Types of Primary Sources:

Constitution:
1. It is the highest law of the land and the source of all other laws that originate
in that country.
2. It also has a binding value on all courts of the country. This means that the
law given in the constitution must necessarily be followed by all courts of that
country.
3. Example – Constitution of India, Constitution of the United States etc.
Central or State Legislature Laws:
1. Statutes passed by the legislative authorities of a country or a state.
2. All such laws have to be in consonance with the constitution of the country.
3. These laws will also have a binding value on all courts of the country,
however, in terms of hierarchy, the constitution will take precedence before a
central law or a state law and similarly, a central law will take precedence
before a state law.
4. Example – Indian Penal Code, 1860, the Indian Contract Act, 1872.
Court Judgments:
1. The judgments passed by the Supreme Court will be binding on all High
Courts and lower courts. In other words:
2. Similarly, the judgments passed by High Courts will be binding on all lower
courts. However, the judgments passed by a High Court will not be binding on
the Supreme Court or any other High Court. Therefore, Supreme Court or
another High Court may or may not necessarily follow the judgment.
3. Do note that binding value of a judgment passed by a constitutional bench (5
judges) will always supersede that of a division bench (2 judges) of a
Supreme Court. The same ‘bench strength’ rule follows with any other
judgment from any other court

 Binding and Persuasive Value of Sources

 1. Binding Value: Any source, the application of which cannot be negated by
the courts will have binding value. Mostly, all primary sources are binding in
nature, but the binding nature of a source follow a rule of jurisdiction.
Example,
 •  Laws passed by the state legislature are binding only in the jurisdiction of
that state, however, the laws passed by the central government are binding
on the entire country.
 •  Similarly, judgments passed by the state High Courts are only binding on
that High Court and lower courts located in the jurisdiction of that very state.
However, the judgments passed by the Supreme Court of India are binding on
 every court and tribunal located in the country.
• NOTE: A source may be categorised as primary and yet non binding. Laws
passed by any country or judgments passed by courts of any country shall
undoubtedly be primary sources of law, but they will not be binding anywhere
apart from their jurisdiction.
(Example: Judgement passed by the Supreme Court of United States  shall
be a primary source of law, but it will not create a binding effect outside the
jurisdiction of that Court, i.e. The United States of America)
 2. Persuasive Value: Any source, the application of which is non-binding and
merely persuasive will have persuasive value.
 •  It is always preferable to rely on binding sources, however, due to a lack of
such sources it becomes useful to rely on sources with persuasive value.
 •  Do note that while relying on a source which is merely persuasive, it
becomes the duty of the lawyer to persuade the court to accept the reasoning
of the  source. A few scenarios where the persuasive value of the source may
be accepted by the court are:
 –  If the case being relied upon and the dispute at hand have similar facts and
legal issues involved;
 –  The case being relied upon is the most recent authority discussing the
issue at hand;
 –  Although the present court has never decided such an issue, every other
court that has heard such issue has concluded in a similar manner.
 •  The persuasive value of a book or an article increases manifold if it is
authored by a reputed jurist who is an expert of that area of law.
A
 absence
 acceptable
 accessible
 accommodation
 accomplish
 achievement
 acquire
 address
 advertisement
 advice – (noun)
 advise – (verb)
 amateur
 apartment
 appearance
 argument
 athletic
 attendance
B
 basically
 beginning
 belief – indicating the noun
 believe – indicating the verb
 beneficial
 business
C
 calendar
 campaign
 category
 cemetery
 challenge
 characteristic
 cigarette
 clothes
 column
 committee
 commitment
 completely
 condemn
 conscience
 conscientious
 conscious
 controversy
 convenient
 correspondence
 criticism
D
 deceive
 definitely
 definition
 department
 describe
 despair
 desperate
 development
 difference
 difficult
 disappointed
 discipline
 disease
E
 easily
 effect
 eighth
 either
 embarrass
 encouragement
 enemy
 entirely
 environment
 especially
 exaggerate
 excellent
 existence
 experience
 experiment
F
 familiar
 February
 finally
 financial
 foreign
 foreigner
 formerly
 forty
 fourth
G
 general
 generally
 genius
 government
 grammar
 grateful
 guarantee
 guidance
H
 happily
 height
 heroes
 humorous
 hypocrite
I
 ideally
 imaginary
 immediate
 incredible
 independent
 influential
 insurance
 intelligent
 interference
 interrupt
 introduce
 island
 its – for possession
 it’s – for “it is” or “it has”
J
 jealous
 jealousy
K
 kneel
 knowledge
L
 later
 legitimate
 length
 library
 lightning
 likely
 loneliness
 lose (verb)
 loose (adjective)
 lovely
 luxurious
M
 maintain
 maintenance
 manageable
 management
 manufacture
 marriage
 married
 millionaire
 misspell
 mischievous
 money
 mortgage
 muscle
 mysterious
N
 naturally
 necessary
 neighbor / neighbour
 ninety
 noticeable
 nowadays
O
 obedient
 obstacle
 occasional
 occurred
 official
 opinion
 opportunity
 opposition
 ordinary
 originally
P
 particular
 peculiar
 perceive
 performance
 permanent
 personal
 personnel
 physical
 physician
 piece
 pleasant
 possession
 possible
 possibility
 potatoes
 practically
 prefer
 privilege
 professor
 professional
 pronounce / pronunciation
 psychology
 psychological
Q
 quantity
 quality
 questionnaire
 queue
 quizzes
R
 realistic
 realize
 really
 receipt
 receive
 recognize
 recommend
 religion
 religious
 remember
 representative
 restaurant
 rhythm
 ridiculous
 roommate
S
 sacrifice
 safety
 scared
 scenery
 schedule
 secretary
 sentence
 separate
 similar
 sincerely
 strength
 surprise
 suspicious
 success
 successful
T
 technical
 technique
 temperature
 temporary
 their (possessed by them)
 there (not here)
 they’re (contraction of “they are”)
 themselves – not themself
U
 undoubtedly
 unforgettable
 unique
 until
V
 valuable
 village
 violence
 violent
 vision
 volume
W
 weather – indicating climate – The weather is nice today.
 Wednesday
 weird
 whether – (indicating if)
 which
 woman – (singular)
 women – (plural)
 worthwhile
 width
 writing
XYZ
 yacht
 young
 Shall: imposes obligation
Example: SKL shall share 20% of the profits with FKL.
This example indicates that SKL does not have an option to not share the
profits with FKL. It has to share the profits.
  Must: imposes obligation
Example: SKL must share 20% of the profits with FKL.
This example indicates that SKL does not have an option to not share the
profits with FKL. It HAS to share the profits. The meaning of “must” is similar to
“shall”, however, “shall” is generally used more in statutes and “must” is
increasingly being used by lawyers wherever they want to impose an
obligation.
 Should: infers non-absolute obligation
Example: SKL should share 20% of the profits with FKL.
This example indicates that SKL should share profits with FKL but there is no
guarantee. We must never use “should” where we want to impose an
obligation.
 May: indicates discretion to act
Example: SKL may share 20% of the profits with FKL.
This example indicates that SKL may or may not share profits with FKL. Similar
to “should”, there is no guarantee if SKL will share the profits.
 Will: predicts future action
Example: SKL will share 20% of the profits with FKL.
This example indicates that SKL will share profits with FKL in the future.
 Can: indicates ability or capacity
Example: SKL can share 20% of the profits with FKL.
This example indicates that SKL has the capacity to share profits with FKL,
however, usage of “can” does not indicate any form of obligation.

4. Punctuation error

Apart from full stops, we often get confused on how to use commas, semi-colons,
apostrophes and quotation marks. A lot of us have probably never even used semi-
colons. However, a good legal draft necessitates the correct and proper usage of all
punctuation marks. A brief lesson on usage of punctuation marks discussed below
will help you in improving the quality of your legal drafts:
 Commas: The comma (,) is used to indicate a separation of ideas or
elements within a sentence.
Example: The student wanted to know the difference between a comma, semi-
colon, apostrophes and quotation marks.
 Semicolon: The semicolon (;) is used to connect independent clauses. It
shows a closer relationship between the clauses than a full stop would show.
Example: The students will practice punctuations as soon as they finish this
module; that is a promise every student will definitely keep.
 Apostrophe: An apostrophe (‘) is used to indicate the omission of a letter or
letters from a word, the possessive case, or the plurals of lowercase letters.
Example: I’ve seen that many students are unable to use the apostrophe
correctly.
 Quotation Marks: Quotation marks (“”) are a pair of punctuation marks used
primarily to mark the beginning and end of a passage attributed to another, and
 repeated word for word.
Example: “This module was really helpful”, the students said.
 Explanation: The 14 punctuation marks in English grammar are: full stops/period,
question mark, exclamation point, comma, semicolon, colon, dash, hyphen, parentheses,
brackets, braces, apostrophe, quotation marks and ellipsis

 QUALITIES OF A BEST MEMORIAL

1.  Simple and impactful

Simplicity is the hallmark of good drafting. Contrary to popular belief, it is the

simplicity of the language, which leaves a positive impact on the reader. In our last
module too, we discussed the importance of simple drafting in moot court
competitions. In the Jessup Memorial, you will be able to appreciate that the
language is not complicated and there is no unnecessary usage of complex words or
legal maxims.

2.  Well-formatted

Did you look at the formatting style of the Jessup Memorial? Did you notice how the
look and feel of the memorial was positive because it was well-formatted? Every
moot court competition allots a certain portion of marks to formatting. If your
memorial is formatted in the way the rules demand, you will never lose marks. It may
sound bizarre, but 90% of the moot teams participating in any moot court competition
lose around 10-20 marks (out of the 100 marks allotted to a memorial) due to
incorrect formatting.

Module 7 of this course will deal exclusively with memorial formatting.

3.  Consistency

Another common quality across all best memorials is consistency. Any inconsistency
in terms of formatting or drafting can leave a bad impression on the judge.
Consistency was also a part of the five basics of legal drafting in the previous
module. Notice how all headings in the Jessup Memorial are formatted in a
consistent manner. Notice how references to statutes and charters are consistent
throughout the memorial. Even upon careful examination, you would be unable to
notice any inconsistency in the memorial.

4.  Substantial number of authorities

Approximately 200 authorities were cited in the Jessup Memorial. As a judge, the
first impression of this memorial would be that the arguments are well backed by
authorities. Therefore, a substantial number of authorities will always work in your
favour. However, do note that the use of each authority must be reasonable and
justified. Excessive use of authorities, just for the sake of it, is undesirable and may
backfire.

5.  Paragraphs do not exceed 7 lines

Go back to the Jessup Memorial and check if any paragraph exceeds 7 lines. Even
though it is not a strict rule of legal drafting, you will notice almost all best memorials
never have paragraphs exceeding 7 lines. Can you guess why? The reason is
simple – if your draft is broken into several small paragraphs, it will make the reading
experience of the reader more soothing. You can apply this technique in other
activities as well – exam answers, research papers or even while writing emails