Questions of law, fact and discretion

1. The three kinds of question

Salmond divides the matters that come before a court into:

• questions of law, to be answered by a rule of law;
• questions of fact, to be answered by evidence and inference; and
• questions of judicial discretion, to be answered by the judge’s view of what is right and just in the circumstances.

2. Question of law: three senses

• (a) A question which the law itself has authoritatively answered. The court is bound to accept the answer the law gives, whatever its own opinion. Whether a contract with a minor is void, or whether a will needs two attesting witnesses, is a question of law in this sense.
• (b) A question as to what the law is. Where there is doubt or dispute about the existence or meaning of a rule (how a statute is to be interpreted, whether a precedent applies) the question is one of law. An appeal on a point of law is usually an appeal in this sense.
• (c) A question that falls to be decided by the judge, not the jury. In systems with jury trial, questions are allotted between judge and jury, and those for the judge are called questions of law even where they are in substance questions of fact (for example, whether there is reasonable and probable cause in malicious prosecution). This sense matters little in India, where jury trial was abolished.

3. Question of fact

In Salmond’s sense a question of fact is any question that is not one of law, that is, any question not determined by a rule of law. It includes questions of what happened (did A strike B?), of state of mind (did A intend to deceive?), and of judgment on the facts (was the driver negligent?). Questions of fact are answered on evidence; in India the Bharatiya Sakshya Adhiniyam, 2023 governs how they are proved.

4. How questions of fact become questions of law

As the law develops, courts lay down rules for matters that were once left to the judgment of the tribunal of fact, and the question then becomes one of law in the first sense. Salmond illustrates this with negligence: whether a given act was negligent is a question of fact, but where precedent has settled that certain conduct is or is not negligent, the court applies the rule. The growth of precedent is, in this sense, the conversion of questions of fact into questions of law. The opposite movement also happens when a rigid rule is abolished and the matter is left once more to the court’s judgment.

5. Mixed questions

Many questions are mixed. Whether a set of facts amounts to “possession” or “negligence” involves both finding the facts and applying a legal concept to them. The inference from proved facts to a legal conclusion (for example, whether a document is a lease or a licence) is usually treated as a question of law, because it requires the meaning of a legal term.

6. Questions of discretion

Some matters are left by law to the judgment of the court: the quantum of sentence within the range the statute allows, the grant of bail, costs, the grant of an injunction or of specific performance, or condonation of delay. The judge decides what is just in the circumstances. The discretion is judicial: it must be exercised on settled principles, for reasons, and not arbitrarily. Where courts lay down guidelines for its exercise, such as the rarest of rare test for the death penalty in Bachan Singh v. State of Punjab, 1980 INSC 120, (1980) 2 SCC 684, discretion is partly converted into law.

7. Why the distinction matters in India

• Second appeal. Under section 100 of the Code of Civil Procedure, 1908, a second appeal lies to the High Court only if the case involves a substantial question of law. Findings of fact by the first appellate court are generally final.
• Supreme Court appeals. Article 133 permits a civil appeal on a certificate of the High Court that the case involves a substantial question of law of general importance; under Article 136 the Court rarely interferes with concurrent findings of fact.
• Precedent. Only decisions on questions of law create binding precedents. A finding of fact binds the parties but nobody else.
• Ignorance. A mistake of fact in good faith may excuse (sections 14 and 17 of the Bharatiya Nyaya Sanhita, 2023, formerly sections 76 and 79 IPC); a mistake of law does not.

8. Illustration: one case, three questions

A sues B for damages after B’s car hits him at a crossing. Whether B was driving at 70 km/h and whether the signal was red are questions of fact, proved by witnesses and documents. Whether a driver owes a duty of care to a pedestrian, and whether a claim of this kind survives the death of the plaintiff, are questions of law in Salmond’s first sense. If the parties dispute how a provision of the Motor Vehicles Act, 1988 is to be read, that is a question of law in his second sense. Whether B’s speed, given the conditions, amounted to negligence is a mixed question, treated as one of fact unless a precedent has settled the standard. The amount of damages for pain and suffering, and the award of costs, are matters of judicial discretion. Only the second-sense question, and perhaps the mixed question, would support a second appeal under section 100 of the Code of Civil Procedure.

How this is examined

As a short note: “Questions of law” (June 2025, Q.2(b)). Older papers ask to distinguish questions of law, fact and discretion in a 10-mark answer. Write the three senses with an example for each, a paragraph on questions of fact, the conversion through precedent, and the practical consequences under section 100 of the Code of Civil Procedure.