian jurisdiction. For the most part, the English-speaking world operates under common law. Sources of Law 1. Constitution 2. Legislation – statutes and subsidiary legislation 3. Custom 4. International Law 5. [Nota bene: It may be argued that judicial precedents and conventions also function within Continental systems, but they are not generally recogn 1. Constitution (not in the UK) 2. Legislation – Statutes and subsidiary legislation 3. Judicial precedent – common law and equity 4. Custom 5. Convention 6. International Law Type of argument and role of lawyers Inquisitorial. Judges, not lawyers, ask questions and demand evidence. Lawyers present arguments based on the evidence the court finds. Adversarial. Lawyers ask questions of witnesses, demand production of evidence, and present cases based on the evidence they have gathered. Evidence Taking Evidence demands are within the sovereign inquisitorial function of the court — not within the lawyers’ role. As such, “discovery” by foreign attorneys is dimly viewed, and can even lead to criminal sanctions where the court’s role is usurp Widely understood to be a necessary part of the litigants’ effective pursuit or defense of a claim. Litigants are given wide latitude in US jurisdictions, but more limited outside the US. In any event, the litigants and their lawyers undertake to a Evolution Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues in different ways, from different perspectives Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues in different ways, from different perspectives Page 37 of 70 Compiled by Rahul Kumar Singh ( j)Distinction between Interpretation and construction 01. Interpretation means the art of finding out the true sense of an enactment by giving the words their natural and ordinary meaning whereas Construction means drawing conclusions in the basis of the true spirit of the enactment. (Cooley, Constitutional Limitations, Vol-1, p.91) 02. Interpretation takes place when we look for the original meaning of the constitution. All other forms of constitutional analysis engage in construction 03. Interpretation takes place when the meaning of the constitution is clear (by any broadly accepted theory of constitutional interpretation). Construction takes place when the meaning of the constitution is contested. 04. Originalists engage in interpretation, even when they focus on original intentions, expectations or methods. All other forms of constitutional analysis engage in construction. 05. Courts may only interpret the constitution. Elected officials are free to construe the constitution. 06. To find out the real meaning of any legislation is the main function of interpretation.On the other hand, construction is applying to find out the general and simple meaning of a statute. 07. Interpretation is the activity of identifying the semantic meaning of a particular use of lan‐ guage in context. Construction is the activity of applying that meaning to particular factual circumstances. 08. By interpretation we find out the way of analysis of any statute. By construction we try to conclude it. Page 40 of 70 Compiled by Rahul Kumar Singh (e) Induction and Deduction Research, (f) Other Kinds of Research, (g) Case Law Analysis, (a) HISTORICAL RESEARCH Historical Research means “Finding out the previous law in order to understand the reasons behind the existing law and the course of its development.” P.M.Bakshi in his essay “Legal Research and Law Reform” stated Historical Research as “On the Archives Building in Washington, there is a famous inscription which reads: “ALL THAT’S PAST IS PROLOGUE”. These are pregnant words and not mere rhetoric. The past often explains the present, most vividly”. Historical research in this context is not meant a discussion of the history of each rule of law or of each statutory provision for the sake of mere intellectual delight or for mere record. Like all other types of research required for the purpose of law reform, historical research is useful in law where the present statutory provision or rule of law has raised meaningful queries and it becomes necessary to explore the circumstances in which the present position came about. Not often, an exploration of the historical material gives a clue to the reasons why a particular provision was framed in the form in which it now appears. This often removes certain doubts, or even supplies to the researcher the reasons that justify the present provision - reasons which may not otherwise be apparent. Obviously, where such a fruit is yielded by historical research, it has its own utility. It prevents one from making a suggestion for change in the law which one was tempted to make (before knowing the past), but which now appears to be unnecessary. Secondly, historical research may often reveal that alterations in the law on particular lines which are now tentatively under consideration had already been thought of in the past also, in the earlier attempts at reform of the law, but had been rejected for sound and valid reasons. Thirdly, historical research would often show that a particular existing provision, fully justifiable at the time when it was introduced, is no longer so justifiable because the reasons that justified the original inclusion of that provision are no longer valid. Historical research reveals the reasons, which might otherwise remain obscure. Finally, on more general level, when the history of a particular idea which has been given a concrete shape in the law is studied in depth, it shows the gradual evolution of the law on certain lines, thus showing the general trend of change. It is true that some jurists fight shy of history. Jeremy Bentham stated “we are told, had scant respect for history and contributed little to an understanding of legal and social change in a continuum.” Page 41 of 70 Compiled by Rahul Kumar Singh But it is now well recognised that in many cases there is certain logic in the way in which the law evolves, even though, in some other cases, one may, no doubt, find that the law had in the past developed rather on haphazard lines. Of course, when one speaks of historical research, one is not confined to pure law. Even though the material directly under study may be legal, that is to say, the source to be consulted may be a traditional legal source, the factual material that comes to light and the knowledge of ideas gathered from such a source, may often have an interest that transcends the exclusively legal field. In fact, social and legal factors cannot be always reduced to water tight compartments. Any adequate appraisal of the precise nature and rate of change in a particular country must also pay special attention to the effect of relevant physical, demographic, technological and ideological variables. Notwithstanding Bentham’s view that “a science of law and legislation, could be created which was governed by laws as invariable as those which governed the physical world.” Sources of Historical Material: What, then, are the sources from which historical material may be drawn? Here the legal researcher sometimes feels a handicap. Notwithstanding the availability of general books on Indian legal history and Indian constitutional history, the researcher will find that when he sits down to tackle a particular subject assigned to him in a project of law reform, the historical material is not easily traceable. At least, it is not as easily traceable as Precedents. So far as pure statute law goes, some of the commentaries, no doubt, supply the reader with the text of the corresponding provisions in earlier statutes. But this does not always fully satisfy the curiosity of the researcher, and may not, in every case, yield sufficient light as to why a certain provision was phrased in a certain manner in the corresponding earlier statute. For this purpose, he will have to consult the relevant legislative debates. Fortunately, so far as central Acts go, these are excellently preserved in the national archives or state archives in regard to the older Acts. If the researcher finds it necessary (as he often may) to know the contemporaneous judicial understanding or exposition of the earlier provision, he will certainly like to go to the sources that contain such exposition. Experience has shown that one of the best sources to be consulted for this purpose are the earlier' commentaries on the particular statute. (b) DOCTRINAL RESEARCH (or) TRADITIONAL RESEARCH: Introduction: Doctrinal legal research into Legal Rules, principles, concepts or doctrines. It involves a rigorous systematic exposition, analysis and critical evaluation of legal rules, principles or doctrines and their inter-relationship. It arranges the existing law in order and provides thematic parameters for such an order. It also concerns with critical review of legislations and of decisional processes and their underlying policy. Page 42 of 70 Compiled by Rahul Kumar Singh Doctrinal legal research, thus, involves: (i) Systematic analysis of statutory provisions and of legal principles involved therein, or derived there from, and (ii) Logical and rational ordering of the legal propositions and principles. The conventional legal approach to the law is all about doctrine. Legal academics understand that the language of judicial opinions represents the law. The classical form of legal scholarship was doctrinal research, in which a researcher examined the content of a legal opinion to evaluate whether it was effectively reasoned or to explore its implications for future cases. Doctrinal research was grounded in a descriptive premise that reasoned argument from doctrinal premises actually explained judicial decisions. In other words this type of research may also be called as “Traditional Research”. In a doctrinal research, a legal scholar takes one or more legal propositions as a starting point as focus of his study. Dr.S.N.Jain observed that “doctrinal Research involver’s analysis of case law is arranging, ordering and systematizing legal proposition and study of legal institution through legal reasoning or rational deduction”. Sources of doctrinal research: Ordinarily conventional legal sources are used in doctrinal research. Scholar undertaking doctrinal research takes secondary data relevant to his proposition. His sources not only include Statutes or enactments – but also reports of committees; legal history, judgment etc. Acts passed by state legislatures and parliament comes under this category of sources. Judgments of Supreme Court and high courts also come under above mentioned sources. They have primary authority. Text books, periodicals, commentaries also come under sources of doctrinal research but they are not as authentic as original sources like enactment and case published by authorised publisher. Essential characteristics of doctrinal research: 1. This type of research involves analysis of legal proposition or legal concept. 2. Legal propositions from enactments, administrative rules or regulations, cases of courts can be a part of doctrinal research. 3. Conventional sources of data are used. Doctrinal research looks at the following issue. a. The aim of preferred values. b. The problems posed by the gap between the policy goal and the present state of achievement. c. Availability of attentive choice for the implementation of goals. d. The prediction and consequences that were made. Basic tools of Traditional Researcher: Page 45 of 70 Compiled by Rahul Kumar Singh The comparative legal research is used to study legislative texts. Jurisprudence and also legal doctrines, particularly of foreign laws. It stimulates awareness of the cultural and social characters of the law and provides a unique understanding of the way law develops and works in different cultures33. It also facilitates better understanding of the functions of the rules and principles of laws and involves the exploration of detailed knowledge of law of other countries to understand them. To preserve them, or to trace their evolution34.Accordingly, comparative legal research is beneficial in at legal development process where modification, amendment and changes to the law are required. The most common comparative legal scholarship is cross jurisdictions comparison of laws of different legal systems. It is typical tor researchers who undertake this research to examine the law as it is while at the same time provide ideas and views for future legal development. For instance, Kierkegaard 35 examined the “rules applicable to the formation of electronic contracts in the United States and the European Union”. Another example is found in Pure Economic Loss in Europe “where a group of researchers took a painstaking task of comparing laws governing pure economic loss in 13 different legal systems across the European Union”. Nowadays, comparative approach also refers to the study of specific aspects of the law from the perspective of Shari’ah in comparison to civil law. So far as the countries which may be chosen for the purpose of comparison it must be kept in mind that most of our present day laws have been borrowed from the English Law and we are well acquainted with that system. Therefore, we can have recourse, very often to the English law. We can also leave recourse to the laws of the countries belonging to common Wealth e.g. Australia, Canada, New Zeland, etc.. Recourse to the law of United States of America and continental countries e.g. France, Germany, Switzerland and Sweden can also be had. Here again it could not be out of context to refer that as regards interpretation of Constitutional and Administrative Laws, we rely heavily on U.S., French and British practice. The material which should be accepted for comparison should be generally the codified law. But if there is no codified law, on a particular subject, the authoritative works of eminent persons, papers and articles may also he examined for the purposes of comparison. Effort should always be made to have primary source for comparison. But if primary sources are not available only then recourse may be had to the secondary and tertiary sources. But in case of secondary and tertiary sources their authenticity must be checked and rechecked two or more primary, secondary and tertiary sources may be checked with each other. Difficulty, however, is faced when the primary, secondary or tertiary sources of law of other countries are in the language not understood by the researcher. He can obtain and make use of only translation. If possible, in the language he understands. But if the translation has not been the work of a specialist, then it cannot be relied upon as a suitable material for comparison. If these handicaps are properly handled, this method of research is very useful for suggesting reform in law. However, in the name of reform, foreign legal system should not be imported in this country Page 46 of 70 Compiled by Rahul Kumar Singh blindly. Only such reforms are suggested as suits to the Indian ethos and which is necessary for the progress and development of the country. (e) INDUCTION AND DEDUCTION RESEARCH: Induction and deduction 1) The choice between induction and deduction depends on a series of factors, but above all on the objectives of our study. It can also be linked to and determine the differences between qualitative and quantitative methods. 2) In law both approaches are used: Deduction Research (also called syllogism) 1) General proposition or premise : To steal is an act contrary to Sec.1 of the Theft Act,1978. 2) Minor proposition : Anne has stolen a book. 3) Conclusion : Anne has acted contrary to Sec.1 of the Theft Act, 1978.38 Inductive Research (reasoning by analogy) 1) An eyewitness saw Anne take a book from the shelf and leave the store (witness could be mistaken) 2) Anne was stopped outside the store with the book by the store detective. 3) That particular book had not been noted out of the store by the computer sales system (computer could be wrong) 4) 1-3 taken together proves the physical act (actus Reus) of theft at the level of evidence. 5) Crimes usually require mental element, the mens rea. (Anne alleges that she did not intend to take the book). 6) Consider Sec.1 of the Theft Act 1978. This also demonstrates that the application of rules requires taking into account the social and legal context of the act. Rules provide the starting point for deliberations (f) OTHER KINDS OF LEGAL RESEARCH: 1. Applied and Fundamental Research: Applied research (or) Action Research aims at finding a solution for an immediate problem. Here the researcher sees his research in a practical context. While in Fundamental Research (or) Pure Research (or) Basic Research, the researcher is mainly concerned with Page 47 of 70 Compiled by Rahul Kumar Singh generalization and with the formulation of a theory. He undertakes research only to derive some increased knowledge in a field of his inquiry. He is least bothered about its practical context or utility. Research studies concerning human behavior carried on with a view to making generalizations about human behavior fall in the category of fundamental or pure research. But if the research (about human behavior) is carried out with a view to solving a problem (related to human behavior), it falls in the domain of applied or action research. The central aim of applied research is to discover a solution for some pressing practical problem, while that of fundamental research is to find additional information about a phenomenon and thereby to add to the existing body of scientific knowledge. The ‘applied’ scientist is thus works within a set of certain values and norms to which he feels committed. A sociologist, for example, when works with a social problem to find solution therefor and proposes, through a systematic inquiry, a solution or suggests some measures to ameliorate the problem, his research takes the label of ‘applied’ or ‘action’ research. But when he undertakes a study just to find out the ‘what’, ‘how’ of the social problem, his inquiry takes the nomenclature of ‘pure’ or ‘fundamental’ research. However, the above-mentioned ‘distinguishing factor’ between the ‘applied’ and ‘fundamental’ research need not be conceived as a ‘line’ putting the two ‘across’ the ‘line’ forever or an ‘either-or’ dichotomy. In fact, they are not mutually exclusive. There is a constant interplay between the two, each contributing to the other in many ways. 2. Statistical Research: This kind of research is very significant in the area of science especially Economics, Commerce etc. But so far as law is concerned, it can be said without doubt, that this will be of some help only for suggesting law reform. However, there are people who are of the opinion that this kind of research may be applied in the field of law as well. The most difficult aspect of this kind of research is the collection and examination of statistics. It is a specialized function. A person having no knowledge of statistical activity; cannot undertake this kind of research. However, in limited areas requiring simple statistics, this process may be applied, e.g., in the area of land reform; disposal of pending cases by the court enhancement in wages, and other monetary benefits etc., In order to collect statistics, field research in the form of sample survey , opinion polls, questionnaires etc is conducted and it can be conducted efficiency only by a qualified person with an aptitude for research and having professional training and legal knowledge. In case, the person conducting statistical research has no legal knowledge, the involvement of persons from the area of law is must as it facilitates the smooth conduct of the work for the purposes of law reform. Since law is a behavioural science, therefore statistical research should be applied with caution and only where it is necessary to do so. 3. Critical research: As we know that the objective of legal research is not only to propose suggestions for legal reform. It may be carried on for many other purposes as well. Where, however, the object of research is only to indicate in which way it is to be carried on, such a research is termed as critical research because in such cases the objective is to ascertain a common principle or norm and hence, it is also termed as ‘normative research’ . In this kind of research gathered material is thoroughly examined and a common thread is ascertained which ultimately becomes the basic norm. Page 50 of 70 Compiled by Rahul Kumar Singh documents, journals, reports, the web and more. The chart below describes the flow of the sources of data collection. → Sources of Primary Data Collection Primary data will be the data that you gather particularly with the end goal of your research venture. Leverage of Primary data is that it is particularly customized to your analysis needs. A drawback is that it is costly to get hold of. Primary data is otherwise called raw information; the information gathered from the first source in a controlled or an uncontrolled situation. Cases of a controlled domain are experimental studies where certain variables are being controlled by the analyst. The source of primary data is the populace test from which you gather the information. The initial phase in the process is deciding your target populace. For instance, if you are looking into the attractiveness of another washing machine, your target populace may be newly-weds. Clearly, it’s impracticable to gather information from everybody, so you will need to focus on the sample size and kind of sample. The specimen ought to be arbitrary and a stratified random sample is frequently sensible. In our washing machine illustration, sub populations may incorporate adolescent couples, moderately aged couples, old couples, and previously wedded couples. → Sources of Secondary Data Collection You can break the sources of secondary data into internal as well as external sources. Inner sources incorporate data that exists and is stored in your organization. External data refers to the data that is gathered by other individuals or associations from your association’s outer environment. Examples of inner sources of data incorporate, but are not restricted only to, the following:  Statement of the profit and loss  Balance sheets  Sales figures Page 51 of 70 Compiled by Rahul Kumar Singh  Inventory records  Previous marketing studies If the secondary data you have gathered from internal sources is not sufficient, you can turn to outside sources of data collection, some outside sources of data collection include:  Universities  Government sources  Foundations  Media, including telecast, print and Internet  Trade, business and expert affiliations  Corporate filings  Commercial information administrations, which are organizations that find the data for you Questionnaires Survey According to Wikipedia, a questionnaire is a research instrument consisting of a series of questions and other prompts for the purpose of gathering information from respondents. Although they are often designed for statistical analysis of the responses, this is not always the case. The questionnaire was invented by Sir Francis Galton. Questionnaires are widely used for both quantitative and qualitative research. Questionnaires often use various measuring scales to obtain information from the respondents. To obtain the bio data of the respondents, we use nominal scale as it serves as label or identification such as gender and age, which often does not involve calculations. To gather respondents' preferences, we use ordinal scale which is used to arrange objects or alternatives according to their magnitude in an ordered relationship. To obtain information related to attitude, we use rating scales. Rating asks the respondents to estimate the magnitude of a characteristic or quality regarding certain object or thing. Questionnaire is designed both for descriptive as well as analytical surveys. In a descriptive survey, the questionnaire will normally use nominal and ordinal scales because it concerns primarily with the particular characteristics of a specific population of subjects. It does not required the examination of dependent and independent variables. Examples of questions asked in a descriptive survey are shown below:  State the location of your company  How many workers are employed by your company?  When was the company founded? Page 52 of 70 Compiled by Rahul Kumar Singh On the other hand, rating scale is always used to measure attitude or opinion of the respondents in an analytical survey. In an analytical survey, it normally needs to identify independent, dependent and extraneous variables based on a certain conceptual framework. A researcher needs to conduct a thorough literature review by paying attention to any existing research and theory relevant to the research problem. Once the variables are determined, they are built into a questionnaire using rating scale measures, the most popular one being the Likert scale. Likert scale questions can consist of three items, four items, five item, six items, seven items and more. The ratings obtained from the respondents are then summarized or averaged up to reflect a certain variable, such as job satisfaction. They can be used to analysed any causal relationship with other variables. Example of Likert-type questions are shown below: Strongly Disagree Strongly Agree  . Need additional staff to manage electronic commerce 1 2 3 4 5  Difficult to justify the cost with desired benefits 1 2 3 4 5  Information from the electronic commerce is not useful 1 2 3 4 5 When we are designing a questionnaire, we have to pay attention to the following issues:  Are the instructions clear and unambiguous?  Can the questions be understood; are they free from jargon, esoteric terminology, unsuitable assumptions and ambiguity?  Are the respondents posses the requisite information and knowledge to answer the questions?  Is the wording of questions appeared offensive and embarrassing to the respondents?  Is the wording of questions lead to bias through leading the respondent to particular answers? Questionnaire can be administered by post, face to face distribution of the questionnaires or by interviewing the respondents. If you are conducting questionnaire survey by interview, you have to keep interviewer bias to the minimum by following certain rules such as  Record exactly what the respondent answers  Do not answer on behalf of the respondent  Read the questions clearly and slowly.  Do not show approval or disapproval of any answer Page 55 of 70 Compiled by Rahul Kumar Singh (ii) Bibliography “A list of reference materials (involving any kind of content ; text, music, paintings, video etc.) elucidating the type, nature and other detailed information on the basis of name, date, place and genre of the materials.” OR “A complete categorical compilation of any type of content based on its creator(s), editors and time (of production, distribution).” Bibliography, also known as works cited, reference list is basically an orderly study and referencing of books and source materials used in academic research. It might or might not include any information on the literary analysis or criticism of the materials cited. Etymology and Origin: The etymology of the term bibliography can be semantically traced back to the New Latin bibliographia. It is a Greek word meaning “copying of books.” bibli (books) and graphia -graphy (writing) The concept was in practice by Greek writers in the first three centuries AD and was referred to as the copying of books by hand. By the turn of 12th Century, the concept took a literal form and was referred to as the intellectual practice of compiling books and materials. The modern day notion of bibliography, however, only took off in the 17th Century. Importance and Use of Bibliographies A mandatory requirement of copyright laws and academic conventions is that whenever a research paper is written, there should be a section at the end of it where you acknowledge the sources used. So, bibliography means listing all the sources which you have consulted while writing your essay or research article. The sources may be in the form of printed and online books, websites, web documents, web blogs, newspaper articles, journals, pod casts, wikis, unpublished material, maps etc. Citation ensures that the information contained in the research paper is based on logic, truth and facts. Absence of references or bibliography indicates that the paper may be a piece of plagiarism. Standard Citation Styles Used in Bibliographies There are various formats used in the creation of a bibliography such as the American Psychological Association (APA), Modern Language Association of America (MLA) and Chicago Manual of Style and Council of Biology Editors (CBE). The APA style of referencing is common in the papers written on topics of social sciences; MLA style is used in field of humanities; and CBE is a popular citation style in the natural sciences. Page 56 of 70 Compiled by Rahul Kumar Singh (iii) Data Analysis Although some researchers suggest that disassembling, coding, and then sorting and sifting through your data, is the primary path to analyzing data / data analysis. But as other rightly caution, intensive data coding, disassembly, sorting, and sifting, is neither the only way to analyze your data nor is it necessarily the most appropriate strategy. It has been argued that they also fit the notice, collect, and think process invariably also belonging to the data analysis process. In the thinking process the researcher examines the things that have been collected. The goals of the data analysis are: 1. To make some type of sense out of each data collection 2. To look for patterns and relationships both within a collection, and also across collections, and 3. To make general discoveries about the phenomena you are researching. To use an analogy: After sorting the pieces of a jigsaw puzzle into groups, it is important to inspect individual pieces to determine how they fit together and form smaller parts of the picture (e.g., the tree part or the house part). This is a labor intensive process that usually involves a lot of trial and error and frustration. A similar process takes place in the qualitative data analysis. When analyzing data, one compares and contrasts each of the things that have been noticed in order to discover similarities and differences, build typologies, or find sequences and patterns. In the process one might also stumble across both “wholes” and, quite literally, holes in the data. While the jigsaw puzzle approach to analyzing data is frequently productive and fruitful, it also entails some risks and problems that also translate to qualitative data analysis. Experienced qualitative social scientists have always been aware of the potential problems, and organize their work to minimize the adverse effects. For example, when coding data, the simple act of breaking down data into its constituent parts can distort and mislead the analyst and distort the final data analysis. A serious problem is sometimes created by the very fact of organizing the material through coding or breaking it up into segments in that this destroys the totality of philosophy as expressed by the interviewee-which is closely related to the major goal of the study that informs the data analysis. A proper data analysis acknowledges this problem and, in fact, takes precautions already when first analyzing data. (iv) Sati - The burning of the widow Sati is described as a Hindu custom in India in which the widow was burnt to ashes on her dead husband's pyre. Basically the custom of Sati was believed to be a voluntary Hindu act in which the woman voluntary decides to end her life with her husband after his death. But there were many incidences in which the women were forced to commit Sati, sometimes even dragged against her wish to the lighted pyre. Page 57 of 70 Compiled by Rahul Kumar Singh Though Sati is considered a Hindu custom, the women, known as Sati in Hindu religious literature, did not commit suicide on their dead husband's pyre. The first woman known as Sati was the consort of Lord Shiva. She burnt herself in fire as protest against her father who did not give her consort Shiva the respect she thought he deserved, while burning herself she prayed to reborn again as the new consort of Shiva, which she became and her name in the new incarnation was Parvati. The women in Hindu mythology who were exceptionally devoted to their husbands symbolized the truthful Indian wife who would do everything for their husband and they were named Sati. The meaning of the word sati is righteous. But as written earlier the women named Sati, in Hindu religious literature, did not commit suicide on their dead husband's pyre. Therefore the custom of burning the widow on her dead husband's pyre probably did not evolve from religious background but from social background. There are different theories about the origins of Sati. One theory says that Sati was introduced to prevent wives from poisoning their wealthy husbands and marry their real lovers. Other theory says that Sati began with a jealous queen who heard that dead kings were welcomed in heaven by hundreds of beautiful women, called Apsaras. And therefore when her husband died, she demanded to be burnt on her dead husband's pyre and so to arrive with him to heaven and this way to prevent the Apsaras from consorting with her husband. There are also other theories about the origins of Sati. Even though Sati is considered an Indian custom or a Hindu custom it was not practiced all over India by all Hindus but only among certain communities of India. On the other hand, sacrificing the widow in her dead husband's funeral or pyre was not unique only to India. In many ancient communities it was an acceptable feature. This custom was prevalent among Egyptians, Greek, Goths, Scythians and others. Among these communities it was a custom to bury the dead king with his mistresses or wives, servants and other things so that they could continue to serve him in the next world. Another theory claims that Sati was probably brought to India by the Scythians invaders of India. When these Scythians arrived in India, they adopted the Indian system of funeral, which was cremating the dead. And so instead of burying their kings and his servers they started cremating their dead with his surviving lovers. The Scythians were warrior tribes and they were given a status of warrior castes in Hindu religious hierarchy. Many of the Rajput clans are believed to originate from the Scythians. Later on other castes who claimed warrior status or higher also adopted this custom. This custom was more dominant among the warrior communities in north India, especially in Rajasthan and also among the higher castes in Bengal in east India. Among the Rajputs of Rajasthan, who gave lot of importance to valor and self sacrifice, wives and concubines of the nobles even committed suicide, when they came to know that their beloved died in battlefield. In other parts of India it was comparatively low. And among the majority of Indian communities it did not exist at all. A few rulers of India tried to ban this custom. The Mughals tried to ban it. The British, due to the efforts of Hindu reformers like Raja Ram Mohan Roy outlawed this custom in 1829. There aren't exact figures about the number of Sati incidences. In general, before this custom was outlawed in 1829, there were a few hundred officially recorded incidences each year. Even after the Page 60 of 70 Compiled by Rahul Kumar Singh the service on 27th Jan, 1995 and was residing in a rented house in Kenezou valley, Kohima owned by Dr. Zakiebastu Angam. The accused person as a teacher of the college used to visit the complainant’s house and he was respected by the complainant as well as by her parents. In course of such visit the accused voluntarily told the complainant that he was in love with her and ultimately succeeded. On the basis of his assurance to marry her, the complainant made sexual relationship with the accused and as a result of which she became pregnant. In that condition when she persuaded the accused to marry her, he deferred the proposal on the plea that he had to take his parents permission. However he was agreed to marry her secretly. Consequently the accused took her in front of the God he worshipped and put vermilion on her forehead and accepted her as his lawful wife. In spite of secret marriage, he succeeded to motivate her for an abortion which took place in the Putonou Clinic, Kohima in Oct. 1993. After that she became pregnant again and was forced to under go abortion for second time by the accused in April 1994 in the Carewell Nursing Home at Dimapur. Ultimately the accused deserted her. This complaint was registered as Case No.1/95 u/s 312/420/493/496/498-A of IPC. The accused then filed a petition under section 482 of Cr.P.C for quashing the complaint which was dismissed by High Court. Thereupon he went to Supreme Court by Special Leave Petition (SLP). After that the Supreme Court passed the order compelling the appellant to pay maintenance to the respondent pending the resolution of criminal proceedings against him. Issues:Whether the compensation during the pendency of the criminal case and arrears of compensation at the same rate is payable to the victims of the rape by the accused. 1. Whether legal representative should be provided to the complainants of sexual assault. 2. Whether the victims must be provided a list of advocates willing to act in these cases. 3. Whether legal assistance must be provided to the victims of the rape at the police station. 4. Whether it is a duty of the police to inform the victim of her right to representation before any questions are asked. 5. Whether anonymity of the victim of rape must be maintained, as far as necessary. 6. Whether it is necessary to set up a Criminal Injuries Compensation Board to provide the victims of rape the financial support. Judgment: In this landmark case the Supreme Court passed an order according to which the appellant was ordered to pay Rs. 1000 per month as interim compensation to the respondent during the pendency of the criminal case. The appellant shall also pay the arrears of the compensation at the same time to the respondent from the date; the complaint was filed to the present date. Taking in mind, the pitiable condition of the women in India, the court felt necessity of indicating the board parameters in assisting the victims of rape, which are as follows: 1. The complainants of sexual assault cases should be provided with legal representative. It is necessary to have a person who is well experienced with the criminal justice system. The duty of the victim’s advocate is not only to inform her about the nature of proceedings, to prepare for the case or to Page 61 of 70 Compiled by Rahul Kumar Singh assist her in the police station and in the court but also to provide her guidance by informing her how she will obtain help from different agencies for example mind counseling and medical assistance. 2. A list of advocates who are interested to act in this case must be kept at the police station for victims who don’t have particular lawyer in mind or whose own lawyer is unavailable. 3. Legal assistance must be provided to the victim because she may very well be in a distressed state upon arrival at the police station, the guidance of a lawyer when she is questioned must be provided. 4. The police must be under a duty to inform the victim of her right to representation before any questions are asked. 5. In all the rape trials the anonymity of the victim must be maintained as far as necessary. 6. It is most necessary, having regard to the Directive Principles mentioned in Article 38(1) of the Constitution of India to set up a Criminal Injures Compensation Board. Rape victims generally suffer from financial crisis. They are so traumatized that they cannot continue their employment. 7. Compensation must be provided by the court on conviction of the offender and by the Criminal Injures Compensation Board whether or not the conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earning due to pregnancy and the expenses of the child birth if this occurs as a result of rape. This was recognized by the Court in the case Delhi Domestic Working Women’s Forum vs. Union of India (1995) (II) GEETA HARIHARAN V. RESERVE BANK OF INDIA AIR 1999 SC 1149 Facts of the case: Githa Hariharan or the petitioner and Dr. Mohan Ram were married in Bangalore on 1982 and they had a child on 1984. In December 1984 the petitioner applied to the RBI for 9% Relief Bond to be held in the name of her son for Rs.20, 000, indicating that she is the natural guardian of her child for the purpose of investment. RBI returned the application advising the petitioner to make an application which contains the signature of the father or a certificate from any competent authority which can prove that she is the natural guardian of her child in case of investment. This petition was related to petition for custody of the child stemming from a divorce proceeding pending in the District Court of Delhi. The petitioner filed an application for the maintenance of herself and her child, arguing that the father had shown no sympathy towards his child and he was not interested in the welfare of his child. He was only claiming to be the natural guardian without discharging any other obligations. On the basis of this fact, the petitioner claims that Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 are unconstitutional or violates the Article 14 and 15 of Page 62 of 70 Compiled by Rahul Kumar Singh ISSUE 1) Has the Petitioner any cause of action for the case? 2) Whether Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of Guardianship and Ward Act are unconstitutional ? 3) Whether the above mentioned provisions are against Article 14 & 15 of Constitution of India and frame sex- discrimination ? 4) Whether Section 6(a) of HMA and Sec. 19 (b) of GW Act are liable to be struck down ? JUDGEMENT 1) Issue No. 1:The petitioner was not allowed to sign as the guardian of her son, which deprived her from asserting her guardianship right. She had rightly filed the suit to ascertain her right as given in the constitution and therefore there is cause of action for the suit. 2) As issue No. 2 & 3 are identical to each other, both the issue taken up together for order. Sec. 6 (a) of Hindu Minority and Guardianship Act, 1956 is the main source of dispute. This word says that a father, after him the mother, is the guardian of a minor son or unmarried daughter. Here the word “After” is the main cause of dispute and the reserve bank of India considered the word “after” and holds opinion that after means, after the demise of father the mother will come into the act and said definition is under challenge. The word “after” necessary does not mean after the death of the father. It actually bear the meaning or intended to mean ‘in absence of’ – be it temporary or permanent inability of father to take care the child because of ailment or any physical problem or if the father is indifferent towards child then the mother can act as the guardian of the child . (Vithalrao Gajre Vs. Pathankhan (1970) 2 SCC 717).Therefore in such circumstances it would be supposed that the father is ‘absent’. The main purpose is to serve the welfare of child in best possible way. Here in this case the father has given written consent in favour of mother so on the said angle also the mother can easily act as guardian of minor child. One of the basic principal of our constitution is gender equality. The word “after” may mean a disqualification of mother to act as guardian during the lifetime of the father. This would definitely lead to gender discrimination. The father being the dominant personality cannot possess superior position upon mother in the matter of guardianship as both of them fall in same category. 3) Issue No. 3 These provisions should not be struck down as some of its part is constitutional and some of it is unconstitutional. The court should interpret the unconstitutional part in such a manner that it fall within constitutional limit. So the provisions cannot be struck down as not wholly unconstitutional. Page 65 of 70 Compiled by Rahul Kumar Singh FACTS and PROVISIONS As per the statutory Regulation No. 46 under the Air India Corporation Act 1953, the retirement age of an air hostess was fixed either upon attaining the age of 35 years or on marriage if it take place within four years of entering into the job or on 1st pregnancy whichever occurs earlier. But in the case of assistant flight pursuer, the age of retirement was 58 years. As per the Regulation No. 47 under the same act, services of an air hostess can be extended upto 10 years at the option of the Managing Director if the air hostess is medically fit. These regulations were challenged by a no of air hostesses affected by them on the ground that it violates the Article 14 of the Constitution of India and the case of Nargesh Meerza was filed in Bombay High Court which was subsequently transferred to the Supreme Court of India as per its direction. The regulation no. 46 and 47 have previously been amended as per the Khosla award in 1968. In 1972, it was further amended as per the award of Mahesh tribunal. ISSUES 1) Whether Regulations No. 46 is violative of Articles 14, 15(1) & 16 of the constitution? 2)Whether Regulation No.47 is arbitrary and unreasonable? 3)Whether the AHs & AFPs belong to same class ? 4)Whether this court is empowered to amend the rules in Regulations No. 46 & 47? JUDGMENT There is discrimination if and only if equals are treated differently. Difference in treatment of unequals does not necessarily amount to discrimination. Considering the mode of recruitment of AHs and AFPs, their qualifications, their promotional avenues and the retirement benefits which they enjoy , it is very clear that they belong to different categories. It is observed by the court that though the Khosla awards and Mahesh award is binding on the parties, they can't be prevented from challenging the Regulation No. 46 & 47 in this court and this court is empowered to try the case. The court further observe that though the rule which prohibits the AHs from marrying within fours of joining the service is a very sound and reasonable and it helps in promotion of family planning program, the other part which says that the service of AHs will stand terminated on her 1st pregnancy is unreasonable since if the first condition of not marrying within four years of joining is satisfied, it is unreasonable and arbitrary to terminate the service if the AHs becomes pregnant for the first time since pregnancy is not a disability but one of the natural consequence of marriage and also the contention that pregnancy of an AH puts pressure on the corporation to arrange a substitute AH is baseless. Since the corporation is governed by the Maternity Relief Act 1961 , the AHs are entitled to claim maternity leave. So the last portion of Regulation 46 is unconstitutional, void and violative of Article 14. Generally the retirement age is fixed after considering some relevant factors. The contention of AI that retirement at the age of 35 is in the interest of efficiency and health of AHs is baseless since nothing can Page 66 of 70 Compiled by Rahul Kumar Singh prove that a woman becomes weak at the age of 35 or 45 years. The other contention that a young and attractive AH can cope with difficult and awkward situations in a better way is also baseless and it smacks of perversion, treating AH as a showpiece for entertainment of passengers. The rule given in Regulation No. 47 suffers from constitutional infirmity since there is no specific guidelines or principles on the basis of which the Managing Director can decide whether to extend the service of an AH and it purely depends upon his discretionary will and powers and in many cases he can be prejudiced while exercising the executive power . Hence treating it as a violation of Article 14 of the constitution, it has been struck down . (v) VISHAKA vs. STATE OF RAJASTHAN [AIR 1997 SC 3011: JT 1997 (7) SC 384] FACTS :- 1) This Writ Petition had been filed at the Supreme Court of India by certain NGOs, under the name of 'Vishaka' for the enforcement of Fundamental Rights of working women under Articles 14,19 and 21 of the Constitution of India. 2) It was an act to safeguard women from sexual harassment at work place. 3) The case was filed by certain social activists and NGOs. 4) This case originates from an incident that took place in September 1992. A village-level social worker (saathin) working at a development programme sponsored by the Government of Rajasthan, Smt. Bhanwari Devi was gang raped by five men headed by Ramkaran Gujjar. Bhanwari was raped due to her protest on child marriage of an year old infant daughter of Ramkaran Gujjar. The Trial Court acquitted the accused and the Hon'ble Rajasthan High Court on December 1993, gave a judgement that "it is a case of gang-rape which is committed out of vengeance". 5) This case is not directly linked with the Bhanwari rape case but is an outcome of it. Judgement: There is no particular thing which can be called judgement in this case; the Supreme Court gave a guideline (Vishaka guideline) which must be followed by the employers in the workplaces as well as other responsible persons or institutions to avoid sexual harassment of women at workplaces. According to this guideline it is the duty of the employer or other responsible persons in the work places or other institutions to prevent or deter the acts of sexual harassment by taking the required steps. Sexual harassment include such unwelcome behaviour 1. Physical contact and advances; 2. A demand or request for sexual favour; 3. Sexually coloured remark; Page 67 of 70 Compiled by Rahul Kumar Singh 4. Showing pornography; 5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. There are certain steps by taking which we can prevent sexual harassment at workplaces which are mentioned bellow: 1. Express prohibition of sexual harassment at the workplace should be notified, circulated and published in a proper manner. 2. The rules and regulations of the private or government sectors should contain the prohibition of sexual harassment and must provide the penalties if anyone conduct such offence. 3. As regards to the private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment Act, 1946. 4. Appropriate work conditions must be provided to the employees which include leisure, health and hygiene to ensure that there is no hostile environment towards the women in the workplace and which provide to the women a believe that they are safe at there workplace. Where such conduct amount an offence under the Indian Penal Code (IPC) or any other law, the employer must take appropriate action in accordance with the law by making complaint with the appropriate authority. Where such a conduct amount to some misconduct in employment, as mentioned in the rules and regulations of various private or government sectors, the employers must take action according to the penalties mentioned in those rules and regulations against those misconduct. There must be a complaint mechanism in the employer’s organization to redress the complaint made by the victim. To support the complaint mechanism there must be a complaint committee. The complaint committee should be controlled by a woman and half of the members of the committee must be women. To avoid undue pressure or influence from the senior level, the complaint committee must be associated with a third party, either it may be NGO or any other organization, third party must be familiar with the sexual harassment. The complaint committee must also make a report to Government department mentioning the complaints and actions taken against those complaints. Employees must be allowed to raise the topic of sexual harassment in the workers meeting and also it must be discussed in the employer- employee meeting. Awareness of the rights of female employees in this regard must be created within all female employees in a proper and lawful manner. If sexual harassment takes place as a result of act or omission of a third party or outsider, the person in charge or employer must take appropriate action to support the affected person in a proper and lawful manner.