COURSE MANUAL

LEGAL METHODS
Fall,2022

(AY 2022- 2023)

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

Instructors:

Dipika Jain, Sandeep Suresh, Mohsin Alam Bhat,

Sandeep Kindo, Biswanath Gupta, Sourav Mandal,
Anjana Ramanathan, Namrata Mukherjee,
Vishavjeet Chaudhary, Saksham Shukla, Shaurya
Upadhyay, Amulya Purushothama

Assistant instructors:

Katyayani Sinha, Sanya Darakhshan Kishwar

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 PART IV

LECTURE PROGRAMME

Module Lecture Topic

1 UNDERSTANDING LAW, MORALITY, & JUSTICE

2 FOUNDATIONS OF MODERN LAW

3 INTRODUCTION TO THE INDIAN LEGAL SYSTEM

4 SOURCES OF LAW AND HOW TO READ A CASE

5 INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM

AND JURY TRIALS

6 IS LAW POLITICAL?

7 LEGISLATION AND SUBORDINATE LEGISLATION

8 CANONS OF STATUTORY INTERPRETATION

9 LOGIC AND LEGAL REASONING

10 THE DOCTRINE OF PRECEDENT

11 LOCATION OF RATIO AND ITS CONTROVERSIES

12 PROCEDURAL CONCEPTS IN LAW

13 LAW AND JUSTICE

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 PART V

WEEKLY READINGS

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

Weeks I and II

UNDERSTANDING LAW, MORALITY & JUSTICE

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

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

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

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

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

Essential readings:

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

pages 616-645.

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

Recommended readings:

1) Art Spiegelman, Maus (Excerpts)

2) Ian Mcleod, Legal Theory (Palgrave Macmillan, 4th ed.) Chapter 2, pages
17-37
3) Scott J. Shapiro, Legality, (2013)

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 Weeks II-III

THE FOUNDATIONS OF MODERN LAW

Law is widely considered to draw its authority from the powers of political
institutions. Others consider law to be grounded in judicial decisions and the
customary practice of nations. What are the sources of law? What are the
concepts and principles underlying the law?

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

Essential readings:

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

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

2) Overview of the Common and Civil Law Traditions

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

Week IV

INTRODUCTION TO THE INDIAN LEGAL SYSTEM

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

Essential Readings:

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

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

2) Saadat Hasan Manto, The New Constitution (A short story)

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

Recommended Readings:

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

Law in the Indian Republic (Princeton University Press, 2018), pages 1-3,
5- 6.
2) Mahendra Pal Singh and Niraj Kumar, ‘Tracing the History of legal System
in India’ in The Indian Legal System: An Enquiry (Oxford University
Press, 2019), pages 1-23.
3) V.S. Deshpande, “Nature of Indian Legal System” in Joseph Minatour
(ed.), Indian Legal System (Indian Law Institute, 2nd Ed., 2006) pages 1-
21. [available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/738/5/Nature
%20of%20the%20Indian%20Legal%20System.pdf]

Week V

SOURCES OF LAW AND HOW TO READ A CASE

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

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

Essential Readings:

1) ‘Citing Responsibly: A Guide to Avoiding Plagiarism’, 2020–21, The

George Washington University Law School’s Committee on Academic
Integrity
2) Orrin S. Kerr, “How to Read a Legal Opinion: A Guide for New Law
Students”, 11 The Green Bag 2d (2007), pages 51-63.
3) French Cour de Cassation case (on complete reparation for injuries), Cass.
2e civ., Feb 22, 1995, 1996 D. Jur. 69
4) Lucy D’Souza v. State of Goa, 1989 SCC Online Bom 278

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 Weeks VII-VIII

IS LAW POLITICAL?

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

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

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

Essential Readings:

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

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

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

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

3) Anand Teltumbde The Persistence of Caste: The Khairlanji Massacres

and India’s Hidden Apartheid (2010).
a. Chapter 1: Introduction, p.12-16, p.20-34
b. Chapter 5: The Khairlanji Murders, p.92-106

4) ADM Jabalpur v. S.S. Shukla, 1976 AIR 1207 – Justice H.R. Khanna’s
dissent
5) Vishakha & Ors. v. State of Rajasthan, AIR 1997 SC 301

Recommended Reading:

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 1) Upendra Baxi, “Law, Politics and Constitutional Hegemony: The Supreme
Court Jurisprudence and Demosprudence” in Sujit Choudhry, Madhav
Khosla & Pratap Mehta (eds.), The Oxford Handbook of Indian
Constitutional Law (Oxford University Press, 2016).

2) Kalpana Kannabiran, “Constitutional Geographies and Cartographies of

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

3) Madhu Ramnath, Woodsmoke and Leafcups: Autobiographical Footnotes

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

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

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

Chakravorty Spivak in Imaginary Maps (Routledge, 1994).

6) Sharmila Rege, Dalit Women Talk Differently: A Critique of 'Difference'

and towards a Dalit Feminist standpoint position, 33 (44) EPW 39-46
(1998)

7) Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547

8) Nandini Sundar, ‘Mimetic Sovereignties, Precarious Citizenship: State

Effects in a Looking-Glass World’ Journal of Peasant Studies (2014), 41:4,
469-490

9) Women Against Sexual Violence and State Repression (WASS), Bearing

Witness – Sexual Violence in South Chhattisgarh (2017), pp. 22-47, 66-77

10)The Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013

11) Anuj Bhuwania, ‘Courting the People: The Rise of Public Interest
Litigation in Post-Emergency India’, Comparative Studies of South Asia
Africa and the Middle East (January 2014)

12) Shyam Divan, ‘Chapter 37 – Public Interest Litigation’, in Sujit Choudhry,

Madhav Khosla & Pratap Mehta (eds.), The Oxford Handbook of Indian
Constitutional Law (Oxford University Press, 2016), pages 692-708

13) Chebrolu Leela Prasad v. State of Andhra Pradesh, Civil Appeal No. 3609
of 2002

Films:

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 1) Fandry (2013)

2) Court (2015) Available on Netflix

3) Nangeli (2021) Available at:

https://www.youtube.com/watch?app=desktop&v=Z_ONsKB9Kqs

4) Bawandar (2000)

5) Kaala (2018) Available on Amazon Prime

6) Mandela (2021) Available on Netflix

7) Karnan (2021) Available on Amazon Prime

Week IX

LEGISLATION AND SUBORDINATE LEGISLATION

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

Articles 245 to 255 of the Indian Constitution distinguishes between the

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

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

Essential Readings:

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

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

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

3) Right to Information Act, 2005

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

Recommended Readings:

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

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

Redressal) Act, 2013
3) Uma Narayan, “Sources of Indian Legal Information”, 7 Legal
Information Management 2 (2007), pages 133-139.

4) Harsimran Kalra, ‘PRS Legislative Research, Public Engagement with the

Legislative Process: Background Note for the Conference on Effective
Legislatures’ (November 24, 2011)

Week X

CANONS OF STATUTORY INTERPRETATION

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

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

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

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

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

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

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

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Mischief rule- courts should interpret a statute so as to suppress the mischief
and advance the remedy of the statute

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

of the purpose behind it

Essential Readings:

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

Interpretation”, in Legal Process (1994) pages 1374-80.
2) James Holland and Julian Webb, Learning Legal Rules – A Student’s
Guide to Legal Method and Reasoning, (2010, Oxford University Press),
pages 262-270.

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

pages 18-41.

Week XIII

LOCATION OF A RATIO AND ITS CONTROVERSIES

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

Distinction between Ratio Decidendi and Obiter Dictum

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

Obiter dicta can be understood as all the parts of

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

Essential Readings:

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

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

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

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Recommended Readings:

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

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

3) Lalman Shukla v. Gauri Dutt, 1913 (11) ALJ 489

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

Interrogating Contract Theory”, 82 Modern Law Review 1 (2019), pages
59-66.
5) James Holland and Julian Webb, Learning Legal Rules – A Student’s
Guide to Legal Method and Reasoning, (2010, Oxford University Press),
pages 181-225

Week XIV

PROCEDURAL CONCEPTS IN LAW

This session will cover two procedural aspects of the law.

A. Res judicata

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

parties before the same court.

Essential Readings:

1) Daryao v. State of U.P

B. Res Sub Judice

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

C. Doctrine of Prospective Overruling

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

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

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 the 2 Judge Bench of the Supreme Court, and finally before the 5 Judge
Bench of the Supreme Court.

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

Essential Readings:

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

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

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

Recommended Readings (edited, excerpts):

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

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

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

Recommended Films:

1) Aligarh (2015)

2) Pariyerum Perumal (2018)

Week XV

LAW AND JUSTICE

Essential Readings:

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

1) Micheal Sandel, Justice, ‘Chapter 10 – Justice and the Common Good’,

(2009, Penguin Books)

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

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 3) Colin Gonsalves, ‘The Bhopal Catastrophe: Politics, Conspiracy and
Betrayal’, Economic and Political Weekly, vol. 45, no. 26/27, 2010, pages
68–75. 

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

(2014)

Recommended Reading:

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

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

Recommended Documentary:

1) One Night in Bhopal (BBC, 2004) Available on YouTube:

https://www.youtube.com/watch?v=rJg19W8x_Ls

2) Bhopali (Van Maximilian Carlson, 2011)

Week XVI

REVISION/ REVIEW

This will be a revision and review week.

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