JUDICIAL PROCESS IN INDIA

To understand what is judicial process in India. We must first understand what is Justice and the
meaning of judicial and Process separately. Justice is an irrational term. In laymen’s term it
means absence of fear it comes with lack of arbitrariness, freedom of liberty and equality and
equal asses to quick affordable satisfactory credible dispute settlement forum. Justice in nut shell
means rule of law.

DEFINING JUDICIAL PROCESS:

Judicial Means:Relating to administration of justice or the function of a judge.”

Process Means

Series of steps in the course of the administration of justice through the established systems of
court.

The judicial process is a set of interrelated procedures & roles for deciding disputes by an
authorative person or persons whose decision are regularly obeyed.

JUDICIAL PROCESS MEANS:

Judicial And Process read together means everything done by judge in the process of delivery of
justice. It basically confines itself to the study of “is” to “ought” of the law.

Judicial process is basically “whole complex phenomenon of court working”

Right from golaknath case to justice K.S puttuswamy case ( aadhar judgment)

Some kinds of fundamental rights were affected some or the other way despite the studious and
calibrated judicial interpretation of art 21 through various landmark case laws.

We still couldn’t find what restraint in and what activism is all about?

The judiciary is one of the pillars on which the edifice of constitution is built.

It is guiding pillar of democracy

What is happening inside it is a fascinating study.

To explain what this term judicial process denotes and what the various Legal Luminaries, likes
of Cardozo, Former CJI, Ahmadi, Friedman and likes thinks of judicial process.

It also interesting to see that how the judicial process has taken a leap forward from first baby
steps , which it started taking immediately after independence in 1947. In this endeavor we will
also discuss the various Leading Judgments which formed the path of judicial process in India.

By now we have understood what is Judicial Process . Now we move forward to see what is the
perspective of various Legends in the field of law in this regard. Anything said about the term is
incomplete in this area of law without talking about Benjamin Cardozo.

In The Nature of the Judicial Process, Benjamin Cardozo, who later served on the Supreme
Court of America, accepted the fact that judges do make law. However, he stated that:

"He (the judge) legislates only between gaps. He fills the open spaces in the law. How far he
may go without travelling beyond the walls of the interstices cannot be staked out for him on a
chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with
years of habitude in the performance of an art."
Cardozo, J. further states that justice, according to law means:

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is
not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of
order in the social life'. Wide enough in all conscience is the field of discretion that remains.

Jackson, J.

“we are final, not because we are infallible, we are infallible because we are final.”

W. Freidmann said

“Justice is an irrational concept”.

Legal Maxim

Justice delayed is justice denied.

The case lands in a court and is brought to a logical end and when the justice is delivered judges
adopt various methods to deliver justice and lay down several principles for expeditious delivery
of justice. Judges follow certain methods but over time many Supreme court has also laid down
certain principles which are followed by lower judiciary.

In modern democracies, State is a protector of the public’s rights and liberties and provides
justice through its third pillar i.e. judiciary. Therefore, judiciary is the main source of judicial
process and it is the life and blood of justice. This integral is based on “corrective justice” of law.
It demands the uniformity in the legal system. Judicial process is important weapon and
paramount norm of justice for strengthening the uniform legal integrals.
The common law countries like England recognized judicial process as rule of practice rather
than rule of law, because rule of practice is essential requirement in the hierarchical system of
the Courts. This system demands the uniformity in the legal integrals. Judicial process should be
followed by the Courts because it marks the path of justice.

In Indian Context Hon'ble Former CJI of India, A.M. Ahmadi said:

"…..to understand judicial Process in India we must understand why the nature of the judicial
process in India has undergone a metamorphosis; the reasons underlying the expansion of the
scope of judicial review and the legitimacy of such a response; and the need for, and factual
reality of, what has euphemistically been called "judicial legislation".

RELEVANT PROVISIONS RELATING TO JUDICIAL PROCESS IN CONSTITUTION OF

INDIA

Article 14 casts a duty on the state which also includes judiciary to provide justice by giving
equal protection of laws to all its citizens. But it has been seen that on many occasions judiciary
has failed to provide the justice according to the provisions of constitution and statutes.

In the hierarchical system of the Courts in India our Constitution specifically lays down the
proposition of judicial process in Art. 141 which says that “the law declared by the Supreme
Court shall be binding on all Courts within the territory of India.”

Article 225 gives jurisdiction to the existing High Courts and gives the power of administration
of justice in the Court, including any power to make rules of Court and to regulate the sitting of
the Court and of members thereof sitting alone or in Division Courts.

Article 256 gives a supervisory power to the union over state for compliance of laws, and

Article 356 read with Article 365 is the consequential result for non compliance of constitutional
obligations by the state.
The Supreme Court acting within the 4 walls of the constitutional provisions sometimes acted in
its anxiety to protect human rights, at times undertaken the roles of both organs of the
government, the legislature and the executive. The Constitution does not confer such omnipotent
power on the Judiciary. Judiciary has invented novel forms of action to provide relief to the poor,
underprivileged, downtrodden sections of the society. Era of epistolary jurisdiction is emerging.
Epistolary jurisdiction allows access to justice to the poor and the weaker section of the society.
The court entertains a letter as writ petition ignoring all procedural norms and technicalities. The
epistolary jurisdiction is a new strategy adopted by the judiciary for protection of the human
rights of the vulnerable sections of the society.

Now we move on to discuss few Judgments which set high standards of Judicial Process in
India .

CASE LAW:

[Link] Gandhi’s case

AIR 1978 SC 598

Supreme Court held that any state action affecting life and liberty of a person has to be ‘right,
just, fair and reasonable and not arbitrary fanciful and oppressive’.

Thereafter, there appeared era of progressive judicial activism for protection of human rights. In
the post–Maneka period court’s activism blossomed and flourished. A new trend was set in
Maneka Gandhi’s case.

2. In Olga Tellis v. Bombay Municipal Corporation

[1985] 2 Supp SCR 51

One Journalist of Bombay claimed relief against demolition of hutments of pavement dwellers
by the Municipal Corporation of Bombay. His letter to the Supreme Court was treated as writ
petition and the court granted interim relief to pavement dwellers.
3. Bandhua Mukti Morcha v. Union of India

A.I.R. 1984 S.C. 802.

An organization dedicated to the cause of release of bonded labours informed the Supreme Court
through a letter that there 2 were a large number labours working in the stone-quarries situated in
Faridabad District under inhuman and intolerable conditions and many of them were bonded
labours. The court treated the letter as a writ petition. The court after inquiry ordered release and
rehabilitation of bonded labours.

[Link] Shah v. State of Bihar

AIR 1983 SC 1086.

An instance of breakthrough in Human Rights Jurisprudence. The Court granted monetary

compensation of Rs.35,000 against the Bihar Government for keeping a person in illegal
detention for 14 years even after his acquittal. The Court departed from the traditional approach,
ignored the technicalities while granting compensation.

5. [Link] v. Union of India

AIR (1987) 4 SCC 463

The Supreme Court held that the power of the Court under Article 32(1) is not only injunctive in
nature, that is, preventing the infringement of a fundamental right, but it is also remedial in
scope. The power of the Court to grant such remedial relief may include the power to award
compensation in appropriate cases. The ‘appropriate cases’ are those cases where the
infringement of fundamental right is gross and patent. It is considered unjust to ask the victim to
go to the civil court for claiming compensation as it may take many years for the victim to get
relief in a civil court.

6. Hussainara Khatoon v. State of Bihar

A.I.R. 1979 S.C. 1377.

Reiterates the right of every accused person who is unable to engage a lawyer due to poverty,
indigence or incommunicado situation, to have free legal services provided to him by the State
for obtaining bail as well as for defence at the time of the trial. The court added a further
protection to this right by holding that if free legal services are not provided to such an accused,
the trial itself may run the risk of being vitiated as contravening Article 21.

7. Francis Coralie Mullin v. Administrator, Union Territory of Delhi

(1981) 1 SCC 608:

The Supreme Court, while elaborating the scope of the right guaranteed under Article 21
observed in that right to life cannot be restricted to mere animal existence. It means something
more than just physical survival. Right to life includes the right to live with human dignity and
all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing
and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely
moving about and mixing and co-mingling with fellow human beings

8. in [Link] v. State of W.B.

AIR 1997 SC 610

The Apex Cour laid down 11 requirements to be followed in all cases of arrest or detention till
legal provisions are made in that behalf. The requirements wereheld to be flowing from Articles
21 and 22(1) of the Constitution. In its anxiety to protect the interests of the arrested person, the
court has exhibited an instance of judicial hyper-activism rather judicial waywardness.

[Link] v. State of Rajasthan.

AIR 1997 SC 3011

In this case, the Supreme Court has virtually enacted a piece of legislation on the ground that
there is a vacuum in the legislative field of sexual harassment of working women. There is a
paragraph similar to the statement of objects and reasons. There is a definition clause and there
are 12 points similar to 12 sections. The Supreme Court laid down some guidelines and norms
which are directed to be treated as law. It is submitted that these guidelines cannot be treated as
laying down a precedent under 6 Article 141, but this should be treated as unauthorized ad hoc
legislation by the judiciary. Interpreting certain provisions of the existing law and laying down
certain principles in the form of the precedent is what is envisaged under Article 141 and not ad
hoc legislation by the judiciary when there is vacuum in the field. Vishaka is an example of
judicial trespass in legislative domain.

[Link] District Magistrate of Jabalpur v. Shiv Kant Shukla

AIR 1976 SC 1207

Popularly known as the Habeas Corpus case, a bench of five senior most judges of Supreme
court ruled in favour of state's right for unrestricted powers of detention during emergency.
Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority
decision:

(under the declaration of emergency) no person has any locus to move any writ petition under
Art. 226 before a High Court for habeas corpus or any other writ or order or direction to
challenge the legality of an order of detention.

Recent important cases

Among the important pronouncements of the Supreme Court post 2000 are as follows :

I.R. Coelho v. State of Tamil Nadu (Judgment of 11the January, 2007).

A unanimous Bench of 9 judges reaffirmed the basic structure doctrine. An authority on the
Indian Constitution, former Attorney-General Soli Sorabjee commented on the judgment,
"The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic structure. Indeed it has
gone further and held that a constitutional amendment which entails violation of any
fundamental rights which the Court regards as forming part of the basic structure of the
Constitution then the same can be struck down depending upon its impact and consequences.
The judgment clearly imposes further limitations on the constituent power of Parliament with
respect to the principles underlying certain fundamental rights. The judgment in Coelho has in
effect restored the decision in Golak Nath regarding non-amenability of the Constitution on
account of infraction of fundamental rights, contrary to the judgment in Kesavananda Bharati’s
case.

CONCLUDING REMARKS

Judiciary as a state within the meaning of Article 12 is duty bound to do complete and
Restitutive justice under Article 14 read with Article 142, but on several occasions it has acted as
dispute settlement forum. It is also duty bound under section 57(1) of the Indian Evidence Act
1872 to take judicial notice of all existing laws having force , whether it is mentioned in the
plaint or not but judges deliberately fails to take notice of this section which proves their
incapacity and misconduct to deal with the cases rendering them liable for punishment under
section 166 IPC and for removal from the post by parliament , but still the legislature has fails to
set an example of punishment by virtue of removal of any high/supreme court judge

Under constitutional power arrangement the work of judiciary is to say

authoritatively what the law i.e. policy is controlling. Provisions of Article 142
and 226 of constitution, Section 482 CrPC and 151 of CPC though gives inherent
power to the supreme court and high court to render complete justice, it means
only to fill the gap within the parameter of the constitution and statute and it
does not mean to supersede the constitution or statute as it did in Ramjawaya
kapoor and S.C Advocates on Records case.
It can be concluded that judicial process in India has moved in the right direction. The move is
progressive in nature and has benefited the masses immensely and all credit goes to judiciary.
Whether we take the environmental jurisprudence or developing the concept of PIL to acting on
the initiative of NGO’s or taking suo moto notice of the problems faced by citizens in day-to-day
life.

"A judge must interpret statutes as written. And a judge must interpret the Constitution as
written, informed by history and tradition and precedent." – Brett Kavanaugh, Associate Justice
of Supreme Court of India.

Every developed legal system possesses a judicial organ which adjudicates the rights and
obligations of the citizens of the nation. At earlier stage, the courts were guided by customs and
their own sense of justice. With the advent of society, the legislation becomes the main source of
law and judges decide cases according to it. Even at this stage, the judges perform some creative
functions. The judges to some extent depend on their sense of right and wrong in matters of
interpretation or in filling up any lacuna in the law made by the legislation. In simple terms, a
judicial precedent is a judgment of a court of law in India which is cited as an authority to decide
a similar set of facts and which can be used by the courts as a source for future decision making.

According to Gray, "Precedent covers everything said or done, which furnishes a rule for
subsequent practice." According to Salmond, "In a loose sense, it includes merely reported case
law which may be cited and followed by courts." In general judicial sense, it means the guidance
or authority of past decisions for future cases. Only such decisions as lay down some new rule or
principle are called judicial precedents.

Historical aspects of the judicial precedents in India:

"A judge must interpret statutes as written. And a judge must interpret the Constitution as
written, informed by history and tradition and precedent." – Brett Kavanaugh, Associate Justice
of Supreme Court of India.
Every developed legal system possesses a judicial organ which adjudicates the rights and
obligations of the citizens of the nation. At earlier stage, the courts were guided by customs and
their own sense of justice. With the advent of society, the legislation becomes the main source of
law and judges decide cases according to it. Even at this stage, the judges perform some creative
functions. The judges to some extent depend on their sense of right and wrong in matters of
interpretation or in filling up any lacuna in the law made by the legislation. In simple terms, a
judicial precedent is a judgment of a court of law in India which is cited as an authority to decide
a similar set of facts and which can be used by the courts as a source for future decision making.

According to Gray, "Precedent covers everything said or done, which furnishes a rule for
subsequent practice." According to Salmond, "In a loose sense, it includes merely reported case
law which may be cited and followed by courts." In general judicial sense, it means the guidance
or authority of past decisions for future cases. Only such decisions as lay down some new rule or
principle are called judicial precedents.

Historical aspects of the judicial precedents in India:

In the ancient society, there was less disputes and there were very few occasions to go to courts.
Local courts like shashan, kula, shreni and puga were existing at that time. They decided the
cases falling within their jurisdictions. There was little possibility of development of doctrine of
precedent due to lack of adequate sources to keep the record. In the medieval times also there
was less scope of precedents. In the absence of a well organized judicial system, no doctrine of
precedent developed in India as it developed in England. In the British rule, the present theory of
precedent started developing. The Government of India Act, 1935, explicitly mentioned that the
decision of Federal Courts and Privy Council will be binding on all the other courts decision in
British India. Hence, from 18th century till date precedent is a characteristic feature of our legal
system.

Position under Indian Constitution:

Article 141 of the Indian Constitution provides that, "The law declared by the Supreme Court
shall be binding on all courts within the territory of India." In Article 141 the expression "all
courts" has been used which creates question that whether Supreme Court comes under the
sphere of all courts. That is to say whether Supreme Court is bound by its own decisions or not.
The most important instance of the rule that Supreme Court is not bound by its own decisions is
furnished by the case of Kesavananda Bharti Vs State of Kerala. In a number of other cases
Supreme Court has cleared the mind on this point.
Judgments which do not have binding effect under Article 141 of the Indian Constitution:

Judgments which include the following are not considered as a precedent:

The judgment that is not expressed.

The judgment not founded on reasons.

An Obiter Dicta of a case is not binding as it has a persuasive value.

Judgments made on Per Incuriam cannot be used as precedent. Literal meaning of per incuriam is
resulting from ignorance.

Judgments where point of law or particular question of law was not consciously determined are
also not binding.

Court's observations on the facts of the case are not binding.

General Principles of Precedents:

The High Courts in India are bound by the law declared by the Supreme Court. Decisions of the
Supreme Court are binding only so long as they have not been overruled by the Supreme Court.
The decisions of a High Court are binding on all the courts below it within its jurisdiction. The
judgment of a particular High Court, is not binding on other High Courts. The High Courts are
the courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is only of
persuasive value for other High Courts. In High Courts generally appeals are heard by a Single
Judge, some appeals such as murder, specials appeals etc. are heard by two judges. Different
High Courts have their different rules in this respect. When an appeal involves some important
and complicated point of law, it is referred to a Larger Bench. A Bench of two judges is called
the Division Bench. Three or more judges constitute a Full Bench. The decisions of a larger
bench are binding on a smaller bench. A bench is not bound by the decisions of another bench of
equal authority.

Supreme Court on Judicial Precedents:

In Union of India Vs. Raghubir Singh (AIR 1989 SC 1933) it has been held that, "The doctrine
of binding precedent has the merit of promoting a certainty and consistency in judicial decisions,
and enables an organic development of the law, besides providing assurance to the individual as
to the consequence of transactions forming part daily affairs. And, therefore, the need for a clear
and consistent enunciation of legal principle in the decisions of a court." In the case
of Commissioner of Income Tax Vs. M/s Sun Engineering Works Private Limited (AIR
1993, SC 43), the Hon'ble Apex Court held that, "While applying the decision to a latter cases,
the court must carefully try to ascertain the true principle laid down by the decision of Supreme
Court and not to pick out words or sentences from the judgments divorced from the context of
question under consideration by the court to support their reasoning." Any interim order passed
even by Supreme Court is limited to that particular case and should not to be used as precedent
for others cases specifically when the Supreme Court itself has earlier authoritatively decided the
question which is squarely involved in the latter case. The Hon'ble Apex Court in Megh Singh
Vs. State of Punjab ( AIR 2003 SC 3184) has held that, "Circumstantial flexibility, one
additional or different fact may make a world of difference between conclusion in two cases or
between two accused in the same case. Each case depends on its own facts and a close similarity
between one case and another is not enough because a single significant detail may alter the
entire aspect." In Suganthi Suresh Kumar Vs. Jagdeeshan (2002)2 SCC 420 Supreme Court
observed that, "It is impermissible for a High Court to over rule the decision of the Apex Court
on the ground that the Supreme Court laid down legal position without considering any other
point. High Court cannot question the correctness of the decision of the Supreme Court even
though the point sought before the High Court."

Merits of Judicial Precedents:

Consistency and predictability:

Because of the presence of judicial precedents, the lawyers become able to assist their clients
regarding specific subject matter after observing the precedents prevalent in such field. It
provides guarantee that every case will be treated and decided in a manner that is similar to pass
decisions. There is an element of consistency and predictability that everyone can rely upon it.

Flexibility:
Precedents bring flexibility in the legal system. The Supreme Court of India is not bound by its
own decisions. The rules settled by the Supreme Court in a particular subject matter remain in
force unless they have not been overruled by the Supreme Court. This system creates a series of
checks and balances in the judiciary. Judges may not write the laws, but it is their job to interpret
the law as accurately as possible in every situation. They mold the law according to the changed
conditions and thus bring flexibility to the law.

Save time of the courts:

Judicial precedents provide great convenience as it reduces the labor of judges and lawyers.
Once the question regarding some specific matter is resolved then it is not required to re-argue
the same question in the future similar cases. That means judges can spend less time in
deliberation because they already have access to the decision making processes of others. This
advantage can even reduce the crime rate to some extent as it throws light on the consequences
for the wrong committed against the state.

Prevent mistakes:

Precedents guide judges and consequently, they are prevented from committing errors which
they would have committed in the absence of precedents. There is lesser chance of mistakes
when everyone stays on the same page. By deciding cases on established principles, the
confidence of the people on the judiciary is strengthened.

Demerits of precedents:

Complexity:

There are so many case laws thus it creates complexity. Every judge issues his own perspective
on matter to create more precedents. Judgments are exceptionally long, and it becomes burden
for the lawyers and judges working on the similar matter to determine that what is applicable or
not. It becomes tedious task to find out relevant case law on particular matter.

Possibility of overlooking of authorities:

The vastly increasing number of cases has an overwhelming effect on the judges and the lawyers,
thus there is possibility of overlooking of authorities. It becomes difficult to trace out the wide
range of authorities on the very point. Sometimes, the conflicting decisions of superior courts put
the judges of lower courts into a dilemma.

Rigid:

The practice of precedents brings rigidity in the system because the lower courts are bound by
decisions of higher courts. The society is not static and there are changes in social, economic,
and other circumstances with time. Changed circumstances may require a different interpretation
of law. In fact binding precedents can hinder the development of law.

Conclusion:

While statutes and enactments of the legislature lay down the general rules to be applied in the
adjudication of disputes, the final authority for interpretation of those rules are the courts. The
doctrine of precedents makes the decisions of courts, usually binding on the subordinate courts in
cases in which similar or identical question of law raised before the court. The great value of the
doctrine of precedents is that it provides certainty. On the other hand major disadvantage is that
precedents are considered to be binding in nature; it may be hinder the development of law
which is necessary with changes in society. The court has to keep the balance between the need
of certainty and continuity and the desirability of growth and development of law.

JUDICIAL PROCESS

To understand what judicial process is, we must first understand the meaning of ‘Judicial’ and
‘Process’ separately. JUDICIAL means administration of justice or the function of a Judge.
Justice is an abstract term. In layman’s term, it means absence of fear which comes with lack of
arbitrariness, freedom of liberty, equality and equal access to quick affordable satisfactory
credible dispute settlement. Justice in nutshell means forum of rule of law. PROCESS is the
series of steps in the course of the administration of justice through the established system of
courts.

The judicial process is a set of interrelated procedures and roles for deciding disputes by an
authoritative person or persons whose decisions are regularly obeyed. The disputes are to be
decided according to previously agreed upon set of procedures and in conformity with prescribed
rules. Everything done by the Judge in the process of attaining justice is called judicial process. It
is basically whole complex phenomenon of Court. Right from Golaknath Case to Justice K. S.
Puttaswamy Case (Aadhar Judgment). We still couldn’t find what restraint is and what activism
is all about? Despite of the studious and calibrated judicial interpretation of Article 21 through
various landmark case laws, some kind of fundamental rights are affected in some or the other
way.

The Judiciary is one of the pillars on which the edifice of the Constitution is built. It is the
guiding pillar of democracy. What is happening inside is indeed a fascinating study which
includes various legal luminaries like Benjamin Cardozo, Former Chief Justice Ahmadi, and
Friedman and like things of judicial process. It is also interesting to see that how the judicial
process has taken a leap forward from first baby steps which it started taking immediately after
independence in 1947. It includes the study of various leading judgements which formed the path
of judicial process in India.

The work of deciding cases goes on every day in hundreds of Courts throughout the Country.
One might suppose or would find easy to describe the process which the Courts follow thousand
times and more. Nothing could be farther from truth. When any troublesome problem occurs, the
Judges have to find solution. For Judges there are many questions to be solved such as:

1. What is it that I do when I decide a case?

2. To what sources of information do I appeal for guidance?
3. In what proposition do I permit to contribute to the result?
4. If a precedent is applicable, when do I refuse to follow it?
5. If no precedent is applicable, how do I reach the rule that will make a precedent for future?
6. If I am seeking logical consistency, the symmetry of legal structure, how far shall I seek it?
7. At what point, shall the quest (long search for something difficult to find) be halted by some
discrepant customs, by some consideration of the social welfare or by my own thoughts or by
the common standards of justice and morals?
All these ingredients enter in varying proportions.

COMMON LAW

Common law or case law or precedent is law that is developed by Judges through decisions of
the Court, it gives rise to binding precedent i.e. if familiar dispute has been resolved in the past
arises again then Court is usually bound to follow the reasoning used in prior decisions (this
principle is known as Stare Decisis).

Law in India has evolved from religious prescriptions to the current constitutional and legal
system we have today. It is traversing through secular legal system and the common law. India
has recorded legal history started from Vedic ages and some sort of law may have been in place
during the bronze age of the Indus Valley civilisation. Law as a matter of religious prescription
and philosophical discourse has an illustrious history in India. India is a fertile field of law
emerging from Vedas, the Upanishads, and other religious texts and enriched with practitioners
from different Hindu Philosophical Schools and later by Jains and Buddhists. There existed
excellent Secular Court system under the Mauryas (321 – 185 BC) and Mughals (16 th – 19th
Century) with the later giving way to current law system.

In Ancient India, the Arthashastra and Manusmriti were influential treaties in the Indian law.
They were considered as authoritative documents for legal guidance. Manu emphasized upon
tolerance and pluralism. When India became a part of British Empire this tradition was broken
and Common Law was introduced in India.

If the dispute is different or new then the Judge has the authority or duty to make law and
thereby create a precedent which shall bind the future disputes. Indian law is largely based on
English Common Law because of the long period of British Colonial influence during the period
of British Raj.

The Common law system is a system based on recorded judicial precedents which came to India
with British East India Company. The Company was chartered by King George I in 1726 to
establish Mayor’s Court in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata
respectively). Judicial function of Company expanded substantially after its victory in Battle of
Plassey and in 1772 Company’s Court expanded out from 3 major cities. In this process, the
Company slowly replaced the existing Mughal Rule in those parts.

It was a very big transformation in the Indian legal system. Supreme Courts were established by
replacing the existing Mayoral Courts. These Courts were converted into first High Court
through letter of patents autho8rised by Indian High Courts Act passed by the British Parliament
in 1862. Superintendence of the lower courts and enrolment of law practitioners were deputed by
respective High Courts.

During British Raj, Privy Council acted as Highest Court of Appeal. Coding of Law also began
with the forming of Law Commission under the Chairmanship of Thomas Babington Macaulay.
The Indian Penal Code, 1860, The Code of Criminal Procedure was drafted by the same
Commission. Host of statutes like the Evidence Act, 1872 and the Indian Contract Act, 1872
were drafted.

A Judge must interpret the statues as written, A Judge must interpret the Constitution as written,
informed by history and traditions and precedents – Brett Kavanaugh, Associate Justice of
Supreme Court of 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 is a body of law derived from judicial decisions known as Case laws rather
than from statutes. It derived its authority from the universal consent and practice of people since
time immemorial. The system of jurisprudence initially originated in England.
Common Law is unintelligible until expressed in a Judgement. It includes the rule of law which
derived their authority from the statement of principles found in the decisions of Courts. This
system of law includes traditions, customs, usage, fundamental principles and modes of
reasoning.

It is embodiment of broad and comprehensive unwritten principles which were derived out of
natural reasoning and innate sense of justice. It requires several stages of research and analysis to
determine the appropriate law in given situation. The facts are to be 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 the case.

Common law is quite different from codified law. In the Common Law System, Judiciary plays a
creative role by formulating, developing and restructuring legal concepts.

Law according to Kelson has a normative order i.e. it tells “ought to character of law”. For e.g.:
If a person commits an offence then he ought to be punished. This is normative order. It is a
sanction or a rule forbidding or prescribing certain behaviours and includes coercive aspect to it
as well.

DOCTRINE OF PRECEDENTS

Every developed legal system possesses a judicial organ which adjudicates the rights and
obligations of the citizen of the nations. At every stage, the Court are guided by customs and
their own sense of justice.

With the advent of Society, the legislation became the main source of law and judges decide
cases according to it. Even at this stage, the Judges perform some creative functions. The Judges
to some extent depend on their own sense of right and wrong in the matters of interpretation or
filling up of any lacuna in the Law made by legislation.

In simple terms, a judicial precedent is a judgement of a Court of Law in India which is cited as
an authority to decide a similar set of facts which can be used by the Courts as a source of future
decision making.

JUDICIAL REVIEW – DIMENSION OF JUDICIAL PROCESS

The Government has basically 3 pillars on which the democracy stands. It is based on the
principles of separation of powers.

Legislature that legislates, Executive that executes and Judiciary that interprets the laws.
1. Judicial Review refers to the power of Judiciary to review and determine the validity of a law
or an order. It is considered a basic structure of the Constitution (Indira Gandhi v/s Raj Narain
Case). It is defined as the doctrine under which executive and legislative actions are renewed
by the Judiciary.
2. It is the power of Courts to consider the constitutionality of Acts of organs of the Government
and declare it unconstitutional if it violates or is inconsistent with the basic principles of the
Constitution.
3. This means that the power of the legislature to make laws is not absolute and that the validity
and constitutionality of such laws are subject to review by the Courts.

It is also called as interpretational and observer rules of the Indian Judiciary. The Indian
Constitution adopted the judicial review on the lines of the American Constitution.

Social Action Litigation, Suo moto cases, PIL, with the discontinuation of the principle of Locus
standi have allowed the Judiciary to intervene in many public issues, even when there is no
complaint from the aggrieved party. So to keep a check on the power of each organ of the
Government we have adopted Judicial Review.

The reasoning techniques in law that are employed are pragmatic, it is action oriented and
includes interpretation of constitutional, statutory or regulatory laws and balance legal principles
against substantive policies. Before sentencing or giving a judgement the evidence has to be
evaluated. Legal reasoning is therefore pragmatic in the sense that its ultimate subject matter is
governmental action, and is almost always about justifying decisions leading to such action. It is
pragmatic because legal decision making occurs in real time, uses limited resources, and is
usually based on incomplete information.

Before making a decision the decision-maker has to evaluate, at each stage of the process,
whether the evidence is complete enough, whether the residual uncertainty is acceptable, and
whether action should be taken or postponed. These brief thoughts about the rule of law and the
pragmatic nature of legal reasoning, as well as about rule-based reasoning, evidence evaluation,
and second-order process reasoning stresses the importance of legal reasoning in the
development of law.

Intuitive Override Model of Judging

This model of decision making has been suggested by Chris Guthre, Jeffrey J. Rachlinski and
Andrew J. Wistrich. According to them, judging, as it is being done is neither applying law to
facts in a mechanical and deliberate way as the formal suggests nor is by hunching as the realists
suggests. They suggest that judges rely on intuition thereby disproving the purely formalist
model of judging; but, at the same time they are applying rules to the facts similarly, disproving
a purely realists model of judging.
As per this model, neither the formalists nor the realists accurately describe the way judges make
decisions. It suggests a blend of the realist and formalist methods known as intuitive override
model of judging. It posits that judges make intuitive decisions, but sometimes override their
intuition with deliberation.

The proponents of this model claim that it is less idealistic than formalist model and less cynical
than realist model which they describe as realistic formalism. It is realist in the sense that it
acknowledges the important role of judicial hunch in the decision making whereas it is formalist
in the sense that it recognises the importance of deliberation in controlling the inevitable but,
often undesirable influence of intuition.

This model is based on a study conducted on the trial judges. According to the authors,
elimination of intuition from judicial decision making is both impossible and undesirable
because it is an essential part of how human brain functions. Intuition, according to them, is
dangerous not because the people rely on it, but, because they rely on it when it is inappropriate
to do so. This model proposes a dual process of judging namely intuitive process and deliberative
process.

Intuitive process is called system one process which is automatic, heuristic based, effortless and
fast. Emotional influences also arise through system one process. On the other hand, deliberative
process is called system two process which is mental operation and it requires effort, motivation,
concentration and execution of learned rules. They are deliberative and rule governed, effortful
and slow. System one quickly proposes intuitive answers to judgment problem as they arise and
system two monitors the quality of these proposals which it may endorse, correct, or override.
Judgments eventually expressed are called intuitive if they retain the hypothesized initial
proposals without much modification. This model views the judges neither as a purely deductive
decision makers neither envisioned by the formalists nor as the intuitive rationalizers envisioned
by the realists. Rather, it views judges as ordinary people who tend to make intuitive system one
decisions, but who can override their intuitive reactions with complex, deliberative thought.

Coherence based reasoning

This model is proposed by Dan Simon. According to rationalists, legal decisions emanate from
prescribed forms of logical inference whereas critical view of the realists is that the life of law is
not based on logic, but rather the felt instincts of the time and that intuitions and judicial
prejudices have more to do with legal decisions rather than formal axioms of logical inference.
This is a cognitive psychological theory which posits that the mind shuns cognitively complex
and difficult decision tasks by reconstructing them into easy ones, yielding strong, confident
conclusions. This model also proposes a theory of cognition containing elements of both
rationalistic and critical approaches.

In a nut shell, coherence-based reasoning suggests that decisions are made effectively and
comfortably when based on coherent mental models. Loosely defined, mental models capture the
decision-maker's perception of the task at hand that is, the way the considerations of the decision
are represented in his or her mind. A mental model of a decision task is deemed "coherent" when
the decision-maker perceives the chosen alternative to be supported by strong considerations
while the considerations that support the rejected alternative are weak. Such is the case, for
example, when the prosecution's eyewitness is reliable, the forensic evidence is compelling, and
the defendant has a strong motive and a weak alibi. A mental model is considered "incoherent"
when the decision-maker perceives the considerations as providing equivocal support for both
alternatives.

Value based decision making [Normative judging]

Judging is ‘ius’ + ‘desire’. ‘Ius’ means right value and ‘desire’ means decision. Judging is a
process of supplying or upholding the right value to human conduct. In the Indian context, the
right value i.e. the ‘ius’ is the ‘ius’ of the Constitution. So mainly the work which the courts in
India do is nothing but applying the Constitution. So mainly the work which the Courts in India
do is nothing but applying the constitutional ‘ius’ to past human conduct whereas what the
legislature does is applying the Constitutional ‘ius’ to the future human conduct. It is true that
there are good judgments and bad judgments. How the judgements are categorised as good and
bad? The good judgments are those judgments which uphold the constitutional values
consciously. A person can come to the court only for deciding the existence, non-existence,
nature or extent of his right liability or disability. In the normative method of judging the
followings steps are involved:
1. Identify the right, liability or disability that is asserted or denied. In the pleadings, it is not just
a fact presented by the lawyer. He may be manipulating the cognitive independence of the
judge by presenting a factual pattern in order to suit his case. Therefore, the judge,
independently of the presentation of the facts by the lawyer, has to identify the right liability
or disability which is asserted or denied.

2. The next step is to identify the law under which the right is asserted or denied and the purpose
of the law. The judge has to identify the ingredients of the law that is to identify the model
facts prescribed in the law. So, the legal consequences will follow if the facts of the case
match the model facts.

3. The next is to find out the facts in issue i.e., the facts either by themselves or in connection
with other facts from which the existence, non-existence, nature or extent of the right liability
or disability necessarily follows.

4. The next step is to set up a legal standard on the basis of the proved facts of the case. The
attempt of the court should be to identify the correct legal stand irrespective of the factual
pattern of the case. For example, the court, in an appropriate case, can ascertain the purpose
for which the law was enacted, which is the purposivist approach. Likewise the required legal
standard is to be fixed. This is one of the most important steps of normative method of
judging.

5. The final stage is rendering the decision. It must uphold the object of securing justice i.e.
upholding human conduct consistent with constitutional values.

In short, the normative method of judging involves identification of the rights, liabilities, or
disabilities, the law which creates the same, setting up legal standard and making the decision
i.e., to uphold the right values on which the society stands. Normative judging is nothing but a
process of structured thinking.

LEGAL REASONING IN JUDICIAL PROCESS

As man carries out his day to day interactions with his fellow man, there is likely to be

strife and disagreement amongst them. This necessitates the need for a process of

resolving these disputes. This is where the judiciary comes into play. The judiciary is

the body of judges in a jurisdiction that administers justice according to the laws of the

land. As law students, some of which are likely to end up being judges, it is pertinent
that we study the way legal reasoning in the judicial process occurs.

Legal reasoning in judicial process has been defined by A.O Sanni as

“The process of careful thinking by a judicial officer in the course of resolving legal

issues presented by a party to a legal action before his court for determination.”

In dealing with the subject of legal reasoning in judicial process, I shall be highlighting

on the shifting of fact, shifting of law and judicial precedent.

SHIFTING OF FACT

The facts of a case are the versions of the story that has been accepted by the court after

being satisfactorily proved by the party on whom it lies to be proven. Different parties

at different times would have to establish their own version of the fact before the court.

The process by which the responsibility of proving the fact moves from one party to

another is called the shifting of fact.

In civil cases, the initial burden of proving a set of facts lies on the plaintiff. If after

proving his facts, the defendant disagrees with the plaintiff’s version, the defendant

would have to prove his own story. If the facts in issue are admitted by both parties,

those facts would be accepted by the court.

Thus, according to the provision of S.136 (1) of the Evidence Act 2011, the burden of

proving any fact lies on the person who wants the court to rely on those set of facts.

In criminal cases, the burden rests on the prosecution to prove its case beyond

reasonable doubt. The burden of proof doesn’t normally shift to the accused. This is

backed by the provision of S.36 (5) of the Constitution which provides that in a criminal

case, an accused would be presumed innocent until proven guilty.

Also, in the case of Okagbue vs Commissioner of Police (1969) NMLR 233, it was held

that in a criminal case, it is not for the accused to prove his innocence. However, there
are instances in which the accused has to prove his innocence. They include:

 Where the accused raises the defence of exemption or qualification from the

provision of law creating that offence; 139 (1) Evidence Act 2011.

 Where a statute specifically places the burden of proof on the defendant.

 Where special facts are within the knowledge of the accused; 140 Evidence Act

2011.

 Where the accused raises the defence of intoxication or insanity.

SHIFTING OF LAW

Shifting of law occurs in a situation in which one party relies on a law that is either

inapplicable or out of date. The burden of bringing this to limelight rests on the party

that knows about this flaw. If none of the parties know about the flaw in the law, the

burden of bringing this to limelight shifts to the judge. This is due to the fact that juria

novit curia (The court knows the law). Also, ignorantia judicis est calamitias innocientis

(the ignorance of the judge is the calamity of the innocent).

JUDICIAL PRECEDENT

Judicial precedent originates from the principle of stare decisis which means ‘let the

decision stand’. It means that similar cases must be treated alike. The reason for this is

to achieve uniformity and certainty in the administration of justice. Judicial precedent

has been defined in the case of Global transport vs free enterprises Nigeria limited

(2001) 2 SCNJ 224@243 as a golden rule in which decisions of higher courts in the

land are binding on lower courts. And decisions of courts of co-ordinate jurisdiction are

for all intents and purposes binding between these courts except if the previous decision

was made per incuriam.

It’s not all the aspects of the judgement that are relevant in determining the principle

decided in a court. It is the ratio decidendi that is relevant in determining the judicial

precedent. However, the other parts of the judgement are not entirely useless. The other

parts of the judgement are referred to as obiter dictum. Although an obiter dictum is not

really a present judgement, in a later case, it can be adopted as a ratio decidendi.

With all these, can it then be contended that judges make law? Yes, by all means,

however, their law is not legislation because it wasn’t passed by the national assembly.

Also, judicial precedents can either be binding or persuasive. Decisions made by court

of higher jurisdiction are binding on courts of lower jurisdiction. However, decisions by

court of co-ordinate jurisdiction are persuasive.

CONSTITUTIONAL ADJUDICATION

The Supreme Court began with a strength of eight judges and gradually, its dock expanded with
the increase in litigation and methods of judicial creativity while entertaining matters in its
appellate as well as original jurisdiction. Currently, it includes the Chief Justice and 29 puisne
judges. Recently, the number of Constitution benches has decreased significantly which has had
an adverse impact on the legitimacy and authoritativeness of its decisions. When the question of
law related to the interpretation of the constitution arises, it does requires a deeper understanding
thought process over the issue and therefore the presence of five or more judges on the bench can
ensure the same.

This need for 5 or more judges sitting in judgments on judgments related to the constitution first
began during the deliberations of the Drafting Committee in October 1948 when it recommended
that the proviso to Article 121(2) (what is now Article 145(3)) read that "it shall be the duty of
every judge to sit for the said purposes." the purpose herein being "deciding any case involving a
substantial question of law as to the interpretation of this Constitution". Now as the workload of
the Supreme Court has increased the practice of sitting in benches has averaged up to 8 and even
more judges sitting in such cases

Major inconsistency and irregularities in decision making are seen in the lower courts. More
confusion is further caused by the doctrine of precedent. Recently in a case that was related to
the Uttar Pradesh entry tax legislation in a writ petition filed by the Indian Oil Corporation Ltd.
two different judgments were given by the courts, while the matter being the same i.e. related to
levy of entry tax. In the case, the High court of Calcutta held it to be constitutional while the
High court of Allahabad upheld its constitutionality, such situations have to be avoided as the
lawyers then tend to tailor their argument to suit a particular bench of judges. This not only
delays the cases but is expensive for the litigant which is unethical.

The article 141 also provides for judge making laws and if the Court is indeed making law
through its pronouncements, it becomes necessary that there is certainty and consistency in the
law so made. Hence, it becomes important for the Court to avoid inconsistency in its decisions to
ensure that the law so made is suitable for a workable legal system.

The court has been indulged in adjudication over matters of rights and important questions of
laws and thus adjudication does have great impact on the social, economic and political life of
the citizens. Delay in the adjudication of such matters defeats the very purpose of justice. Yet, it
can take a few months and considering this it is better to constitute a separate permanent
Constitution bench devoted entirely to matters of the nature mentioned in Article 145(3) and
which does not have to take up regular routine matters.

What is Adjudication?

Adjudication means the legal process of resolving a dispute and the formal pronouncement of a
judgment or decree in a court proceeding and also the judgment or decision given. It includes a
hearing by a court, after notice, of legal evidence on the factual issue or issues involved and the
equivalent of a determination. There are three types of disputes resolved through adjudication:

1. Disputes between private parties, such as individuals or corporations;

2. Disputes between private parties and public officials; and

3. Disputes between public officials or public bodies.

Adjudication of a controversy generally provides with a fair and equitable judgment and the rule
of stare decisis makes the adjudicative process more efficient, uniform, and predictable. The
purpose of adjudication is to provide justice to the aggrieved party in any said dispute. The
judges pronounce law and give the required judgment, but in case of the absence of any
precedent they can also make laws. Particularly during the interpretation of the constitution
judges do make law according to the interpretation made.

Theories of Adjudication

The relevance and applicability of different decisions given by different adjudicators creates a lot
of confusion in any legal system. Further, questions have always been raised as to whether
certain judgments or methods of adjudication are acceptable or not. This confusion is yet to be at
bay. But several jurists and legal thinkers have given their own theories as to what should
constitute the basis for adjudication by Judges in any Court of law.

1. Theory by Benjamin Nathan Cardozo

He was a well-known American lawyer and had a great influence on the development of law in
America. He believed in the Realist Theory. In his theory he totally rejected the Austinian
concept of logical interpretation of law and his analytical approach to the judicial process and he
emphasized on his need to interpret the law in the light of the social necessities and realities of
life. In his most renowned work, The Nature of the Judicial Process', he stated, "The judicial
process is one of compromise between paradoxes, between certainty and uncertainty, between
the literalism that is exaltation of the written word and the nihilism that is destructive of and
order."

He said that the subjective view of the problem cannot render complete justice and that during
decision making the judge's, own beliefs, traditions or morals get in the way of adjudication. He
said that in order to give out justice, objective approach would have to be taken keeping in view
the traditions, customs, morals, and needs of the society.

He was primarily concerned with two aspects of the law:

1. How judges need to decide the cases before them?

2. How law itself evolves and grows in the society.

According to Cardozo, Judges are not separate from social realities and that social sciences have
a direct effect on the lives of the people and thereby the development of law. Therefore, law
must be kept at pace with the rest of the society and shape itself according to various social
developments to attain the ends of justice. He stated that all adjudication is 'experimental' and
that each new case was experiment in itself, where the rules applied in previous cases of similar
nature may be used. He gave great importance to precedents. In his own words, "Every judgment
has a generative power. It begets in its own image." He valued precedents and called them 'the
living form of law.

2. Theory by Oliver Wendell Holmes, Jr.

He was an American jurist who compared the Law to a bad man "who cares only for the material
consequences of things rather than as an independent moral entity". Holmes defined the law in
accordance with his pragmatic judicial philosophy rather than a set of abstract, rational,
mathematical, or in any way unworldly set of principles. Holmes said that, "The prophecies of
what the courts will do in fact, and nothing more pretentious, are what I mean by the law."

Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the historical,
social, and economic aspects of the law would be in a position to fulfil his functions properly. He
theorized that lawyers and judges are not logicians and mathematicians.

He writes, "The life of the law has not been logic; it has been experience. The felt necessities of
the time, the prevalent moral and political theories, intuitions of public policy, avowed or
unconscious, and even the prejudices which judges share with their fellow-men, have had a good
deal more to do than syllogism in determining the rules by which men should be governed.

Holmes also insisted on the separation of "ought" and "is," which are obstacles in understanding
the realities of the law. As a moral sceptic, Holmes stated that if you want to know the real law,
and nothing else, you must consider it from the point of view of a "bad man" who cares only of
the material consequences of the courts' decisions, and not from the point of view of a good man,
who find his reasons for conduct "in the vaguer sanctions of his conscience."

3. Theory by Ronald Myles Dworkin

Dworkin has been an influential contributor to both philosophy of law and political philosophy.
According to him, "Judges should decide hard cases by interpreting the political structure of their
community in the following, perhaps special way: by trying to find the best justification they can
find, in principles of political morality, for the structure as a whole, from the most profound
constitutional rules and arrangements.

---

Distinctive perspective on the theory of Justice: -

Man has been continuously struggling for the maintenance of justice. In democratic systems,
justice is given the highest place. The word justice is derived from the latin word jus which
means to bind' to contract. The Greek word for justice is Dike. Its gives the meaning of nearer to
righteousness. Justice means following of norms (customs). Justice stands for just conduct,
fairness or exercise of authority in maintenance or right.
Concept of justice is as old as the political theory itself. Different interpretations are given to
justice from time to time. Some writers regard justice as virtue while others hold it for equality'
Some consider it as rule of law'. Justice is not only an integral part of political science, but also
of ethics, law, philosophy, etc.
Development Of Justice
In the primitive society, the basis objective of justice was to inflict punishment on the offenders
of a crime. The punishment was very served. An eye for an eye and a tooth for a tooth was part
of the administration of justice. the objective was to prevent the future crimes. Hence, the nature
of justice in the primitive was purely negative. It is based on conventional morality or tradition
or custom.

Types of Justice

1. Social Justice:

In contemporary times a large number of scholars use prefer to describe the concept of Justice as
Social Justice. Social Justice is taken to mean that all the people in a society are to be equal and
there is be no discrimination on the basis of religion, caste, creed, colour, sex or status.

However, various scholars explain the concept of Social Justice in different ways. Some hold
that social justice is to allot to each individual his or her due share in the social sphere.
According to some others, distribution of social facilities and rights on the basis of law and
justice constitutes social justice.

What is Social Justice?

Social justice is another name for equal social rights. Social Justice aims to provide equal
opportunities to every individual to develop his inherent qualities.-Barker
By social justice we mean ending all kinds of social inequalities and then to provide equal
opportunities to everyone.-[Link].B. Gajendragadkar

Social democrats and modern liberal thinkers define social justice as the attempt to reconstruct
the social order in accordance with moral principles. Attempts are to be continuously made to
rectify social injustice. It also stands for a morally just and defensible system of distribution of
reward and obligations in society without any discrimination or injustice against any person or
class of persons.

In the Indian Constitution several provisions have been provided with a view to secure social
economic and political justice. Untouchability has been constitutionally abolished. Every citizen
has been granted an equal right of access to any public place, place of worship and use of places
of entertainment.
The state cannot discriminate between citizens on the basis of birth, caste, colour, creed, sex,
faith or title or status or any of these. Untouchability and apartheid are against the spirit of social
justice. Absence of privileged classes in society is an essential attribute of social justice.

2. Economic Justice:

Economic Justice is indeed closely related to social justice because economic system is always
an integral part of the social system. Economic rights and opportunities available to an individual
are always a part of the entire social system.

Economic justice demands that all citizens should have adequate opportunities to earn their
livelihood and get fair wages as can enable they to satisfy their basic needs and help them to
develop further. The state should provide them economic security during illness, old age and in
the event of a disability.

No person or group or class should be in a position to exploit others, nor get exploited. There
should be fair and equitable distribution of wealth and resources among all the people. The gap
between the rich and the poor should not be glaring. The fruits of prosperity must reach all the
people.

There are present several different views regarding the meaning of economic justice. The liberals
consider open competition as just and they support private property. On the other hand, the
socialists seek to establish complete control of society upon the entire economic system. They
oppose private property. Whatever be the ideology or the system, one thing is clear and that is
that all citizens must be provided with basic necessities of life. All citizens must have their basis
needs of life fulfilled (Food, clothing, shelter, education, health and so on.)

3. Political Justice:

Political justice means giving equal political rights and opportunities to all citizens to take part in
the administration of the country. Citizens should have the right to vote without any
discrimination on the basis of religion, colour, caste, creed, sex, birth or status. Every citizen
should have an equal right to vote and to contest elections.

Legal justice has two dimensions-the formulation of just laws and then to do justice according to
the laws. While making laws, the will of the rulers is not to be imposed upon the ruled. Laws
should be based on public opinion and public needs. Social values, morality, conventions, the
idea of just and unjust must be always kept in view.

When the laws do not meet the social values and rules of morality, citizens neither really accept
nor abide by laws. In this situation, the enforcement of laws becomes a problem. Laws are just
only when these are accepted not out of fear of external power but when inspired by internal
feeling for the laws being good, just and reasonable.

4. Legal Justice:
Legal Justice means rule of law and not rule of any person. It includes two things: that all men
are equal before law, and that law is equally applicable to all. It provides legal security to all.
Law does not discriminate between the rich and the poor. Objective and due dispensation of
justice by the courts of law is an essential ingredient of legal justice.

The legal procedure has to be simple, quick, fair, inexpensive and efficient. There should be
effective machinery for preventing unlawful actions. The aim of law is the establishment of what
is legitimate; provide legal security, and prevention of unjust actions. -Salmond.

Thus, Justice has four major dimensions: Social Justice, Economic Justice, Political Justice and
Legal Justice. All these forms are totally inter-related and interdependent. Justice is real only
when it exists in all these four dimensions. Without Social and Economic Justice there can be no
real Political and Legal Justice.

Various Theories of Justice Reflected in Indian Judgments

In India from the very old period itself Justice was followed and it was even considered to be the
very embodiment of God itself where its sole mission was to uphold justice, truth and
righteousness. Vedas also demonstrated its deep commitment towards justice. Manu, Yajnavakya
etc also shed light on the nature and quality of justice which was followed in the ancient India.
With the advent of the Britishers, they followed the status qou and didn't go for much alteration
to the laws enacted by Hindus and Muslims.

But in fact it was during the colonial period, the Britisher's drafted laws embodying substantial
and procedural justice where ideas of rule of law, freedom of persons, civil liberties, natural
justice, and equality were reflected. Later with the enactment of the Constitution, these became
law of the land which is evident from the Preamble, Part III and IV of the Constitution.

Theories of Justice And Indian Judiciary

As Cardozo has rightly stated in his book Nature of Judicial Process that a judge may be
influenced by his conscious and subconscious factors in arriving a judgment. And he may even
refer to various theories of justice as propounded by western philosophers during the same.

Judiciary which is said to be the independent organ of the government has indeed taken effective
efforts to reflect various theories of justice as propounded by various jurists in their judgments.
Such theories of justice includes Bentham's Utilitarian theory of justice, Hebert Spencer's and
Immanuel Kant's theory of liberty of individual, Dwarkin's Rights Thesis, Rawl's Theory of
Justice, Amartya Sen's Idea of Justice, and also Socialist, Gandhian and natural principles of
Justice etc. Hence a brief analysis of the same is stated below.

Rawl's Theory of Justice

Rawl's has propounded the social contract theory and he points out that “Justice is the first virtue
of social institution”. Rawls theory of justice which inculcates the issues of liberty, social
equality, democracy etc can be evidently witnessed in Indian judgments.

State of Madras v. Champakam Dwarairaja[1] was the main case on this point, after which the
first amendment to the Constitution followed.

Indira Sawhney v. Union of India[2] was the then landmark judgment where by reservation of
jobs for the backward classes was upheld. The ideas of equality through protective
discrimination for ensuring justice was further followed in a number of judgments even in the
judgments of Nagaraj v. Union of India[3] and Jurnail Singh v. State of Gujarat pronounced in
the recent past.

bbnThe principle of distributive justice, which dates back its origin to Aristotle and as
emphasized by John Rawl has been enshrined in the Indian Constitution, Articles 142 and 144
along with Part III and IV of the Constitution. Various judgments discussing environmental
issues highlighted the principles of distributive justice.

Doctrine of Public Trust as upheld in:

M.C Mehta v. Kamal Nath[4] and as followed in [Link] Singh v. Indian Oil Corporation[5]
and also Polluter Pay principle as laid down by the court in Indian Council for Enviro-Legal
Action v. Union of India[6] and Vellore Citizens Welfare Forum v. Union of India[7] which
forms the fundamentals of environmental law evolves its base from these principles. Even the
landmark Maneka Gandh[8]i judgment also reflected this principle.

Dwarkin's Rights Thesis

Ronald Dwarkin in his book- Rights Thesis, emphasises the importance of the rights of the
individuals. Upholding the common citizen's right and liberty to hold public meetings on streets
and the extent to which the state could regulate it, Himat Lal K. Shah v. Commissioner of
Police[9], marked an important decision in upholding liberty ideals of justice.

The individual's right to dignity was reinforced in:

1. Kharak Singh[10],
2. Satwan Singh[11]
3. Cooper cases[12] and
4. Maneka Gandhi v. Union of India[13]

was the judgment which marked the paradigm shift towards ensuring individual dignity even in
cases where the right of a person is affected by a procedure established by law. The judgment
also reflected the principles of dharma and ancient theories of justice of neethi and nyaya.
Judgment thereby also included substantial justice along with procedural justice. Principles of
Due process of Law of U.S Constitution, was thereby interpreted to the Constitution, under
Article 21.

Libertarianism And Justice

Libertarianism strongly value for individual liberty and freedom and relates to the classical
liberal traditions of John Locke, David Hume, and Kant etc. In NALSA[14] judgment, the court
referred to Kant's 225 year old principle of free will and hedonist utilitarianism by Bentham and
stated that in the present case there exists no dichotomy between individual freedoms as against
public good and hence upheld the rights of the third gender persons. It was followed in Navtej
Singh Johar v. Union of India, striking away the draconian law of section 377 of Indian Penal
Code.

In Shayara Bano v. Union of India[15], enforcing equality the instant triple talaq was strucked
down by the court and also in Joseph Shine v. Union of India[16], the Supreme Court of India in
its landmark judgment held that adultery would no longer be a criminal offence under Indian
law, outstripping 158 year old law of section 497 of Indian Penal Code.

Ulititarian Theory Of Justice

Jeremy Bentham propounded his famous utilitarian theory where he claims that a law should be
enacted with the prime object of providing maximum justice to the maximum number of people.
Public utility is thereby determined through the hedonistic calculus.

This was portrayed in Olga Tellis v. Bombay Muncipal Corporation[17], where Chandrachud. J.
applied this doctrine and explained the concept in the brief statement:
“Human compassion must soften the rough edges of justice in all situations”.

The court ruled though the eviction order is valid under Article 14 and 19 of the Constitution,
right to life was enlarged to engulf the right to livelihood as being part of liberty of an individual.
Court thereby focused upon the concept of welfare state.

Referring to the Hume's theory of justice, in Union of India v. Tulsiram Pate[18]l, the court
underlined that public utility is the sole origin of legal justice and for a useful legal system, it
must adhere to such rules, even though it may cause injustice in particular cases. In Bangalore
Medical Trust[19] case also the principle of public utility was pointed out by court in preferring
public parks over hospitals.

Amartya Sen's Theory Of Justice

Amartya Sen propounded the Social Choice theory, whereby he states that a law should be
enacted understanding the needs of the society and should be based on demand of justice. Recent
landmark judgment of Puttuswamy v. Union of India, apart from dealing with privacy it also
dealt with many other aspects. It invoked the writings of Amartya Sen's Idea of Justice and stated
that Political liberties and democratic rights are the constituent components of development.
Chandrachud .J. even overruled his father's judgment in ADM Jabalpur v. Shivakanth Shukla[20]
and thereby upheld the dissent of Khanna J. and thereby the recognition of right to life and
personal liberty under the Constitution.

In 2010, Pradeshiya Jan Jati Vikas Manch and Others v. State of UP and Others[21], referred to
Part IV of the Amartya Sen's Idea of Justice- Public Reasoning and Democracy in ensuring the
civil and political rights of the Scheduled Tribes and person's right to representation at the grass
root level. B.K. Pavitre v. Union of India referred to Amartya Sen's Merit and Justice in
understanding merit as an instrument in achieving social ordering and in lessening economic
inequality. Court thereby ruled that providing reservations to SC's and SCT's is not at odds with
the principle of meritocracy. Court ruled that merit must not be limited to inflexible criteria's
such as ranks in exams but seek to provide equality in the society.

Basic Structure Theory

After the enactment of 24 th, 25th, 26th and 29th amendments of the Constitution, their validity
was challenged on authority of Golak Nath[22] Judgment in Keshavanda Bharathi v. State of
Kerala[23]. But Golak Nath was overruled and the basic structure doctrine was upheld by the
judiciary where the basic structure has not been still defined and is enlarged to include many of
the rights of the individuals which cannot be abrogated by the Parliament. Indira Nehru Gandhi
v. Raj Narain[24] upheld the independence of judiciary in dispensing justice and held that
judicial review is a basic feature of the constitution.

Consequently after 1976, Supreme Court took considerable efforts to bring a new egalitarian
order in furtherance of Directive Principles of State Policy. Thus in Minerva Mills[25], court
underlined that Part III and IV of the constitution is like a twin formula for achieving the social
revolution.

Gandhian Theory of Justice

It is based on the principles of truth, equality and social justice. The concept of Lok Adalath is an
innovative Indian contribution to the world jurisprudence and it is based on the Gandhian
principles. It was so held in the case of M.P State Legal Service Authority v. Prateek Jain[26]

Conclusion:
So in fact there may exist, no society without justice. And the concept pf social conditioning and
individual responsibility plays an important role in theories of justice.

Along with the analysis of these judgments where we can observe the reflections of various
judgments, in addition we have seen the judicial activism of the court many a times, and this law
making function of the court can be traced back to the realist school of jurisprudence which can
be said in line with the Austanian concept of command over the sovereign, whereby here judge is
considered to be supreme in setting law in a legal right. PIL's have proved to be effective due to
the very reason that the judges have evolved laws through directions. Thus it can be said that
judgments are the very embodiment of justice were we can observe various theories been
reflected there.

A few human ideals have persisted in our society for as long as the ideals surrounding “justice”.
The relevance of the ancient Greek philosophers that we so often come across, such as Plato and
Aristotle in a modern world so different from theirs lies in the unanswered questions they
deliberated on. One of these is the concept of “Dikaiosyne” which loosely translates to the spirit
of righteousness or justice. This led to the question of ‘what is Justice’? Several centuries later,
justice still remains to be an unanswered question with no definite explanation.

Even children, not completely socialised to the “morals” of the grown up world have strong
notions of fairness and an acute aversion to apparent injustice. Amartya Sen, says in the
introduction to his book ‘The Idea of Justice’ that… “the strong perception of manifest injustice
applies to adult human beings as well (as children). What moves us, reasonably enough, is not
the realization that the world falls short of being completely just – which few of us expect – but
that there are clearly remediable injustices around us which we want to eliminate.”

Indicating that (1) justice is a moral- an inbuilt yardstick by which humans can judge their
conduct and that of others and not a learnt behavior, (2) we do realise that justice is an
unachievable standard and (3) that humans strive to eliminate what they perceive as a correctable
injustice that occurs in their surroundings. When it comes to the third point, it brings about a
subjectivity in the idea. Every person may perceive a situation differently and estimate it to be
just or unjust by his/her own standards (as is often the case with any moral judgement).

Dharma as the foundation of legal ordering in Indian thoughts”-

By and large, not only people in general, but also many in the legal circles, perceive Hindu Law
to be the one contained in the Four Enactments brought into existence by the Parliament a few
years after independence i.e., the Hindu Marriage Act 1955, Hindu Succession Act, 1956, Hindu
Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. That
is considered to be the personal law of the people, who practice Hinduism. This, however, is not
a correct perception. If one closely analyses the subject, it emerges that the law pertaining to
marriage, succession, adoption and maintenance is a small fraction of the Hindu Law that
remained in force, till the invaders have brought into existence their own system of laws. Hindu
Law, as it existed then, covered many substantive facets of law, as well as a detailed and perfect
procedure of adjudication. Added to that, the entire edifice of Hindu Law rested upon the
foundation of Dharma, in contradistinction to need and expediency, that constitute the basis for
the English Law. Dharma is a very wider concept and law is a small branch of it. There is no
equivalent term for Dharma in English. In a way, it can be said that Dharma is a distilled form of
ancient Indian literary wealth, that includes, the Vedas, the Smritis, the Puranas and the
commentaries by the sages and the learned people. It is such a typical and complex phenomenon
that it is not amenable to any precise definition. Whenever a concept or phenomenon is
incapable of being defined, at least one can present it by way of description. In case of Dharma,
however, even description would be either inadequate or incomplete. In his treatise, Hindu Law
and usage, John D. Mayne said, “According to Hindu conception, Law, in the modern sense, was
only a branch of Dharma, a word of widest import and not easily rendered into English.” F.D.
Mulla, in “Hindu Law”, observed, “Law, as understood by the Hindu, is a branch of Dharma

Dharma not only exhorts the people to acquire qualities, such as truthfulness, non-violence,
respect to the persons around, and the creation at large, compassion towards the needy, but also
to desist from being greedy, dishonesty, unfaithful, etc. In the Encyclopaedia of Hinduism, it is
mentioned: “Down the ages, the word (Dharma) has been used to mean religion, law, duty,
religion’s right or duty, code of conduct etc. The well-known Dharmashastras are those

All of us are aware that Hinduism is one of the oldest civilisations in the world. Over the
millennia, the Sages and Rishies have presented to the mankind, the knowledge of highest order,
even according to the modern standards; in almost all the fields; be it, Chemistry, Alchemy,
Medicine, Astrology, Philosophy, Economics, Astronomy, Political Science, Spirituality,
Environmental Science, Sculpture, Architecture, etc. The Sanskrit language in which all these
scriptures were written was almost kept out of use, during the alien rule, spread over about 1000
years. It is only in certain cases that the private agencies preserved the literature and continued

~ By Justice L. Narasimha Reddy

By and large, not only people in general, but also many in the legal circles, perceive Hindu Law
to be the one contained in the Four Enactments brought into existence by the Parliament a few
years after independence i.e., the Hindu Marriage Act 1955, Hindu Succession Act, 1956, Hindu
Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. That
is considered to be the personal law of the people, who practice Hinduism. This, however, is not
a correct perception. If one closely analyses the subject, it emerges that the law pertaining to
marriage, succession, adoption and maintenance is a small fraction of the Hindu Law that
remained in force, till the invaders have brought into existence their own system of laws. Hindu
Law, as it existed then, covered many substantive facets of law, as well as a detailed and perfect
procedure of adjudication. Added to that, the entire edifice of Hindu Law rested upon the
foundation of Dharma, in contradistinction to need and expediency, that constitute the basis for
the English Law. Dharma is a very wider concept and law is a small branch of it. There is no
equivalent term for Dharma in English. In a way, it can be said that Dharma is a distilled form of
ancient Indian literary wealth, that includes, the Vedas, the Smritis, the Puranas and the
commentaries by the sages and the learned people. It is such a typical and complex phenomenon
that it is not amenable to any precise definition. Whenever a concept or phenomenon is
incapable of being defined, at least one can present it by way of description. In case of Dharma,
however, even description would be either inadequate or incomplete. In his treatise, Hindu Law
and usage, John D. Mayne said, “According to Hindu conception, Law, in the modern sense, was
only a branch of Dharma, a word of widest import and not easily rendered into English.” F.D.
Mulla, in “Hindu Law”, observed, “Law, as understood by the Hindu, is a branch of Dharma”

Dharma not only exhorts the people to acquire qualities, such as truthfulness, non-violence,
respect to the persons around, and the creation at large, compassion towards the needy, but also
to desist from being greedy, dishonesty, unfaithful, etc. In the Encyclopaedia of Hinduism, it is
mentioned: “Down the ages, the word (Dharma) has been used to mean religion, law, duty,
religion’s right or duty, code of conduct etc. The well-known Dharmashastras are those authored
by the Sages like Gouthama, Bhoudhayana, Apastamba, and Vashista.

All of us are aware that Hinduism is one of the oldest civilisations in the world. Over the
millennia, the Sages and Rishies have presented to the mankind, the knowledge of highest order,
even according to the modern standards; in almost all the fields; be it, Chemistry, Alchemy,
Medicine, Astrology, Philosophy, Economics, Astronomy, Political Science, Spirituality,
Environmental Science, Sculpture, Architecture, etc. The Sanskrit language in which all these
scriptures were written was almost kept out of use, during the alien rule, spread over about 1000
years. It is only in certain cases that the private agencies preserved the literature and continued
learning. In certain other cases, countries like Germany were benefited by undertaking study of
some of the scriptures and the Sanskrit language. The greatness of the ancient India’s
contribution to various fields of study can be illustrated by taking one or two examples.

For the subject of Anatomy, in the undergraduate courses of medicine, almost all over the world,
the text book is the one, authored by “Grey”. The Chapter pertaining to “Plastic Surgery” in that
book commences with a sentence, which reads ‘the First Plastic Surgery was conducted by
Sushrutha’. Albert Einstein, the famous Scientist acknowledged that but for the invention of
‘Zero’ in ancient India,
the progress in the modern science would not have been possible. After conducting a detailed
research, one Mr. Emmanuel found that the quadratic equation, whose invention was attributed
to Sir Isaac Newton, has, in fact, originated in Kerala. There are hundreds of such examples. It
is not without reason that the renowned companies such as, Google are celebrating the centenary
of Sreenivasa Ramanujam, the Great Mathematician, who has just provided the taste of ancient
Mathematics to the western world.

The achievement of ancient India, in the field of law is almost on the same lines. During the
Vedic period, the life of citizens used to be guided by the practices ordained in them. With the
passage of time, the necessity to prepare a code of conduct based on the high values, including
those enunciated in Vedas was felt. Such codified forms came to be known as Smritis. The first
Smriti was handed out to the humanity, by Manu. Now-a-days, we find certain organisations and
individuals exhibiting their utmost contempt towards Sage Manu and his works, in the name of
progressive thinking and modern culture. It is relevant to mention here that during the
Mohammedan’s Rule, excepting the fields of Criminal Law and Personal Law, of those who do
not practice in Hinduism, Hindu Law continued to be applied in the legal systems. Similarly,
during the British Rule also, principles of Hindu Law were never disregarded. On the other
hand, they were viewed with utmost respect and British Judges, particularly, those in the High
Courts in India and Privy Council in England made every effort, to understand and analyse
them. Almost 50% of the judgments of the Privy Council, during the British Rule dealt with the
principles of Hindu Law. Today, we don’t find any parallel to them. For instance, in Sri Bulusu
Gurulingaswami vs. Sri Bulusu Ramalakshmamma, XXVI Indian Appeal (1898 and 1899), the
Privy Council dealt with the question as to whether the only son of a couple can be given in
adoption. Lord Hob House took note of all the Smritis and commentaries on the subject and he
commenced his discussion by observing, “the most Revered of all the Rishies or Sages is
Manu….”

The discussion undertaken by the Privy Council on a question, which may appear in the so-called
modern times to be trivial, is indeed astonishing. Copious reference was made to the Manu
Smriti, Dattaka Meemamsa, commentaries by Sages and modern jurists and views of judges in
various cases.

“No distress existing, the giver commits a sin on account of the prohibition”. If then the giver
commits a sin, the taker who enables him to do it cannot be free from sin; and if the commission
of a sin makes the transaction void in law, there can be no gift and consequently no adoption.
And yet nobody contends for the legal force of this prohibition. It does not appear that in cases
of adoption any inquiry is ever made about the distress of the natural father.”

As regards the law that was being enforced during British Rule, the Bench observed: “…The
British rulers of India have in few things been more careful, than in avoiding interference with
the religious tenets of the Indian peoples.”

The reason underlying the respect shown to such principles was; in the words of the same
learned Judge, “…They (the tenets) provide for the peace and stability of families by imposing
limits on attempts to disturb the possession of property and the personal legal status of
individuals.” In contrast, in the name of so-called modernism and progressive thinking, we do
not hesitate to brand any ancient principle of law or tenet has to retrograde or to condemn it.

The efforts made by the Judges to know the law which is mostly in Sanskrit, can be gauged from
the following passage of the same judgment: “Their Lordships have, however, one advantage
over their predecessors in these inquiries. The greater attention paid of late years to the study of
Sanskrit has brought with it more translations of the sacred Hindu books, and closer
examinations of texts previously translated. And in the Allahabad case especially, the
appellants’ side was argued in the High Court by Mr. Banerjee, who is stated by the Court to be
familiar with Sanskrit, and it is the subject of a very elaborate judgment by Knox J., who is a
student of Sanskrit, and, as he tells us, has paid special attention to the books of Manu and
Vasishtha.” Many so-called legal luminaries of the modern time would have pitied Justice Knox,
for his wasting time in learning Sanskrit and reading books by Manu and Vasishtha.

As mentioned earlier, after Manu, several sages bestowed their attention to the codification of the
law. The prominent among such Smritis are those of Yagyavalkya and Katyayana. Yagyavalkya
himself referred to as many as 20 Sages from whose work, he took assistance. In addition to the
Smritis, treatises like Dattaka Meemamsa, Vyavahara Chandrika, Antakshara Dayabhaga,
Vivadha Chintamani, to mention a few, have come into existence. Broadly, four schools, viz.,
Mithila School, The Bombay School, the Madras School and the Bengal School represented the
Hindu Law, with slight difference as to approach on certain aspects in the respective areas.

The greatness and perfection in approach in these Smritis and other ancient texts on law is in no
way comparable to the laws that existed during the subsequent periods. For instance, in any and
every legal system, adjudication is the principal activity and the outcome of the adjudication is
the judgment. To my knowledge there does not exist any precise definition of judgment, either
in procedural or in substantive laws, particularly the laws that are in force in India. In his
Dharmakosa, Sage Vyasa defined the judgment in the following verse:

Purvothare kriyapadam

Pramanam tat pareekshanam

Nigadam smrithi vakyancha

Yada sabhyam Vinischite

Jayapatrabhilekhayet

It means that a judgment should contain the gist of

a) purva, (purva paksha e. plaint),

b) uttare (uttarapaksha i.e. the statement),

c) kriyapadam (issues),

d) pramanam (evidence),

e) tatparikshanam (its analysis),

f) nigadam (argument of an advocate),

g) smriti vakya (relevant provisions of law),

h) sabhaya vinischitam (opinion of the judges),

i) Jayapatraha (Royal seal)

One cannot even substitute a syllable, to such a perfect definition of an important stage in
the adjudication.

Though, people talk of honesty and integrity of judges, day in and day out, we do not find any
specific code of conduct in the general law. In Shukraneethi, a sloka depicts how an adjudication
gets adversely effected or ceases to be impartial. He says,

Pakshapathadhiropasya karananicha panchavye

raga lobha bhaya dvesha vadhinocha rahashrutani.

It means that there are five reasons, on account of which a Judge ceases to be impartial. They
are raga (affection), lobha (Greed), bhaya (fear), dvesha (hatred), vadinocha rahashrutani,
(discussing with the party to the proceedings secretly). Every meticulous aspect regarding the
manner in which the proceedings must be conducted in the Court, were covered.

The enunciation of a principle or theorem i.e. sutra is common to all fields of study. A sutra
almost resembles a definition. Even in modern field of study, we lack the definition of a theorem
or principle. In one of the ancient works, the characteristics of the sutra are enunciated in a sloka
which reads:

Alpaksharam Asangdhigdam

Saravath Viswathomukam

Asthobhana anavadhyancha sutram sutro vidhuhu.

According to this, a sutra is the one which is,

a) Alpaksharam (precise), b) Asangdhigdam (unequivocal),

c) Saravath Viswathomukam (it carries the same meaning everywhere), d) Asthobha (it should
not be the result of theft i.e. plagiarism), e) Anavadhyancha (its text or context should not be a
prohibited one).

In the field of interpretation Sage Jaimini made substantial contribution through his work on
Mimamsa. For example, he said that if a provision just gives a command, it is ‘Vidhi’ and is
binding whereas, if the text proceeds to furnish the reason, or basis for the command, it is
‘Arthavada’ and does not command the same binding force as does the ‘Vidhi’.

What is mentioned above are only miniscule of the treasure of great knowledge. An eminent
Indian jurist like Nani Palkhiwala paid encomiums to rich cultural heritage of ancient India.
For one reason or the other, we deprived not only to ourselves, but also to the rest of the world,
the benefit of great ancient works in the field of law, on account of our indifference or
ignorance. There is a general saying that the easiest way to get recognition as an ‘intellectual’ in
India, is to denigrate anything which is associated with the ancient Indian culture. Field of law
has no exception. If an advocate refers to ancient texts in his argument, not only the Judge but
also those sitting in the Court would either laugh at him or at least pity him for not being
progressive. On the other hand, an advocate can easily impress the Court by taking the names of
Lord Caterpillar or Lord Butterfly in support of his proposition and out of fear of being branded
as ignorant, one would not even ask as to whether there existed Judges with those names.

John D. Mayne, the author of the most popular treatise on Hindu Law had appeared in vast
number of cases pertaining to Hindu Law in the Privy Council and other superior courts. In the
introduction to the first edition of his treatise written in 1878, he observed,

“I cannot conclude without expressing my painful consciousness of disadvantage under which I

have laboured from my ignorance of Sanskrit. This has made me completely dependant on
translated works. A real satisfactory treatise on Hindu Law would require its author to be
equally learned as a lawyer and an Orientalist…. Hitherto, unfortunately those who have
possessed the necessary qualifications have wanted either the inclination or the time. The
lawyers have not been Orientalists, and the Orientalists have not been lawyers.”

One would have expected the situation to improve after independence. Unfortunately, it has
deteriorated, so much so, that the law makers, do not have inclination even to look into
translations,
let alone, the original works. We have turned blind eye to our great treasure and the result is that
our laws, particularly Hindu Law as it existed now is the result of the knee-jerk reaction of
someone without even showing any inclination to know the background of the concept, which is
readily tinkered with. Just as our educational system, which was the most ideal in ancient times
has been hijacked and almost defaced by certain vested interests, Hindu Law was also given the
roughest if not wildest treatment and was reduced almost to some precepts of convenience. If
Hindu Law in its complete form was a perfect Vehicle with Sophisticated mechanism, what is
handed out by the Parliament, after independence, is just four wheels, detached from the
Vehicle. Which the wheels have nothing to propel or drive them, the Engine, chassis and body
remained idle for want of wheels.

If one intends to resurrect the glory of ancient Indian Law, the task is commendable, but very
difficult and challenging. Fortunately, for us, there is valuable material available, be it, in
Library at Tanjore (Tamil Nadu), or P.B. Kane Library at Pune. Scholars of high order are also
available. One has only to put them together and get the work done. However, the challenge in
this regard is worth being accepted.
I hope and trust that the outcome of the national seminar on Hindu Law would lead to tangible
steps.
[1] It is the text of the key-note address delivered on 16 th May, 2016 at the National Seminar on
Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies

Problems of accountability and judicial law-making

Judicial Accountability

Accountability is also called answerability. It is the liability of person or authority toward the
person to answer for his act or omission. It shows to whom an authority is answerable. At every
stage a person is answerable to some other person. Such stage is because there must be fair &
perfect conduct. So it is quit necessary that each & every authority must be answerable to the
other authority. There might be control of a superior on the inferior regarding the conduct and
the fair practice.

Every other institution of the State is accountable to the anti-corruption agencies, and to the
judiciary which has the power of judicial review over every executive and legislative action.
Moreover, the political executive is accountable to the legislature and the legislature is
democratically accountable to the people-that at least is the theory of our constitutional scheme.

However, when it comes to the judiciary, we find that it is neither democratically accountable to
the people, nor to any other institution. Judges cannot be accountable to the electorate as
politicians are accountable: The duties of the Judiciary are not owed to the electorate; they are
owed to the law, which is there for the peace, order and good government of all the community'.
On the other hand, the point is made that accountability is required nowadays in most areas of
public life and that the judiciary should be no exception to this rule. A full Bench of the Delhi
High court held on the 12th of January 2010. The historic judgment which rules that the office of
the Chief Justice of India (CJI) is a "public authority" that comes under the ambit of the Right to
Information (RTI) Act, also held that judges of superior courts should make public their assets.

"Judicial independence was not a judge's personal privilege but a responsibility cast upon him
"Judges like all other public officials in the community must be accountable to the community.
The judiciary has become almost a law unto itself, answerable to none and under no pressures to
reform or change with time. There is no manner of public accountability procedure, grievance
reported by the public, no monitoring or periodic performance audit and its annual reportage and
public discussion by concerned organs. The only recourse against a judge committing judicial
misconduct is impeachment, which has been found to be a totally impractical remedy.

It is a fact that in the present parliamentary system, judiciary has a role to play. But there are
many weaknesses, shortcomings and deficiencies in the functioning of judiciary, which have to
be rectified and remedied, so that the judicial system would become more efficient.
There are reports that a section among the judges is corrupt. There are allegations that some
judges are showing favouritism and some are inefficient. Some judgments usurp the powers of
executive and legislature. Some judgments are trying to rewrite the Constitution by giving
innovative interpretations of the Constitutional provisions in order to restrict the power of
parliament in making laws and to capture more powers for the judiciary. And some judgments
ignore the interest of the common people by their complete surrender to the globalization
philosophy. The exorbitant court expenses and inordinate delay in court proceedings are denying
justice to common man. The people are increasingly losing confidence in the judicial system.
Even a reasonable criticism against a judgment can be branded as contempt of court as per the
provisions of the present law. The system that deals with the contempt proceedings is also
defective leading to denial of natural justice. A dangerous situation is created due to the
cumulative effect of these factors. The present situation nurtures the emergence of authoritarian
trend from certain judicial pronouncements. The globalization forces are increasingly trying to
make use of judiciary to facilitate implementation of their agenda as the other two pillars of the
government executive and legislature are influenced by democratic intervention.

If judiciary is criticized, people may lose faith in the judicial system and it would result in
dangerous situation. We do not agree with these views. Whatever be the manner of criticism, if
the judicial system is without shortcomings or weaknesses, people would not lose confidence in
it. Confidence is to be earned through the efficient functioning of the judicial system and by
correcting its mistakes and deficiencies. Confidence cannot be inspired by threats of contempt of
court proceedings and by prohibiting public criticism

Judicial Accountability means to whom the judiciary is answerable for his conduct. An
accountability of judiciary has always being in question. Many debates are been seen on the issue
of judicial accountability. There are credible complaints against the higher Judiciary regarding
the corruption, excessive use of power, arbitrary exercise of judicial discretionary etc.

Judicial Accountability on the point of judicial legislation.

In the last decade the judiciary has been many times criticized by other organs of society for it’s
over activism and the judicial legislation. Le. In June 2011. Supreme Court has directed the
government to sale out the wastage wheat to people at lower price. This direction is too much
criticized by the constitutionalist and by the executive of the country. It's a government,
Executive to decide the policy of selling or purchasing the wheat. Another instance is that S.C.
has issued a direction to govt. & TRAI to cancel the license given to companies in A Raja 2 G
Spectrum Scam. Now the question arisen before the executive that who will be responsible for
the losses of companies due to cancellation of licenses. Here the judiciary is entered into the
domain of executive which is harmful to the parliamentary democracy of the country. It is
because the judiciary is not answerable to any other organ of the constitution. Harlan F. Stone
wrote in United States v. Butler: "... While unconstitutional exercise of power by the executive
and legislative branches of the government is subject to judicial restraint, the only check upon
our own. exercise of power is our own sense of self-restraint. (297 U.S. 1, 78, 79, 1936)

The higher judiciary is expected to exercise the power of judicial review where the executive or
legislation is crossing their limit provided by the constitution. While acting as a judge one has to
undertake the self-restraint principle that he also should not encroach in to the domain of other
organ.

The great Felix Frankfurter justified the criticism of judges thus: "Judges as persons or courts as
institutions are entitled to no greater immunity from criticism than other persons or institutions.
Just because the holders of judicial office are identified with the interests of justice they may
forget their common human frailties and fallibilities. There have sometimes been martinets upon
the bench as there have also been pompous wielders of authority who have used the
paraphernalia of power in support of what they called their dignity. Therefore judges must be
kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream
of criticism expressed with candour, however blunt." (Bridges v. California, 314 U.S. 252, 289)

The judges are the persons who hold the public office, they are the trustee of public faith hence
they are answerable to the public for any kind of misconduct or breach of faith. Judges must
maintain their dignity. Judges should act within their limitation to maintain the dignity and faith
of the people.

Judicial Accountability on the point of corruption in judiciary.

A Transparency International report released on Thursday says that 77 per cent of respondents in
a survey in India believe the judiciary is corrupt. According to the Global Corruption Report
2007, the perception of corruption is higher in India and Pakistan in comparison to Hong Kong,
Malaysia, Singapore and Thailand. In Pakistan, 55 per cent of the respondents said the judiciary
was corrupt. "The degree of delays and corruption has led to cynicism about the justice system.
People seek short cuts through bribery and favours, leading to more unlawful behaviour. A prime
example is the unauthorized buildings in Indian cities. Construction laws are flouted in
connivance with persons in authority," the report says.

Former Law Minister Ram Jethmalani has questioned the survey's sample size, did not agree. "I
don't think things are so bad. Compared to other segments of society, they are better. However,
he added: "Judges are not angels. They are part of the same society."

Judicial Accountability on the point of delay in justice and pendency of cases.

According to the report, as of February 2006, 33,635 cases were pending in the Supreme Court
with 26 judges; 3.34 lakh cases in high courts with 670 judges; and 2.5 crore cases in 13,204
sub-ordinate courts. "This vast backlog leads to long adjournments and prompts people to pay to
speed up the process. In 1999, it was estimated that at the current rate of disposal of cases, it
would take another 350 years for pending cases," the report states.

It also points out that the ratio of judges is abysmally low at 12-13 per one million people
compared to 107 in the United States, 75 in Canada and 51 in the United Kingdom. "If the
number of outstanding cases are assigned to the current number of judges, caseloads would be
1,294 per Supreme Court judge, 4,987 per high court judge and 1,916 per lower court judge."
The report recommends judicial reforms including an independent judicial appointments body,
higher salaries for judges, limited impunity to actions relating to judicial duties and transparency
in the functioning of judicial organisations. This petition is to seek redressal for crores of Indian
citizens who are routinely denied justice because of its delayed and therefore, ineffective
dispensation. It is to restore to them their fundamental and constitutional rights guaranteed under
Articles 21, 14, 19 and the Preamble, and to enforce the constitutional obligations of State under
Article 39A of the Constitution of India.

Judicial Accountability on the point of Appointment, Investigations and Removal

The method of appointment of judges in India is criticized many times as it is not open to public
scrutiny and lacks accountability and transparency. The impeachment provision in the
Constitution for dealing with judicial misbehaviour is impractical and unworkable. The past year
has also seen the eruption of a large number of judicial scandals. The Justice Sabharwal case was
followed by the Ghaziabad provident fund scam, involving more than 30 judges, including 10
from the higher Courts. Then came the Chandigarh case, where Rs. 15 lacks in cash were
delivered by the clerk of the Additional Advocate General of Haryana to the residence of a High
Court Judge. This was apparently meant for some other judge and was mistakenly delivered to
another. The CBI is still investigating both these cases. Then there was the case of Justice
Soumitra Sen of Calcutta who was found by a Committee of 3 judges to have misappropriated
large sums of money, which he received as a court receiver. The Chief Justice has recommended
his impeachment more than 6 months ago, but nothing has moved on that. Removal of Justice
P.D. Dinakaran has brought to the surface the vexed problem of the arbitrary and totally
unsatisfactory manner of selecting and appointing judges as well as the unresolved problem of
dealing with complaints of misconduct and corruption against judges.

Article 124(4) of the Constitution provides for the removal of a judge only on the ground of
proved misbehaviour or incapacity. The process of impeachment is cumbersome and the result
uncertain. Effective alternative measures are necessary because in a democracy governed by the
rule of law under a written Constitution the Judiciary has been assigned the role of a sentinel on
the qui vive to protect the fundamental rights and to hold even the scales of justice between the
citizen and the state. As the Supreme Court has said. "Judicial office is essentially public trust.
Society is, therefore, entitled to expect that a judge must be a man of high integrity, honesty and
required to have moral vigour, ethical firmness and impervious to corrupt or viral influences."

Hundreds of years ago, Francis Bacon, in his essay on Judicature"emphasized that "the place of
justice is a hallowed place, and therefore not only the Bench, but the foot pace and precincts and
purpose thereof ought to be preserved without scandal and corruption. But such is the irony that
Bacon disgraced himself by indulging in acts of bribery and favouritism at the far end of his
career. This highlights the complexities and the sensitivities in the matter of effective,
implementation of judicial honesty

Under Article 121 of the Constitution, the conduct of a judge cannot be debated in the
Parliament. There is a separate procedure for impeachment; this is with the intention to secure
the independence of the judiciary. An unelected judiciary which is not accountable to anyone
except its own temperament has taken over significant powers of Indian Governance. India is a
democracy and it has to be and should be governed by elected representatives and not merely
judges, amicus curiae or committees and commissions that is accountable to the Supreme Court.
There is need to enact a law which deals with the judicial accountability.

Recommendations for the improvement of standard and Accountability

The judiciary is the fiduciary of people's justice and has accountability to the country for
scrupulously equal judicial process. Following are some suggestion for restoration of the faith.

1. Judges need to be more responsive.

2. They must be subjected to a judicial review.
3. They are obliged by the law to give reasons for decisions, i.e., it must be speaking order
which complied with the mandate of Article 14.
4. They must follow a code of conduct.
5. There must be regular inspections.
6. High court judges are now drawn from either the Bar or subordinate judiciary. Firstly, an
Indian Judicial Service (IJS) should be created. Judges may then be appointed through
nation-wide competitive examination. These officials could form the backbone of the
subordinate judiciary at the level of District Judges.
7. Most of the High Court Judges can then be drawn from this cadre of competent District
Judges.
8. There should be periodic training programs for judicial officers by practitioners, lawyers
and senior judicial officers. Secondly, the proposed National Judicial Commission (NJC)
should have the powers not only to recommend appointments, but also to remove judges
in higher courts.
9. Presently there is no supervisory jurisdiction of Supreme Court on the High court to
prevent the misuse of their power except in appeal by quashing the judgment, So
 Parliament should empower the Supreme Court to ask the explanation from a High court
judge when it found that he had exercised his power illegally.

Need to implement the suggestions of The Law Commission of India, Chaired by Justice Dr.
Justice AR. Lakshmanan, in its report no. 230 focuses on REFORMS IN THE JUDICIARY

Law in accordance with justice in accordance with law-

Equivalent theories

In legal literature, one of the essential features of law is often called justice. V.S. Nersesiants
generally does not see the law outside of justice. In his opinion, only the law is fair. He notes,
“What expresses the law, corresponds to the law and follows the law is just. To act with justice
means to act lawfully, according to the universal and equal requirements of law”. His position is
justified by the fact that in the context of the natural-legal definition, justice is traditionally
understood as retribution of the equal for the equal .

Meanwhile, recognition of the principle of justice as a universal essential feature of the law is
problematic due to the fact that: 1) the subject of legal regulation is much broader than the scope
of justice in the law; 2) there is a number of legal relations that do not meet the requirements of
justice. The law, according to which equal is given for the equal, clearly reveals itself only in the
talion (“an eye for an eye, a tooth for a tooth”).

However, at the later stages of legal development, such an understanding of justice was found to
be inaccurate and was replaced by the principle of “equivalence”. The replacement took place
Why the in the simplest and historically first economic relationship of exchange. The participants
in the exchange had no need to enter into a legal relation so that the existing thing could be
exchanged for another such thing, because only under this condition the principle of “equal for
the equal” is preserved.

Other motives form the basis of the exchange – to obtain the ownership of a thing that the
subject does not have, but recognizes it as vitally necessary and, in order to satisfy this need, is
ready to give an equivalent but different thing. A canvas is exchanged for grain, a tool of labour
– for jewellery. In any case, different things can be objects of the exchange and by virtue of this;
the exchange can only be equivalent, but not equal for equal. In this case, equivalence may have
certain fluctuations in one direction or another, the subject may be wrong in estimating the use
value of the acquired thing, may be placed in such conditions that an equivalent exchange is
impossible for the objective reasons, as it is in the case of hiring workforce by a capitalist, an
entrepreneur.
The relations that people enter into in the process of social production of material and spiritual
benefits constitute a considerable, if not the greater, part of public relations regulated by the law.
All such relations oriented to obtaining a socially useful result are determined by the specifics of
the created material benefit, by the ways and methods of its creation, the requirements of
economic efficiency, public and environmental safety, but remain neutral with respect to any
ideological assessments, including assessments of their fair distribution.

Firstly, these are the technical-production (technological) relations associated with production of
any material benefits; secondly, the relations that arise and exist in the process of conducting
educational activities, medical assistance, transportation and other services; thirdly, the
procedural relations in the sphere of activity of the law-making bodies, as well as the court and
other law enforcement bodies. The process of production of material benefits carried out by a
group of people (sometimes a very significant one) is focused on obtaining a certain result and,
due to the specialization and cooperation of production, requires a high degree of co-ordination
of the actions of employees. It is required to preliminary determine the sequence of technological
procedures, the appropriate raw materials and other material resources, to select and arrange
personnel, etc., to carry out packaging and shipment of finished products in a timely manner.
Such complex and harmonious work is achieved, among other things, thanks to the system of
normative legal acts (regulations on the operating procedure of structural subdivisions, job
descriptions, various kinds of schedules, regulations on reporting procedures, etc.).

The regulatory prescriptions aimed at the final result of the activity contained in these acts can be
efficient or inefficient, economic or uneconomic, consistent or contradictory, complete or
incomplete, whatsoever, but the criterion of justice is not applicable to them. Because in the
technical-production processes, there are no relations of equalization, distribution or rewarding,
which fall under the criteria of justice. The above-said, of course, does not apply to the industrial
economic relations (relations of ownership of tools and means of production, exchange,
employer-employee relations, etc.), where, as noted earlier, the above criterion operates in full
force and without any exceptions. A significant part of normative legal acts regulating the
process of organization and implementation of education and training in general and professional
educational institutions (curricula, methods, education plans, state standards, regulations
determining the organization order of classes, intermediate,final certification of students, etc.)
pursues the goal of ensuring the planned and purposeful activity in the transfer of knowledge and
skills and, accordingly, cannot be estimated from the position of justice or injustice. The
educational, as well as the technical and production activity is also devoid of any sort of
distributive relations.

The educational process does not recognize the privileges and prohibitions, since the main
principle of education is its common availability. All classes provided for by the state
educational standard, curriculum, are oriented to everyone and are accessible to all students
without any exception. Legal relations between a medical worker and a person undergoing
treatment and receiving other medical services cannot be recognized as fair or unfair.
 Provision of preventive, therapeutic and diagnostic, rehabilitation, prosthetic-orthopaedic and
other medical assistance is carried out in order to recover or strengthen health. It is possible to
achieve these goals to the extent to which the medical care that is being provided is capable of
combating the disease, and, if possible, destroying the factors that destabilize human health. In
this activity carried out in accordance with the current methods of medical care, regimens for
taking medications and medical procedures, the correct diagnosis, the features of the course of
illness, the psychological condition of patients, their willingness to fight the disease that are
purely objective factors, are crucial. If the professional activity in the field of medical care is free
from any assessments in the justice-injustice criteria, then the relations with regard to the
provision of medical care are a kind of distributive relations and, therefore, can be considered
from such positions.

In particular, it is possible to talk about the fair or unfair rules for obtaining medicines by
various social groups, the rules for reception of the population by qualified specialists, the
provision of medical care by leading clinics and hospitals. Many, if not all, procedural relations
remain neutral with respect to the principle of justice. For example, is it possible to assess the
fairness or unfairness of the witness’s call to the investigator, the participation of witnesses in the
inspection of the scene of the incident, the rules that fix the forms of procedural documents, the
procedure for carrying out individual actions to collect and evaluate evidence? The procedural
rules focused on the achievement of a certain legally significant result, which is to establish the
truth in a criminal case, all the circumstances necessary to make a reasonable and lawful verdict,
provide for the rights and obligations, the implementation of which would ensure such a result.
The logic of collecting and evaluating evidence in a case dictates both the set of procedures
necessary for establishing the truth in the case and the system of rights and obligations that the
entities participating in these procedures should have. Simultaneously, a certain part of legal
relations arises and develops not in accordance with the principles of social justice, but in spite
of it.

State coercion, being a necessary condition for legal regulation, within certain limits, allows such
methods of ensuring the force of law, the protection of a violated right that do not fit with the
criteria of justice and morality. This, for example, is a widespread cultivation in accordance with
the Federal Law “On Operative-Investigative Activities” by the police, state security of
operational search activities with the participation of informants on a paid or public basis. In this
case, the state even makes a sacrifice of the constitutional right of an individual to honour and
dignity, since it encourages and develops a secret whistle-blowing, in which an informer can
accuse another person before the state authorities of shady ventures he did not commit, including
crimes. But this measure is involuntary, since it is impossible to conduct a successful fight
against such evil as a crime without operational-search activity. The tasks of combating crime
are subject to such not entirely just and moral measures as body search, pat-down, seizure of
personal correspondence, etc.
Not all the norms of the civil law are successively consistent with the principle of justice. State
coercion associated with the restoration of the violated rights of the owner includes a number of
measures that do not harmonize well with the modern understanding of justice.

Although the current civil legislation does not have the barbarous right to compensate for the
missing debt by seizing a part of the debtor’s body, nevertheless, it clearly and consistently
defends the rights of the owner allowing, in the process of protecting this right, the application of
rather harsh and not entirely friendly measures based on justice and mutual assistance. In
particular, the legislation allows withdrawing from the bankrupt of all of its material and
monetary resources, depriving of real estate, bank deposits and other property. In view of the
above circumstances,

we must either recognize the rules of law regulated without regard to the principle of justice as
non-legal, or justice – as a non-universal and non-essential feature of law. Since it is not possible
to throw out a large part of legal rules outside the law for the sake of the theory of natural law,
the inconsistent theory of law has to be brought into line with objective reality, and the principle
of justice has to be recognized as a specific feature of the rules of law that governs only
distributive relations.

In any way this principle cannot apply to the entire system of law, a significant part of
which is neutral to it, and some part of rules related to the sphere of the state coercion
contradicts it. Meanwhile, in all legal relations, in which the principle of justice turns out to
be useless and inoperative, such an essential principle of law as equivalence is successfully
and fruitfully applied.

The material or spiritual benefit acquired by each participant in a legal relation appears as an
equivalent payment for the fulfilled legal obligation and differs from the benefit alienated in
favour of the other participant only by a consumer value. The subject is entitled to receive from
the other participant in a legal relation approximately as much as it gave to it itself. The
conformity of the value of the material or spiritual benefit received by the subject of the legal
relation to the costs that it incurred in the process of fulfilling a legal obligation in the same legal
relation, is understood as equivalence. It is this property that distinguishes the law from other
ways of interaction of subjects based on force, deception or delusion, when one participant of the
relation receives incommensurably more than it gives to another. As it was shown earlier, the
law may also be unfair. However, it cannot contradict the principle of equivalence under any
conditions. Each participant in a legal relation receives according to the costs incurred, so not
only it loses anything, but, on the contrary, acquires something, adds to what it had before. The
law does not recognize another way to ensure the interested interaction of two or more persons
without any violence over their will. Legal violence differs from political violence and state
arbitrariness by the fact that the attractive force of the material or spiritual benefit replaces the
action of external force in it. Violence over a person is fulfilled by his own need, an irresistible
desire to have what he does not have yet. A person most often enters into a legal relation purely
on a voluntary basis and consciously, since this is the path for him that is most acceptable and
effective. Doing something equivalent in the other person’s favour can satisfy his need for a
certain benefit, which he sees as vital. Hence the equivalence principle receives another
meaning, as the equivalence of the material or spiritual benefits received by each
participant in a legal relation. It is not difficult to notice that the above definition does not
contradict the previously given definition of equivalence as the compliance of a value of the
material or spiritual benefit obtained by a subject of a legal relation to its costs as an obligated
party in the same relation. This is the same relation, but given in different aspects, since the
subject of evaluation, comparison –benefits obtained by subjects of a legal relation – remains
unchanged.

In the first definition, equivalence characterizes correlation of a result and the action with respect
to the same subject of a legal relation, whereas in the second case – correlation of the results
achieved by each participant in a legal relation. But since each participant in a legal relation
receives only as much as it has reproduced and implemented in favour of the other, in order to
assess the legal nature of the relation it is quite sufficient to establish the equivalence of the
benefits of what one participant has received from the other. A relation can be recognized as
legal if each of its participants has received benefits equivalent to the alienated ones. At first
glance the concept of “equivalence” largely coincides with the concept of “equality”.

Both characterize something identical, which can be inherent in different subjects, objects, and
relations. But there is a fundamental difference between them. Equality characterizes the identity
of objects, phenomena and goods by any one or several of the inherent quantitative or qualitative
properties, features. Citizens have equal political, social, economic rights enshrined in the
Universal Declaration of Human Rights or the country’s current constitution.

The rules of law have the same logical structure. The bodies can have equal weight, and the
distances – equal length, and so on. Equivalence also characterizes equality, but it is equality of
the inherently unequal. Persons who have the same legal status and focus on the same objects
can only compete with each other, but in no way participate in the same relation. It is, for
example, sellers of the same goods, buyers standing in a queue, journalists who came to a press
conference with a famous person, etc. A legal relation is entered by persons, provided that they
have different goals, different legal statuses and, accordingly, different objects. In a legal
relationship, everyone get what they do not have – for this they actually enter into a legal relation
and give what is less important, less valuable for them in this situation.

According to the Russian saying, they “get this for that”. Nobody will enter into a legal relation
in order to acquire what they already have. The dissimilarity of objects, for the sake of
possession of which persons enter into a legal relation, generates a significant discrepancy in
their rights and obligations. The rights of the seller cannot in any way coincide with the rights of
the buyer and the rights of the consignee – with the rights of the carrier of its things.
The coincidence of subjective rights and legal obligations of participants of a legal relation in
one means the termination of any obligations. However, if subjects of a legal relation have
different rights and obligations, claim to different objects of a legal relation, then how can you
make sure that the relation remains within the legal boundaries and does not represent a typical
case of trickery of one subject by another or obtaining high profits not due to the exchange value
of the goods, but due to the inability of another person to correctly examine the quality of the
purchased goods or rendered services. Understanding of how subjects of legal relations can
determine the equivalence of their –qualitatively different actions is a fundamental problem of
the legal science and the legal practice. Not only the general ideas about the equivalence of rights
and obligations in the relevant legal relation are important, but also the criteria that help to
accurately and indisputably establish the equivalence of actions of the obligated party with the
subjective law of the other party in the legal relation, and vice versa. Consequently, the necessary
condition for following the principle of equivalence is the search for the basis, by which the
qualitatively or quantitatively different material, spiritual benefits, services or other social values
can be considered equivalent. Such basis is something third in the form of a natural or artificially
created scale of measurements and therefore is determined by the agreement of the parties and
the current legislation or through applying some generally recognized scale, equivalent.

Under modern conditions, the most common equivalent in legal relations is money, thanks to
which it is possible to establish the equivalence of rights and obligations in relations associated
with the distribution of the produced goods, the provision of services, the realization of legal
responsibility in the form of the duty to pay a fine, to compensate the cost of the harm caused.
The same equivalent is also used in labour relations associated with the hiring of labour force,
the fulfilment of tax obligations to the state, and the assessment of moral harm.

However money is not the only legal equivalent. Thus, high labour merits are adequately
assessed with the help of a developed system of orders and medals, honorary titles, state prizes,
while the public danger of crimes and the identity of a person who committed it – through a
system of punishments applied to the perpetrators. The absence of a scale that makes it possible
to make precise measurements of the equivalence of objects of legal relations has the most
negative impact on the implementation of the relevant legal rules in specific relations, creates
significant difficulties in determining the equality of their participants and, ultimately, creates
difficult conflicts between them. In modern legislation having a long history of its development,
the problem of the equivalent measurement of objects of the corresponding legal relations, as a
rule, has already received a proper theoretical and practical solution and is not as relevant as at
the initial stages of the formation of law, but, nevertheless, is still topical in the legal science and
practice.

This is facilitated, first of all, by the practice of strengthening of the principle of equivalence in
legislation without taking into account the specifics of the subject of the legal regulation. The
equivalence manifests itself most obviously in the sphere of private law. In the sphere of public
law, especially in legal relations based on the principles of imperativeness, the equivalence is
less pronounced, but, nevertheless, it exists losing a commercial mercantile nature of a private
interest and rises to the level of the highest legal and moral values – the defence of the
Motherland, the preservation of the national culture, its development in the name of progress and
prosperity of the society and each of its members. A centuries-old history of the class society
convincingly demonstrates that the triad – a person, a state and a society – exists and interacts
not in the name of a certain member, but because none of the members of the triad can function
and successfully develop outside this system, the interdependence on its other components.
Russian jurists, rightly emphasizing the importance and necessity of the constitutional
recognition of a person, a personality, his rights and freedoms as the highest social value, still
sometimes absolutize him believing that the contradictions arising between the society and an
individual “should be resolved, as a rule, in favour of the person’s interests in order to realize his
rights and freedoms”. Meanwhile, the recognition by the Art. 2 of the Constitution of the Russian
Federation of a personality as the highest social value cannot be regarded as evidence of the
unconditional and comprehensive priority of the individual’s right and freedoms over the society
and the state. The essence of the Art. 2 of the RF Constitution is to protect an individual from
arbitrary interference in his life by other individuals and the state. “The idea of “inalienable
rights” is directed against the state as such”, I.A. Pokrovskii wrote on the eve of the October
Revolution, – Self-affirmation of an individual reaches its culmination point in the legal sense
here. Once a mute sheep in a human herd now claims for the role of an equal power with the
state with the right of sovereignty in some of its own territory” (Pokrovskii, 1998, pp. 309-310).
In order to approve a person in his rights, the Constitution of the Russian Federation imposes on
the state a threefold duty: to recognize, respect and effectively protect the rights and freedoms of
a person and a citizen. But the individual freedom of a personality understood in this way does
not absolve it from the duty to contribute with its owns direct actions to the consolidation and
development of society and the state as total entities, in the sphere of which and due to which a
personality can be free and active. And again, the Constitution of the Russian Federation has a
number of rules that impose specific duties on a person, the conscientious fulfilment of which is
a necessary condition for the functioning of the state and society. At the same time, an individual
has to compound his personal interests with the interests of the society and the state, to perform
actions that are far from being realized by everyone in their universality and necessity.

A personality has a number of obligations in favour of society and the state, for without their
conscientious fulfilment, the existence of neither society, nor the state is possible. The whole
ensures its unity and organic integrity by subjugating all its parts, demanding from them
coordinated and strictly defined actions aimed at preserving and developing the whole. The
society as a total whole can maintain itself and function as a whole insofar as it manages to
ensure strict compliance by all its members with their constitutional and other legal obligations
in favour of the society and the state. The state is not able to reliably protect the country, the
population from the encroachment of any foreign aggressor, if it does not have a modern,
combat-ready army. All social rights of an individual requiring a state material support will
remain only a declaration, if the state cannot or does not allocate sufficient material and financial
resources for these purposes.

The bodies for the protection of law and order and the fight against crime will not be able to
fulfil their tasks without reliance on active assistance of the population, including their faithful
fulfilment of their duties as witnesses or experts. Conscientious fulfilment of constitutional
duties by all citizens, therefore, is a guarantee of effective performance of the state and
preservation of the society as a total whole. In order for the state and society to fully and actually
fulfil their obligations towards an individual, it is necessary that a person take the most active
and direct part in the affairs of the state and the society, conscientiously fulfil duties assigned to
him. Therefore, the constitutional and other legal duties of an individual committed in favour of
the state in the public-legal relations of “power-subordination” are nothing more than an
equivalent payment for their rights and the guarantee of their real action. Thus, in order to ensure
the correct assessments of the legal nature of legislation and other legal phenomena, first of all, it
is necessary to use the universal essential feature of law – the equivalence.

The principle of justice that has no universal significance can be used as an additional criterion in
the evaluation of distributive and some other relations. The substitution of the principle of
equivalence by the principle of justice, which takes place in the modern legal literature and legal
practice, creates noticeable subjectivism in the assessments of existence, gives appearance of the
law to the phenomena and processes, in fact, representing its transformed form, the anti-law.

What does it Mean?

 Judicial Activism

o Judicial activism signifies the proactive role of the Judiciary in protecting the rights of
citizens.
o The practice of Judicial Activism first originated and developed in the USA.
o In India, the Supreme Court and the High courts are vested with the power to examine
the constitutionality of any law, and if such a law is found to be inconsistent with the
provisions of the constitution, the court can declare the law as unconstitutional.
o It has to be noted that the subordinate courts do not have the power to review
constitutionality of laws.
o Origin:
  The term judicial activism was coined by historian Arthur Schlesinger, Jr. in
1947.
 The foundation of Judicial Activism in India was laid down by Justice V.R
Krishna Iyer, Justice P.N Bhagwati, Justice [Link] Reddy, and Justice
D.A Desai.
o Criticism:

 Judicial Activism has led to a controversy in regard to the supremacy between

Parliament and Supreme Courts.
 It can disturb the delicate principle of separation of powers and checks and
balances.
 Judicial Restraint:

o Judicial Restraint is the antithesis of Judicial Activism.

o Judicial Restraint is a theory of judicial interpretation that encourages judges to limit
the exercise of their own power.
o In short, the courts should interpret the law and not intervene in policy-making.
o Judges should always try to decide cases on the basis of:

 The original intent of those who wrote the constitution.

 Precedent – past decisions in earlier cases.
 Also, the court should leave policy making to others.
o Here, courts “restrain” themselves from setting new policies with their decisions.
 Judicial Overreach:

o When Judicial Activism goes overboard, and becomes Judicial Adventurism, it is

referred to as Judicial Overreach.
o In simpler terms, it is when the judiciary starts interfering with the proper
functioning of the legislative or executive organs of the government.
o Judicial Overreach is undesirable in a democracy as it breaches the principle of
separation of powers.
o In view of this criticism, the judiciary has argued that it has only stepped when the
legislature or the executive has failed in its own functions.
Why is it required?
 Judicial Activism:

o Judicial activism has arisen mainly due to:

 The failure of the executive and legislatures to act.

 Since there is a doubt that the legislature and executive have failed to deliver
the desired results.
 It occurs because the entire system has been plagued by ineffectiveness and
inactiveness.
 The violation of basic human rights has also led to judicial activism.
 Due to the misuse and abuse of some of the provisions of the
Constitution, judicial activism has gained importance.
o Necessity of Judicial Activism:
 To understand the increased role of the judiciary, it is important to know the
causes that led to the judiciary playing an active role.
 There was rampant corruption in other organs of government.
 The executive became callous in its work and failed to deliver results
required.
 Parliament became ignorant of its legislative duties.
 The principles of democracy were continuously degrading.
 Public Interest Litigations brought forward the urgency of public issues.
 In such a scenario, the judiciary was forced to play an active role. It was possible only
through an institution like judiciary which is vested with powers to correct the various
wrongs in society. In order to prevent the compromise of democracy, the Supreme Court
and High Courts took the responsibility of solving these problems.

o For example, in G. Satyanarayana vs Eastern Power Distribution Company

(2004), Justice Gajendragadkar ruled that a mandatory enquiry should be conducted if
a worker is dismissed on the ground of misconduct, and be provided with an
opportunity to defend himself. This judgement added regulations to labour law which
was ignored by legislation.
o Similarly, Vishaka vs State of Rajasthan (1997) is an important case that reminds
the need of Judicial activism. Here, the SC laid down guidelines that ought to be
followed in all workplaces to ensure proper treatment of women. It further stated that
these guidelines should be treated as a law until Parliament makes a legislation for
enforcement of gender equality.
 Some other famous cases of Judicial Activism include -

o Kesavananda Bharati case (1973): The apex court of India declared that the
executive had no right to intercede and tamper with the basic structure of the
constitution.
o Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to
the Supreme Court addressing the custodial violence of women prisoners in Jail. The
court treated that letter as a writ petition and took cognizance of that matter.
o I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967): The Supreme Court
declared that Fundamental Rights enshrined in Part 3 are immune and cannot be
amended by the legislative assembly.
o Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric
conditions of the undertrial prisoners reflected through the articles published in the
newspaper. Under article 21 of the Indian Constitution, the apex court accepted it and
held that the right to speedy trial is a fundamental right.
o A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court rejected the
argument that to deprive a person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but also that such procedure must be
fair, reasonable and just.
 Judicial Restraint:

o Judicial restraint helps in preserving a balance among the three branches of

government, judiciary, executive, and legislative.
o To uphold the law established by the government in the legislature.
o To show solemn respect for the separation of governmental problems.
o To allow the legislature and the executive to follow their duties by not reaching in
their arena of work.
o To mark a respect for the democratic form of government by leaving the policy on
policymakers.
o Trends in Judicial Restraint:

 S.R. Bommai v Union of India (1994) is a famous example often stated to

show restraint practiced by Judiciary. The judgement stated that in certain cases
the judicial review is not possible as the matter is political. According to the
court, the power of article 356 was a political question, thus refusing judicial
review. The court stated that if norms of judiciary are applied on matters of
 politics, then it would be entering the political domain and the court shall avoid
it.
 Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court
refused to direct the Municipal Corporation on the issue of assigning
responsibility for cleanliness of Delhi and stated that it can only assign
authorities to carry out duty that is assigned as per law.
 Judicial Overreach:

o The direct effect of legislative and executive negligence or inability is "judicial

overreach".
o Weak and injudicious results, not only in the making of laws, but also in their
application.
o The Indian judiciary has been criticized by many legal scholars, lawyers and judges
themselves, for playing an exceedingly activist role and overreaching.
o Impact of Judicial Overreach:
o

 Since the legislature is lagging behind in its function, the judiciary tends to
Overreach from its function causing a conflict between legislature and judiciary.
The clear impacts from such an Overreach of Judiciary are as follows:

 There is a threat to the doctrine of separation of powers which undermines

the spirit of the constitution. There is a lack of harmony between
legislature and judiciary and an impression on the public of inaction by the
legislature.
 In certain scenarios like that of environmental, ethical, political, expert
knowledge is required which the judiciary might not possess. If it renders
judgement while having no experience in these domains, then it not only
undermines expert knowledge but also can prove harmful to the country.
 Judicial Overreach can lead to an expression of disregard by the judiciary
in the elective representation. This can decrease the faith of the public in
the institution of democracy.
o Hence, It is an obligation on the part of courts to remain under their jurisdiction and
uphold the principle of separation of powers. The Supreme court has itself reminded
other courts, in 2007, to practise Judicial restraint. It stated "Judges must know their
limits and must try not to run the government. They must have modesty and humility,
and not behave like emperors." Further, it said, "In the name of judicial activism,
 judges cannot cross their limits and try to take over states which belong to another
organ of the state".
o Examples of Judicial Overreach:
o

 A famous case of Judicial Overreach is censorship of the Film Jolly LLB II.
The case was filed as a writ petition, and alleged that the film portrayed the legal
profession as a joke, making it an act of contempt and provocation. The Bombay
High Court appointed a three person committee to watch the movie and report
on it. This was viewed as unnecessary, as the Board Of Film Certification
already exists and is vested with the power to censor. On the basis of the report
of the committee, four scenes were removed by the directors. It was seen as
violative of Article 19(2), as it imposed restriction on freedom of speech and
expression.
 On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at
retail shops, restaurants, bars within 500m of any national or state highway.
There was no evidence presented before the court that demonstrated a relation of
ban on liquor on highways with the number of deaths. This judgement also
caused loss of revenue to state governments and loss of employment. The case
was seen as an Overreach because the matter was administrative, requiring
executive knowledge.
How is it Manifested?

 Judicial Activism:


o Through Judicial Review

 Judicial review is the doctrine under which legislative and executive actions are
subject to review by the judiciary.
 Judicial review is an example of check and balances in a modern governmental
system.
 Judicial review is adopted in the Constitution of India from the Constitution of
the United States of America.
 It gives power to the Supreme Court to examine the constitutionality of any
law and if such a law is found to be inconsistent with the provisions of the
Constitution, the Court can declare the law as unconstitutional.
o Through Public Interest Litigation:
  Public interest litigation means a suit filed in a court of law for the protection of
public interest.
 Judicial activism in India acquired importance due to public interest litigation. It
is not defined in any statute or act.
 In India, PIL initially was resorted to towards improving the lot of
the disadvantaged sections of the society who due to poverty and ignorance
were not in a position to seek justice from the courts.
 Justices P.N. Bhagwati and V.R. Krishna Ayer has played a key role in
promoting this avenue of approaching the apex court of the country.
o Through Constitutional Interpretation:

 Constitutional interpretation comprehends the methods or strategies available to

people attempting to resolve disputes about the meaning or application of the
Constitution.
 The possible sources for interpretation include the text of the Constitution, its
"original history," including the general social and political context.
o Through Access to international statutes for ensuring constitutional rights:

 The court refers to various international statutes in its judgements.

 This is done by the apex courts to ensure the citizens of their rights.
 International Law is referred to by Supreme Court's judgments in many cases.
Example: Recently, SC reaffirmed the rights of disabled person to live with
dignity in Jeeja Ghosh v. Union of India. The court underlined the Vienna
Convention on the law of treaties, 1963 which requires India's internal
legislation to comply with international commitments.
 Judicial Restraint:

o Through referring to the original intent of those who wrote the constitution:

 Judges look to the original intent of the writers of the Constitution.

 Judges refer to the intent of the legislatures that wrote the law and the text of the
law in making decisions.
 Any changes to the original Constitution language can only be made by
constitutional amendments.
 o Through Precedent:

 Precedent means past decisions in earlier cases.

 Judicially-restrained judges respect stare-decisis, the principle of upholding
established precedent handed down by past judges.
o Through leaving the legislature and executive to decide policies:

 Judicial Restraint is practised when the court leaves policy making to others.
 The courts generally refer to interpretations of the constitution by the Parliament
or any other constitutional body.
How do they Differ?

 Judicial Activism VS Judicial Restraint:

o On basis of Meaning:

 Judicial activism: interpretation of the constitution to advocate contemporary

values and conditions.
 Judicial restraint: limiting the powers of the judges to strike down a law.
o On basis of Goals:
o

 Judicial restraint: the judges and the court encourage reviewing an existing
law rather than modifying the existing law, whereas in judicial activism: it gives
the power to overrule certain acts or judgments.
o On the basis of Intent:

 Judicial activism judges should look beyond the original intent of the framers.
 In Judicial restraint, Judges should look to the original intent of the writers of the
Constitution.
o On basis of Power:
  In Judicial activism, the judges are required to use their power to correct any
injustice especially when the other constitutional bodies are not acting.
 Judicial restraint is limiting the powers of the judges to strike down a law.
o On basis of their Role:
o

 Judicial activism has a great role in formulating social policies on issues like
protection of the rights of an individual, civil rights, public morality, and
political unfairness.
 Judicial restraint helps in preserving a balance among the three branches of
government, judiciary, executive, and legislative.
Conclusion

 In India, Judiciary has played an active role through its activism, especially through PIL.
This has restored the rights of disadvantaged sections of the society.
 The Supreme Courts and the High Courts have worked in favour of progressive social
policies and citizens hold a high regard for the institution of judiciary.
 However, in a democracy, it is important to maintain the principle of separation of powers
and uphold the legitimacy of the three organs of government.

o It can be possible only when the executive and legislature are attentive and functional.
o At the same time, the Judiciary should be cautious of stepping into spheres of activity
that does not belong to it.