STATUTE

Instructor: Col Sarvjit Singh, Retd

STATUTE

1. Understanding the term Statute

2. Sources
3. Statute Law
4. Law made judicially
5. Conclusion

Term: Statute
1. Generally defined as the written will of the
legislature solemnly expressed according to the
forms necessary to constitute it Law of the
State. It denotes personification of authoritative
blue print & words used in the same constitute
part of law.
As per Lord Blackburn, it may mean what is
popularly called an Act of Parliament or a code,
or all the Acts passed in one session.[River Wear
Commrs v. Adamson (1876-7)2 AC 743]

Halsburys laws of England states that a statute is a

declaration of the law as it exists or as it shall be
from the time at which such statute is to take
effect.[ Halsburys law of England, fourth edn. Vol
44, para 801]
2. The Constitution of India uses the term Law. Law
includes any ordinance, order, bye law, rule,
regulation, notification, custom or usage having in
the territory of India the force of law. [Art 13 (3) (a)]

Term: Statute

3. Our constitutional set up provides for a federal structure

with a double set of legislative organs- Union & States.
Parliamentary legislations Central Acts;
State legislations State Acts.
4. Statutes includes Acts passed by the Imperial or
Provincial legislature in Pre-Independence days, as well
as Regulations.
5. It is an edict of the legislature (Vishnu Pratap Sugar
works (P) Ltd v. Chief Insptr of Stamp, UP AIR 1968 SC
102) .

Term Statute

6. Sec 3(29), The General Clauses Act, 1897Saving for previous enactments, rules and byelaws - defines Indian Law with reference to law
enacted by the Central legislature.
7. Term Regulations as per sec 3 (50) 0f The Gen
Clauses Act, 1897, means a Regulation made by
the President under Art 240 of the Constitution,
and includes a Regulation made by the Central
Govt under the GoI Act,1870; or 1915; or 1935.

Term Statute

8. Act or Enactment. Act means the whole Act, while

Enactment may refer to the whole or a section or part
of a Section. Sec 3 (19) of The Gen Clauses Act, 1897
defines enactment to include a Regulation [as defined in
sec 3(50) GCA 1897are] and any Regulation of the
Bengal, Madras or Bombay Code and also any provision
contained in any Act or Regulation.
9. Acts are cited by the Title or Short title or by ref to the
No. and year of passing and any provision in an
enactment by ref to section or sub-section in which
contained.

Term Statute

10. Statute and Statute Law? Terms used

interchangeably. The term Statute law understood
to includes statute and the judicial interpretation
and application ie the statute and case-laws
together.
11. The statute is expressed in definite written words
indicating the purpose and means of achieving that
purpose. No uniformity in the structure and
arrangements of a Statute followed by various
countries.

Term Statute

12. However, every statute comprises of Formal and Material

portions.. The different parts of a statute are not mutually
exclusive and serve as internal aids in interpretation.
Formal portion. Includes
(a) the long title,
(b) the preamble,
(c) the short title, and
(d) the commencement and extent
clause.

term Statute

Material portion. Includes

(a) Interpretation or definition clause,
(b) operative sections,
(c) procedural provisions,
(d) exceptions,
(e) provisions regarding delegated
legislations,
(f) Repeal and
Amendment clause ; and
(g) Schedules.

SOURCES OF LAW
1. FORMAL
a. Statutes
of law shapes)
b. decisions of courts.

HISTORICAL

2. MATERIAL
(from which matter

LEGAL

LEGISLATIONS PRECEDENTS CUSTOMS AGREEMENTS

PROFESSIONAL OPINIONS
& TREATIES

STATUTE & LAW MADE JUDICIALLY

1. Statute or written law or enacted law or codified law
has its source in legislations.
2. Other sources which produce unwritten laws which
the sovereign authorities give legal force but not its
content, are judicial ingenuity, professional
discussions, popular tendency etc
3. The rule or principle established by a judicial
decision lies In Concreto ie it exists nowhere in
general or abstract form.

Statute & Law made judicially

4.
As per Austin- law made judicially is made on the occasion of a
judicial decision specific to the case and not for establishment of
a rule. The judge legislates as properly judging and not as
properly legislating.
Case References:
a) A judgment is authority only for what is actually
decided[Jai Prakash Prasad v. Rameshwar Prasad (AIR (1986)
Patna, 239)] and not for what logically flows from that decision.
b) Judgment must be read in light of facts of the case..in
which delivered and no more should be read into it [ Sarva
Shramik Sangh v. Indian Hume Pipe Co Ltd (AIR (1993)SCW
982)]

LAW MADE JUDICIALLY

Do judges make law?
Two diametrically opposite views:
1. Traditional (Declaratory Theory) judges
only discover
& declare the existing law. Main
exponents Sir Mathew
Hale & William
Blackstone. And
2. Legislative theory of Precedent
propounded by
Bentham & Austin judges
make law.

Law made judicially: Precedents

The term precedent means anything said or done
which furnishes a rule for subsequent conduct.
Fundamental rule that the duty of judges is to expound &
not to legislate.
Judges are constitutional invigilators & statutory
interpreters. Their function is jus dicere and not jus
dare( to declare the law & not to make it).
As per the Declaratory theory, judges do not make a law
properly so called, yet they have great weight and
authority in expounding, declaring and publishing what is
law.

Precedents

1. The abstract principle laid down in a decision is called

Ratio Decidendi. As per Prof Goodhart -ratio
decidendi of a case is the conclusion reached by the
judge on the basis of material facts of the case.
2. It is only the ratio decidendi (reason for the decision
embodying a legal principle) that has the force of law,
but NOT statements of law made Obiter (by the way).
3. Obiter Dicta statements are statements of law which
go beyond the requirements of the case and such
statements do not even bind the lips that utter them.

Precedents

Vishaka Case [AIR 1997 SC 3011]

In context of sexual harassment, judgment
unprecedented.
SC acknowledged & relied on International treaty
(CEDAW 1980) that had not been transformed into
municipal law; SC provided the first authoritative
definition of sexual harassment in India adopting the
route of judicial legislation.
The SC affirmed that any International Convention not
inconsistent with FR and in harmony with its spirit must
be read into the provisions of FR to enlarge the meaning
and content to promote the object of Constitutional
guarantee.

Precedent: Visakha case

In absence of any legislation in India relating to

sexual harassment at the workplace, the court
stated it was free to rely on CEDAW, in interpreting
Art 14- right to equality before law; Art 15prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth; Art 19 freedoms;
and Art 21 protection of life and personal liberty.
The guide-lines issued by the SC plugged a
legislative vacuum, given that all decisions of the SC
are treated as law under Art 141 of the Constitution.

Precedent: visakha case

The Protection of Women Against Sexual Harassment at

Workplace Bill, 2010, was passed and received
Presidential assent on 23 Apr 2013.

Restitution of Conjugal right & Hindu woman

Marriage constitutes the very basis of social
organization.
Hindu law- Marriage a sacrament; indissoluble & eternal.
Manus declaration neither by sale nor by desertion is
wife released from the husband was hitherto applied to
women and not men. Inherent injustice on wife in Hindu
law.

Precedent: Restitution of conjugal rights

The remedy of Restitution of conjugal rights u/s 9 of

The Hindu Marriage Act,1955 is a positive remedy
that requires both parties to the marriage to live
together and cohabit.
The AP High Court in T Sareetha v. TS Subbhiah
[AIR 1983 AP 356] held that the remedy u/s 9 of
The Hindu Marriage Act,1955 directly affects the
right to life (Art 21), right to privacy and right to
equality (Art 14). Hence ultra vires or
unconstitutional.

Precedent: restitution of conjugal rights

This view of AP High Court was dissented from by

the Delhi High Court in Smt Harvinder Kaur v.
Harmander Singh [AIR 1984 Del 66] and the
constitutional validity of sec 9 was upheld as being
intra vires.
This controversy set at rest by the SC in Saroj Rani
v. Sudharsahan Kumar [AIR 1984 SC 1562] by
upholding the constitutional validity of sec 9 HMA,
1955 and of it not being in violation of Art 14 and
Art 21 of the Constitution.

precedent

1. Adherence to precedents is neither a rigid and

inflexible rule of law nor universally applicable.
2. Decision of one HC has no over-riding effect on
decision of another HC [ Jayakrishna Panigrahi v.
Surekha Panigrahi (AIR 1996 AP 19]
3. As per Art 141, the decision of the SC is binding
on all the HCs and all other inferior courts. A
judicial precedent of a particular HC is
authoritative and binding on all other inferior
courts under that HC.

STARE DECISIS: DOCTRINE OF

1. The Doctrine of Stare Decisis recognized by the
Constitution of India (Art 141) lays down that the
law declared by the SC shall be binding on all
courts within the territory of India.
2. The maxim- Stare decisis et non quieta movere
embodies the principle of stare decisis and
means to stand by decisions and not to disturb
what is settled.
3. The rule of Stare decisis originated in England
during the 17th century and is based upon

Stare Decisis

4. It is generally a rule of practice adopted by the

courts that precedents ought to be adhered to
ensuring continuity, uniformity and stability in
the law.
5. The judicial decorum and legal propriety demand
that where a single judge or Division bench does
not agree with the decision of a bench of coordinate jurisdiction, the matter shall be referred
to a larger Bench.
6. As per practice followed by SC there is a
hierarchy within the court itself so that larger
benches over-rule smaller benches [AR Antulay

Stare Decisis

7. The English principle that size of the bench does

not matter has not been followed by our courts.
8. In Art 225 the word Law administered in any
existing HC also refers to case law. Therefore the
pronouncements of the Pre-Constitutional Privy
Council shall be binding on HCs unless they are in
conflict with the ruling of the SC or the SC overrides such decisions.

Stare Decisis

9. In case of conflict between judgment of PreConstitutional Privy Council and that of the
Federal Court, the former will prevail.
10. The decisions of erstwhile Federal Courts are
binding on the HCs only, so far as they do not
clash with those of the SC.

Stare Decisis

11. The following category of decisions of SC have no

binding force:
a) Obiter Dicta. Statements which are not part
of the ratio decidendi.
b) A decision per incurium. Decision given in
ignorance of
the terms of a statute or rule
having the force of a
statute.
c) A decision passed sub-silentio. Without
any argument or debate on the relevant question.
d) An order made with the consent of the
parties & with reservation that it should not be
treated as a
precedent.

CONCLUSION
1. The word Statute is derived from Latin verb
Statutere, which means to be made or to set
up or erected.
2. A statute is an established rule, formal regulation
or ordinance, enacted by the legislature (Art 13
(3)).
3. It is an edict of the legislature (Vishnu Pratap Sugar
works (P) Ltd v. Chief Insptr of Stamp,UP AIR 1968 SC 102) .

4. The chief source of law is Legislations. The other

sources being Customs and Precedents

Conclusion

5. The maxim- Stare decisis et non quieta movere

embodies the principle of stare decisis and means
to stand by decisions and not to disturb what is
settled and is recognized by the Constitution of
India (Art 141)
6. To simplify the subject matter in a Statute it is
presented in a written form divided into a formal
portion and material portion.

Next session we shall cover

Classification of Statute