KAMKUS COLLEGE OF LAW

LEGISLATIVE OUGHTS, INTERPRETATION AND JUDICIAL PROCESS

LL.M. IST SEM
(PAPER CODE: L-1003)

BENTHAM’S THEORY OF UTILITY AND ITS RELEVANCE

Analytical positivistic school started with the writings of Jeremy Bentham (1748-1832) and was
latter carried to its logical end by his disciple John Austin. Bentham’s classical work, “The Limits
of Jurisprudence Defined” written in 1782 and published in 1945 revealed how ardent Bentham
was in conceiving the ends of law and mechanics of legal system. Bentham was utilitarian to the
core, advocated codification of law and rejected judge-made law. His approach to sovereignty was
similar to Austin; his definition of law was wide enough to cover subordinate legislation and
administrative regulations; his analysis of rights and duties puts forward in embryo what was once
thought to be a discovery of the twentieth century.

Bentham starts from the assumption that nature has placed mankind under two sovereign
masters, pleasure and pain. ‘It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the other hand the standard of right and wrong, on the other the
chain of causes and effects, are fastened to their throne’’. The good or evil of an action, according
to Bentham should be measured by the quantity of pain or pleasure resulting from it. Bentham’s
principles of utility meant, ‘that principle which approves or disapproves of every action
whatsoever, according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question: or, what is the same thing in other words, to
promote or to oppose that happiness”.

Bentham talks of the four sanctions or sources of pain and pleasure. Considered Separately, they
may be termed that physical, the political, the moral and the religious, The pleasures and Pains
belonging to each of them are capable of giving binding force to any law or rule of conduct and
allow them may be termed sanctions.

We can easily understand Bentham’s theory under following heads:-

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Bentham’s utilitarian principles led to the growth and development of fully fledged jurisprudence
Of political, social and economic utilitarianism in the nineteenth and twentieth centuries. His Faith
Laissez –Faire in economics Led him to believe that if every one looked after himself ,The general
good, that is greatest happiness to the greatest number would be secured.

Bentham’s quest for legislative reform led to the notion of welfare state and removed lots of
inequalities which had hampered the growth of democracy in England.

According to Bentham, the jurisprudence should be divided into two:

a. The expositorial jurisprudence (what the law is)

[Link] censorial jurisprudence(what the law ought to be) which was helpful in evolvinga
terminology for unraveling the maze of concepts of law.

Bentam’s theories involuntarily introduces natural law principles uner the disguise of pleasure and
pain,which is denied.

Bentham was averse to acknowledging natural rights of men,although,his yearning for private
property,equality,andsecurity are the out come of natural rights.

Bentham overemphasized the power of the legislator and underestimated the individual discretion
and flexibility of the judges in the application of law.

Bentham’s contribution to analytical jurisprudence although immense, yet is couched in semantics

difficult to decipher.

Bentham’s overarching definition of law covers all laws, be they legislative, executive, judicial or
administrative,howeverthe force behind these laws is obscure.

Bentham’s Relevancy in Today’s World:-

[Link] Theory of Sovereignity shows that in the present era also there shall be a political
community. Which shall have a body of persons acting to represent the will of the people. That is
we can find the relevancy with respect to democratic form of govt and also there is concept of
participatory democracy.

2 .Later on Bentham Theory was carried forward by the various analytical jurist to give the concept
of sovereignity and also law made by sovereign authority. Which is an essential feature of laws
made by legislature of country.

[Link] Bentham rejected the idea of natural rights. He left the scope so ,as to include value
such as Liberty, Quality, or property.
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[Link] from murder, imprisonment or any disposition from any property are all results of not
only right to life or liberty or property but also due to the security that one gets from legally enforce
duty. that results in greatest benefit for greater good.

CONCLUSION:-

Thus, the theories of Bentham have been adopted by various countries to sit their own political,
cultural, economical and social conditions and has been modified from time to time to suit the
changing needs of society.

RELATIONSHIP BETWEEN LAW AND PUBLIC OPINION

There is a close relationship between law and public opinion. Laws, in Democracy, are
deep-rooted in public opinion. In these days of Democracy the most important source of law is
legislature, a body of people’s representatives. This body represents the public will.

It is true, that the people do not frame the laws directly but we should not forget that they elect their
representatives to the legislature. Their representative should not, and do not go against the will of
the people who are the electors.

When the people or electors want certain laws to be replaced or modifiers, their representatives do
the needful. It is quite clear in this way that there is a close affinity between public opinion and law
because laws represent the will of the people. Laws are supposed by public opinion.

Laws which are supported by public opinion are not effective and are hardly obeyed by the people.
For example, after Chinese aggression on India in 1962, the Government of India framed two laws:
Compulsory Deposit Scheme and Gold Control Rules. Unfortunately, these laws were not
supported by public opinion.

As a result, people carried out demonstrations against these laws. In the end, the Government of
India ad to modify these laws. This makes it very clear that in Democracy only those laws are
framed which are supported by public opinion. If such laws are not framed people reserve the right
to carry out peaceful demonstrations.

Thus, it is quite clear that there is a close affinity between law and public opinion. Before arriving
at any conclusion it would be better for us to ponder over the term public opinion. By public
opinion, we mean an opinion held by people for the common welfare. “In any community of men
that which has assured the character of public opinion is the Who opinion of all its members but
only of those persons, few or many who are led to think and to form judgment regarding matters of
general interest”.
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Thus social good and common welfare of the people are the primary considerations of public
opinion and law reflects them. According to P S. Mathur, “Law should be not firmly rooted in
public opinion but should be a little ahead of it”.

INTRODUCTION, MEANING AND NATURE OF INTERPRETATION

Introduction

Enacted laws, especially the modern acts and rules, are drafted by legal experts and it could be
expected that the language used will leave little room for interpretation or construction. But the
experience of all those who have to bear and share the task of application of the law has been
different.

Interpretation means the art of finding out the true sense of an enactment by giving the words of the
enactment their natural and ordinary meaning. It is the process of ascertaining the true meaning of
the words used in a statute. The Court is not expected to interpret arbitrarily and therefore there
have been certain principles which have evolved out of the continuous exercise by the Courts.
These principles are sometimes called ‘rules of interpretation’.

The object of interpretation of statutes is to determine the intention of the legislature conveyed
expressly or impliedly in the language used. As stated by SALMOND, “by interpretation or
construction is meant, the process by which the courts seek to ascertain the meaning of the
legislature through the medium of authoritative forms in which it is expressed.”

Elaborate rules of interpretation were evolved even at a very early stage of Hindu civilization and
culture. The rules given by ‘Jaimini’, the author of Mimamsat Sutras, originally meant for srutis
were employed for the interpretation of Smritis also.

In the process of interpretation, several aids are used. They may be statutory or non-statutory.
Statutory aids may be illustrated by the General Clauses Act, 1897 and by specific definitions
contained in individuals Acts whereas non-statutory aids are illustrated by common law rules of
interpretation (including certain presumptions relating to interpretation) and also by case-laws
relating to the interpretation of statutes.

MEANING AND DEFINITION OF INTERPRETATION

According to Salmond interpretation or construction is the process by which the courts seek to
ascertain the meaning of the legislature through the medium of authoritative forms in which it is

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expressed.” It has been said that there is a distinction between the two expressions. As explained
by Cooley: “Interpretation differs from construction in the sense that the former is the art of
finding out the true sense of any form of words; i.e. the sense that their author intended to convey.
Construction on the other hand, is the drawing of conclusions, respecting the subjects that lie
beyond the direct expression of the text. This distinction has been widely criticized.

Interpretation of statute is the process of ascertaining the true meaning of the words used in a
statute. When the language of the statute is clear, there is no need for the rules of interpretation.
But, in certain cases, more than one meaning may be derived from the same word or sentence. It is,
therefore, necessary to interpret the statute to find out the real intention of the statute.

Interpretation of Statutes is required for two basic reasons:-

Legislative Language – Legislative language may be complicated for a layman, and hence may
require interpretation; and

Legislative Intent – The intention of the legislature or Legislative intent assimilates two aspects: a.
the concept of ‘meaning’, i.e., what the word means; and b. the concept of ‘purpose’ and ‘object’
or the ‘reason’ or ‘spirit’ pervading through the statute.

Some Important points to be taken care of in the context of interpreting Statutes:

• Intention of the legislature.

• Statute must be read as a whole in its Context.
• Statute should be Construed so as to make it Effective and Workable – if statutory
provision is ambiguous and capable of various constructions, then that construction must
be adopted which will give meaning and effect to the other provisions of the enactment
rather than that which will give none.
• If meaning is plain, effect must be given to it irrespective of consequences.
• The process of construction combines both the literal and purposive approaches. The
purposive construction rule highlights that you should shift from literal construction when
it leads to absurdity.

NATURE AND SCOPE

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Necessity of interpretation would arise only where the language of a statutory provision is
ambiguous, not clear or where two views are possible or where the provision gives a different
meaning defeating the object of the statute.

If the language is clear and unambiguous, no need of interpretation would arise. In this regard, a
Constitution Bench of five Judges of the Supreme Court in R.S. Nayak v A.R. Antulay, has held:

“… If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to
give effect to the natural meaning of the words used in the provision. The question of construction
arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would
be self-defeating.”

Again Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay, has followed the
same principle and observed:

“Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of
the legislature is clearly conveyed, there is no scope for court to take upon itself the task of
amending or altering the statutory provisions.”

The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention of the
Legislature – not to control that intention or to confine it within the limits, which the Judge may
deem reasonable or expedient.

The correct is one that best harmonizes the words with the object of the statute. As stated by Iyer J.
“to be literal in meaning is to see the skin and miss the soul. The judicial key of construction is the
composite perception of the deha and the dehi of the provision.”

According to Blackstone the fairest and rational method for interpreting a statute is by exploring
the intention of the Legislature through the most natural and probable signs which are ‘either the
words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the
law’.

RULES OF INTERPRETATION
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Rule of Literal Interpretation

In construing Statutes the cardinal rule is to construe its provisions literally and grammatically
giving the words their ordinary and natural meaning. This rule is also known as the Plain meaning
rule. The first and foremost step in the course of interpretation is to examine the language and the
literal meaning of the statute. The words in an enactment have their own natural effect and the
construction of an act depends on its wording. There should be no additions or substitution of
words in the construction of statutes and in its interpretation. The primary rule is to interpret words
as they are. It should be taken into note that the rule can be applied only when the meanings of the
words are clear i.e. words should be simple so that the language is plain and only one meaning can
be derived out of the statute.

In Municipal board v. State transport authority, Rajasthan, the location of a bus stand was changed
by the Regional Transport Authority. An application could be moved within 30 days of receipt of
order of regional transport authority according to section 64 A of the Motor vehicles Act, 1939.
The application was moved after 30 days on the contention that statute must be read as “30 days
from the knowledge of the order”. The Supreme Court held that literal interpretation must be made
and hence rejected the application as invalid.

Lord Atkinson stated, ‘In the construction of statutes their words must be interpreted in their
ordinary grammatical sense unless there be something in the context or in the object of the statute
in which they occur or in the circumstances in which they are used, to show that they were used in
a special sense different from their ordinary grammatical sense.’

Meaning

To avoid ambiguity, legislatures often include “definitions” sections within a statute, which
explicitly define the most important terms used in that statute. But some statutes omit a definitions
section entirely, or (more commonly) fail to define a particular term. The plain meaning rule
attempts to guide courts faced with litigation that turns on the meaning of a term not defined by the
statute, or on that of a word found within a definition itself.

If the words are clear, they must be applied, even though the intention of the legislator may have
been different or the result is harsh or undesirable. The literal rule is what the law says instead of
what the law means.

A literal construction would not be denied only because the consequences to comply with the same
may lead to a penalty. The courts should not be overzealous in searching for ambiguities or
obscurities in words which are plain. (Tata Consultancy Services v. State of A.P)

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The literal rule may be understood subject to the following conditions –

• Statute may itself provide a special meaning for a term, which is usually to be found in the
interpretation section.

• Technical words are given ordinary technical meaning if the statute has not specified any other.

• Words will not be inserted by implication.

• Words undergo shifts in meaning in course of time.

• It should always be remembered that words acquire significance from their context.

When it is said that words are to be understood first in their natural ordinary and popular sense, it is
meant that words must be ascribed that natural, ordinary or popular meaning which they have in
relation to the subject matter with reference to which and the context in which they have been used
in the Statute. In the statement of the rule, the epithets ‘natural, “ordinary”, “literal”,
“grammatical” and “popular” are employed almost interchangeably to convey the same idea.

For determination of the meaning of any word or phrase in a statute, the first question is what is the
natural and ordinary meaning of that word or phrase in its context in the statute but when that
natural or ordinary meaning indicates such result which cannot be opposed to having been the
intention of the legislature, then to look for other meaning of the word or phrase which may then
convey the true intention of the legislature.

Another important point regarding the rule of literal construction is that exact meaning is preferred
to loose meaning in an Act of Parliament. In the case of Pritipal Singh v. Union of India, it was
held that there is a presumption that the words are used in an Act of Parliament correctly and
exactly and not loosely and inexactly.

Rationale for this Rule

Proponents of the plain meaning rule claim that it prevents courts from taking sides in legislative
or political issues. They also point out that ordinary people and lawyers do not have extensive
access to secondary sources. In probate law the rule is also favored because the testator is typically
not around to indicate what interpretation of a will is appropriate. Therefore, it is argued, extrinsic
evidence should not be allowed to vary the words used by the testator or their meaning. It can help
to provide for consistency in interpretation.

Criticism of this rule

Opponents of the plain meaning rule claim that the rule rests on the erroneous assumption that
words have a fixed meaning. In fact, words are imprecise, leading justices to impose their own
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prejudices to determine the meaning of a statute. However, since little else is offered as an
alternative discretion-confining theory, plain meaning survives.

This is the oldest of the rules of construction and is still used today, primarily because judges may
not legislate. As there is always the danger that a particular interpretation may be the equivalent of
making law, some judges prefer to adhere to the law’s literal wording.

THE MISCHIEF RULE

The mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s
intention. Originating from a 16th-century case (Heydon’s case) in the United Kingdom, its main
aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and
what ruling would effectively implement this remedy. When the material words are capable of
bearing two or more constructions the most firmly established rule or construction of such words
“of all statutes, in general, be they penal or beneficial, restrictive or enlarging of the common law
is the rule of Heydon’s case. The rules laid down, in this case, are also known as Purposive
Construction or Mischief Rule.

The mischief rule is a certain rule that judges can apply in statutory interpretation in order to
discover Parliament’s intention. It essentially asks the question: By creating an Act of Parliament
what was the “mischief” that the previous law did not cover?

Heydon’s case

This was set out in Heydon’s Case where it was stated that there were four points to be taken into
consideration when interpreting a statute:

• What was the common law before the making of the act?

• What was the “mischief and defect” for which the common law did not provide?

• What remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth?

• What is the true reason for the remedy?

The office of all the judges is always to make such construction as shall suppress the mischief, and
advance the remedy, and to suppress subtle inventions and evasions for continuance of the
mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to
the true intent of the makers of the Act, pro bono publico.

The application of this rule gives the judge more discretion than the literal and the golden rule as it
allows him to effectively decide on Parliament’s intent. It can be argued that this undermines
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Parliament’s supremacy and is undemocratic as it takes lawmaking decisions away from the
legislature.

Use of this Rule

This rule of construction is of narrower application than the golden rule or the plain meaning rule,
in that it can only be used to interpret a statute and, strictly speaking, only when the statute was
passed to remedy a defect in the common law. Legislative intent is determined by examining
secondary sources, such as committee reports, treatises, law review articles and corresponding
statutes. This rule has often been used to resolve ambiguities in cases in which the literal rule
cannot be applied.

In the case of Thomson v. Lord Clan Morris, Lord Lindley M.R. stated that in interpreting any
statutory enactment regard should not only be paid to the words used, but also to the history of the
Act and the reasons which lead to its being passed.

In the case of CIT v. Sundaradevi, it was held by the Apex Court that unless there is an ambiguity,
it would not be open to the Court to depart from the normal rule of construction which is that the
intention of the legislature should be primarily to gather from the words which are used. It is only
when the words used are ambiguous that they would stand to be examined and considered on
surrounding circumstances and constitutionally proposed practices.

The Supreme Court in Bengal Immunity Co. v. State of Bihar, applied the mischief rule in
construction of Article 286 of the Constitution of India. After referring to the state of law
prevailing in the province prior to the constitution as also to the chaos and confusion that was
brought about in inter-state trade and commerce by indiscriminate exercise of taxing powers by the
different Provincial Legislatures founded on the theory of territorial nexus, Chief Justice S.R. Das,
stated “It was to cure this mischief of multiple taxation and to preserve the free flow of interstate
trade or commerce in the Union of India regarded as one economic unit without any provincial
barrier that the constitution maker adopted Article 286 in the constitution”.

A principle to be valued must be capable of wider application than the mischief which gave it
existence. These are designed to approach immortality as nearly as human institutions can
approach it’. Mischief Rule is applicable where language is capable of more than one meaning. It
is the duty of the Court to make such construction of a statue which shall suppress the mischief and
advance the remedy.

Advantages

• The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the
Golden or Literal rules.

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• It usually avoids unjust or absurd results in sentencing.

Disadvantages

• It is considered to be out of date as it has been in use since the 16th century, when common law
was the primary source of law and parliamentary supremacy was not established.

• It gives too much power to the unelected judiciary which is argued to be undemocratic.

• In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore
well qualified in what mischief the act was meant to remedy.

• It can make the law uncertain.

GOLDEN RULE OF INTERPRETATION

The Golden rule, or British rule, is a form of statutory interpretation that allows a judge to depart
from a word’s normal meaning in order to avoid an absurd result.

It is a compromise between the plain meaning (or literal) rule and the mischief rule. Like the plain
meaning rule, it gives the words of a statute their plain, ordinary meaning. However, when this
may lead to an irrational result that is unlikely to be the legislature’s intention, the judge can depart
from this meaning. In the case of homographs, where a word can have more than one meaning, the
judge can choose the preferred meaning; if the word only has one meaning, but applying this
would lead to a bad decision, the judge can apply a completely different meaning.

This rule may be used in two ways. It is applied most frequently in a narrow sense where there is
some ambiguity or absurdity in the words themselves.

For example, imagine there may be a sign saying “Do not use lifts in case of fire.” Under the literal
interpretation of this sign, people must never use the lifts, in case there is a fire. However, this
would be an absurd result, as the intention of the person who made the sign is obviously to prevent
people from using the lifts only if there is currently a fire nearby.

The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to
principles of public policy, even where words have only one meaning. Example: The facts of a
case are; a son murdered his mother and committed suicide. The courts were required to rule on
who then inherited the estate, the mother’s family, or the son’s descendants. There was never a
question of the son profiting from his crime, but as the outcome would have been binding on lower
courts in the future, the court found in favour of the mother’s family.

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RULE OF HARMONIOUS CONSTRUCTION

When there is a conflict between two or more statues or two or more parts of a statute then the rule
of harmonious construction needs to be adopted. The rule follows a very simple premise that every
statute has a purpose and intent as per law and should be read as a whole. The interpretation
consistent of all the provisions of the statute should be adopted. In the case in which it shall be
impossible to harmonize both the provisions, the court’s decision regarding the provision shall
prevail.

The rule of harmonious construction is the thumb rule to the interpretation of any statute. An
interpretation which makes the enactment a consistent whole should be the aim of the Courts and a
construction which avoids inconsistency or repugnancy between the various sections or parts of
the statute should be adopted. The Courts should avoid “a head on clash”, in the words of the Apex
Court, between the different parts of an enactment and conflict between the various provisions
should be sought to be harmonized. The normal presumption should be consistency and it should
not be assumed that what is given with one hand by the legislature is sought to be taken away by
the other. The rule of harmonious construction has been tersely explained by the Supreme Court
thus, “When there are, in an enactment two provisions which cannot be reconciled with each other,
they should be so interpreted, that if possible, the effect should be given to both”. A construction
which makes one portion of the enactment a dead letter should be avoided since harmonization is
not equivalent to destruction.

It is a settled rule that an interpretation which results in hardship, injustice, inconvenience or

anomaly should be avoided and that which supports the sense of justice should be adopted. The
Court leans in favour of an interpretation which conforms to justice and fair play and prevents
injustice.

When there are two provisions in a statute, which are in apparent conflict with each other, they
should be interpreted such that effect can be given to both and that construction which renders
either of them inoperative and useless should not be adopted except in the last resort.

This principle is illustrated in the case of Raj Krishna v. Binod. In this case, two provisions of
Representation of People Act, 1951, which were in apparent conflict, were brought forth. Section
33 (2) says that a Government Servant can nominate or second a person in election but section
123(8) says that a Government Servant cannot assist any candidate in election except by casting
his vote. The Supreme Court observed that both these provisions should be harmoniously
interpreted and held that a Government Servant was entitled to nominate or second a candidate
seeking election in State Legislative assembly. This harmony can only be achieved if Section
123(8) is interpreted as giving the govt. servant the right to vote as well as to nominate or second a
candidate and forbidding him to assist the candidate in any other manner.
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The important aspects of this principle are –

• The courts must avoid a head on clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them.

• The provision of one section cannot be used to defeat the provision contained in another unless
the court, despite all its effort, is unable to find a way to reconcile their differences.

• When it is impossible to completely reconcile the differences in contradictory provisions, the

courts must interpret them in such as way so that effect is given to both the provisions as much as
possible.

• Courts must also keep in mind that interpretation that reduces one provision to a useless number
or a dead lumbar, is not harmonious construction.

• To harmonize is not to destroy any statutory provision or to render it loose.

SUBSIDIARY RULES OF LITERAL INTERPRETATIONA.

EJUSDEM GENERIS

INTRODUCTION

The term “ejusdem generis” means “of the same kind”. Where a series of words employed in of a
provision constitute a particular class or category or genus and they are followed by general word,
then the meaning of such general word is limited to that class or catory only To explain it further, if
a number of enumerations belonging to same genus are used in a provision, the meaning of general
word following them gets restricted to that genus itself. For example in the expression “bread,
butter, jam etc” a series of words are used which are edibles. Therefore they constitute one genus.
These words are followed by the word “etc.” which is a general word. The word “etc.” may carry
any meaning but restricted to edibles only. For example, “etc.” may mean “biscuit” or “cake” since
they are also edibles but it cannot mean “sari”. Thus a general word, which would otherwise have
borne vast meaning, has been restricted to that meaning only which fall in the same class or genus.
This rule is called ejusdem generis.

MEANING & DEFINITION

According to BYREN’S Law Dictionary

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 “The rule of ejusdem generis is a rule of legal construction that general words following
enumeration of Particulars are to have their generality limited by reference to the preceding
Particular enumeration and to be construed as including only all other articles of the like nature and
quality.”

According to COLLICK

“It is the general rule of construction that where a broad class is spoken of and general words
follow, the class first mentioned is to be taken as the most comprehensive and the general words
treated as referring to matters ejusdem generis with such class.”

According to LORD HALSBURY

“There are rules of construction now firmly established as part of law. One is that words, however
general, may be limited in respect to the subject matter in relation to which they are used. The other
is that the general words may be restricted to the same generis as the specific words that precede
them.”

In State of Bombay v. Au Gulshan

CHANDRASHEKHAR AIYAR, J., observed that it is essential for application of ejusdem

generis rule that enumerated things before the general words must constitute a category or a genus
or family which admits of a number of species or members.

In C.I.T v. McDowell and Co. Ltd.

It was held that when particular words pertaining to a class, category or genus are followed by
general words, the general words are construed as limited to things of the same kind as those
specified.

This rule, in fact, is only the application of a common-sense rule of language. If a man tells his wife
to go out and buy butter, milk, eggs and anything else she needs, then the wife cannot purchase a
furniture item under the garb of the general words “anything else she needs”.

CONDITIONS FOR APPLICATION OF EJUSDEM GENERIS

The rule of ejusdem generis can be applied only when following conditions are fulfilled:

(a) There should be a series of enumerations.

(b) All enumerations must constitute a genus or category or class.

(c) The general word must have been used after that series of enumerations forming one genus.

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(d) The rule shall have no application if there is only one enumeration because single species shall
not constitute a genus.

(e) The rule cannot be applied where several enumerations of specified things preceding general
word belong to different categories.

APPLICATION OF THE RULE OF EJUSDEM GENERIS

This rule has been effectively applied in following cases.

In A. G. v. Brown

Section 43 of Customs (Consolidations) Act, 1876, was w11t the words “arms, ammunition or gun
powder or any other goods” were employed. It was held that the words “any other goods” refer to
goods similar to arms and ammunition or gun powder.

In Brownsea Haven Properties v. Poole Corporation

The general words “in any case” occurring in the language “in all times of public processions,
rejoicings or illuminations and in any case when the streets are liable to be obstructed” were
construed by applying the rule of ejusdem generis. It was held that “in any case” is confined to
category or genus of which public processions, rejoicings and illuminations were specific
instances.

In LIC of India v. Retired LIC Officers Assn.

The expression “other matters connected therewith or incidental thereto” was preceded by
expressions “scales of pay”, “dearness allowance” and “other allowances”. It was held that the
expression covers only those aspects which have direct nexus with preceding expressions. Hence,
gratuity not covered by the said expression.

Cases where the Court refused to apply the Rule of Ejusdem Generis

If the preceding words do not form a genus, the rule of ejusdem generis has no application. The
courts have categorically refused to apply the rule of ejusdem generis in cases where the required
conditions were not fulfilled.
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Some examples are cited below

In National Associations of Local Govt. Officers v. Bolton Corporation

The definition of “workman” provided in Industrial Courts Act, 1919 was construed. According to
the definition, “workman means any person who entered into or works under a contract with an
employer whether the contract be by way of manual labour, clerical work or otherwise”. It was
held that use of words “or otherwise” does not bring into play ejusdem generis because manual
labour and clerical work do not belong to a single limited genus.

In Ishwar Singh Bagga v. State of Rajasthan,

Section 129 of Motor Vehicles Act was in question which empowers any police officer authorized
in this behalf or other person authorized in this behalf by State Government to detain and seize the
vehicles used without certification of registration or permit. It was held that the expression “other
person” cannot be construed by ejusdem generis because the mention of single species “police
officer” does not constitute a genus.

In Allen v. Emmerson,

Section 33 of Barrow-in-Furness Corporation Extension Act, 1872 was in question which provides
“No theatre or other place of public entertainment shall be opened or used unless the same shall
first have been licensed”. Court rejected the contention that the words “other place of public
entertainment” should be read as subject to ejusdem generis; because of single class.

In Grasim Industries Ltd. v. Collector of Customs,

It was held that the rule of ejusdem generis has to be applied with care and caution. This is not an
inviolable rule of law, but it is only permissible inference, in the absence of any indication to the
contrary.

REDDENDO SINGULA SINGULIS

Introduction

Where there are general words of description following enumeration of particular things, such
general words are to be construed distributively. For example, “I devise and bequeath all my real

16
and personal property to “A”. In this expression, following the rule of Reddendo Singula Singulis,
the word “devise” shall be applied to “real property” whereas the word “bequeath” shall be applied
to “personal property”.

For better understanding, we may take few other examples. In expression “if any one shall draw or
load any sword or gun”, the word “draw” would refer to “sword” and the word “load” would refer
to “gun”. Similarly in the expression “I will eat and drink bread and milk”, the word “eat” shall
apply to “bread” and the word “drink” shall apply to “milk”.

Application of the Rule of Reddendo Singula Singulis

In Bishop v. Deakin,1 Section 59 (1) of Local Government Act, 1933 was interpreted following
the rule of Reddendo Singula Singulis. This section provides that a person shall be disqualified for
being elected or being a member of a local authority if he has within five years before the day of
election or since his election been convicted of any offence and ordered to be imprisoned for a
period of not less than three months without option of fine, The language involves two matters,
viz., (i) disqualification for election; and (ii) disqualification for being member after election. The
language also provides for two penalties, viz., (i) conviction within five years before the day of
election and (ii) conviction since his election. It was held that conviction prior to election is
disqualification for election alone and not for continuing to be a member.

INTERNAL AIDS TO CONSTRUCTION

[Laws enacted by the legislatures are interpreted by the judiciary. There are internal aids to
construction as well as external aids.]

Introduction

Laws enacted by the legislatures are interpreted by the judiciary. Enacted laws, specially the
modern Acts and Rules, are drafted by legal experts and it could be expected that the language will
leave little room for interpretation or construction. But the experience of all who have to hear and
share the task of application of law, has been different. It is quite often observed that courts are
busy unfolding the meaning of ambiguous words and expressions and resolving in consistencies.
The age old process of the application of the enacted laws has led to formulation of certain rules of
interpretation or construction.

The object of interpretation of statutes is to determine the intention of the legislature conveyed
expressly or impliedly in the language used. In Santi swarup Sarkar v. pradeep kumar sarkar, the
Supreme Court held that if two interpretations are possible of the same statute, the one which
validates the statute must be preferred.
17
Broadly speaking, there are two kinds of interpretation:

1. Literal Interpretation

2. Logical Interpretation

Internal Aids of Interpretation are:-

A. Long Title

It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid to its
construction. The long title which often precedes the preamble must be distinguished with the
short title; the former taken along with the preamble or even in its absence is a good guide
regarding the object, scope or purpose of the Act, whereas the latter 341 being only an abbreviation
for purposes of reference is not a useful aid to construction.

B. Preamble

The preamble of a statute like the long title is a part of the Act and is an admissible aid to
construction. Although not an enacting part, the preamble is expected to express the scope, object
and purpose of the Act more comprehensively than the long title. It may recite the ground and
cause of making the statute, the evils sought to be remedied or the doubts which may be intended
to be settled. In the words of SIR JOHN NICHOLL : It is to the preamble more specifically that we
are to look for the reason or spirit of every statute, rehearsing this, as it ordinarily does, the evils
sought to be remedied, or the doubts purported to be removed by the statute, and so evidencing, in
the best and most satisfactory manner, the object or intention of the Legislature in making or
passing the statute itself.

C. Preamble to Constitution

The Preamble of the Constitution like the Preamble of any statute furnishes the key to open the
mind of the makers of the Constitution more so because the Constituent Assembly took great pains
in formulating it so that it may reflect the essential features and basic objectives of the
Constitution. The Preamble is a part of the Constitution The Preamble embodies the fundamentals
underlining the structure of the Constitution. It was adopted by the Constituent Assembly after the
entire Constitution has been adopted.

The true functions of the Preamble is to expound the nature and extend and application of the
powers actually confirmed by the Constitution and not substantially to create them. The
Constitution, including the Preamble, must be read as a whole and in case of doubt interpreted
consistent with its basic structure to promote the great objectives stated in the preamble. But the

18
Preamble can neither be regarded as the source of any substantive power nor as a source of any
prohibition or limitation.

D. Headings

The view is now settled that the Headings or Titles prefixed to sections or group of sections can be
referred to in construing an Act of the Legislature. But conflicting opinions have been expressed
on the question as to what weight should be attached to the headings. A Heading•, according to
one view, is to be regarded as giving the key to the interpretation of the clauses ranged under it,
unless the wording is inconsistent with such interpretation; and so the headings might be treated as
preambles to the provisions following them.•

E. Marginal Notes

In the older statutes marginal notes were not inserted by the legislature and hence were not part of
the statute and could not be referred to for the purpose of construing the statute. If they are also
enacted by the legislature they can be referred to for the purpose of interpretation. In the case of the
Indian Constitution, the marginal notes have been enacted by the Constituent Assembly and hence
they may be referred to for interpreting the Articles of the Constitution. If the words used in the
enactment are clear and unambiguous, the marginal note cannot control the meaning, but in case of
ambiguity or doubt, the marginal note may be referred to.

F. Punctuation

Punctuation means to mark with points and to make points with usual stops. It is the art of dividing
sentences by point or mark. Is the Court entitled to use punctuation also while interpreting the
statutes? Punctuation is considered as a minor element in the construction of statutes.

G. Illustrations

Illustrations appended to a section from part of the statute and although forming no part of the
section, are of relevance and value in the construction of the text of the section and they should not
be readily rejected as repugnant to the section. It would be the very last resort of construction to
make this assumption. The great usefulness of the Illustrations which have, although not part of the
sections, been expressly furnished by the Legislature as helpful in the working and application of
the statute, should not be thus impaired.

H. Definition Section

These do not take away the ordinary and natural meaning of the words, but as used: (i) to extend
the meaning of a word to include or cover something, which would not normally be covered or
included; and (ii) to interpret ambiguous words and words which are not plain or clear.
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I. Proviso

The proper function of a proviso is to except and to deal with a case which would otherwise fall
within the general language of the main enactment and its effect is confined to that case. It is a
qualification of the preceding enactment which is expressed in terms too general to be quite
accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to
what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule.
Normally, a proviso does not travel beyond the provision to which it is a proviso. It craves out an
exception to the main provision to which it has been enacted as a proviso and to no other.

J. Explanation

The object of an Explanation to a statutory provision is –

1. to explanation the meaning and intendment of the Act itself,

2. where there is any obscurity or vagueness in the main enactment, to clarify the same so as to
make it consistent with the dominant object which it seems to subserve,

3. to provide an additional support to the dominant object of the Act in order to make it meaningful
and purposeful,

4. an Explanation cannot in any way interfere with or change the enactment or any part thereof but
where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the
mischief and advance the object of the Act it can help or assist the court in interpreting the true
purport and intendment of the enactment, and

5. it cannot, however, take away a statutory right with which any person under a statute has been
clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the
same.

EXTERNAL AIDS TO CONSTRUCTION

Introduction

When internal aids are not adequate, court has to take recourse to External aids. External Aids may
be parliamentary material, historical background, reports of a committee or a commission, official
statement, dictionary meanings, foreign decisions, etc. In Prabhakar Rao and others v. State of
A.P. and others, O. Chennappa, Reddy J. has observed : Where internal aids are not forthcoming,
20
we can always have recourse to external aids to discover the object of the legislation. External aids
are not ruled out. This is now a well settled principle of modern statutory construction.•

A. Parliamentary History, Historical Facts and Surrounding Circumstances

Historical setting cannot be used as an aid if the words are plain and clear. If the wordings are
ambiguous, the historical setting may be considered in order to arrive at the proper construction.
Historical setting covers parliamentary history, historical facts, statement of objects and reasons,
report of expert committees. Recently, the Supreme Court in R. Chaudhuri v State of Punjab and
others, has stated that it is a settled position that debates in the Constituent Assembly may be relied
upon as an aid to interpret a Constitutional provision because it is the function of the Court to find
out the intention of the framers of the Constitution.

B. Social, Political and Economic Developments and Scientific Inventions

A Statute must be interpreted to include circumstances or situations which were unknown or did
not exist at the time of enactment of the statute. Any relevant changes in the social conditions and
technology should be given due weightage. Courts should take into account all these developments
while construing statutory provisions.

In P. Gupta v. Union of India, it was stated – The interpretation of every statutory provision must
keep pace with changing concepts and values and it must, to the extent to which its language
permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to
accord with the requirement of the fast changing society which is undergoing rapid social and
economic transformation

C. Reference to Other Statutes:

In case where two Acts have to be read together, then each part of every act has to be construed as
if contained in one composite Act. However, if there is some clear discrepancy then the latter Act
would modify the earlier. Where a single provision of one Act has to be read or added in another,
then it has to be read in the sense in which it was originally construed in the first Act. In this way
the whole of the first Act can be mentioned or referred in the second Act even though only a
provision of the first one was adopted.

In case where an old Act has been repealed, it loses its operative force. Nevertheless, such a
repealed part may still be taken into account for construing the unrepealed part. For the purpose of
interpretation or construction of a statutory provision, courts can refer to or can take help of other
statutes. It is also known as statutory aids. The General Clauses Act, 1897 is an example of
statutory aid. The application of this rule of construction has the merit of avoiding any

21
contradiction between a series of statutes dealing with the same subject, it allows the use of an
earlier statute to throw light on the meaning of a phrase used in a later statute in the same context.

On the same logic when words in an earlier statute have received an authoritative exposition by a
superior court, use of same words in similar context in a later statute will give rise to a presumption
that the legislature intends that the same interpretation should be followed for construction of those
words in the later statute.

D. Dictionaries

When a word is not defined in the statute itself, it is permissible to refer to dictionaries to find out
the general sense in which that word is understood in common parlance. However, in the selection
of one out of the various meanings of a word, regard must always be had to the scheme, context
and legislative history.

E. Judicial Decisions:

When judicial pronouncements are been taken as reference it should be taken into note that the
decisions referred are Indian, if they are foreign it should be ensured that such a foreign country
follows the same system of jurisprudence as ours and that these decisions have been taken in the
ground of the same law as ours. These foreign decisions have persuasive value only and are not
binding on Indian courts and where guidance is available from binding Indian decisions; reference
to foreign decisions is of no use.

F. Other Materials

Similarly, Supreme Court used information available on internet for the purpose of interpretation
of statutory provision in Ramlal v. State of Rajasthan. Courts also refer passages and materials
from text books and articles and papers published in the journals. These external aids are very
useful tools not only for the proper and correct interpretation or construction of statutory provision,
but also for understanding the object of the statute, the mischief sought to be remedied by it,
circumstances in which it was enacted and many other relevant matters. In the absence of the
admissibility of these external aids, sometimes court may not be in a position to do justice in a
case.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

Introduction

22
The letters of the constitution are fairly static and not very easy to change but the laws enacted by
the legislature reflect the current state of people and are very dynamic. To ensure that the new laws
are consistent with the basic structure of the constitution, the constitution must be interpreted in a
broad and liberal manner giving effect to all its parts and the presumption must be that no conflict
or repugnancy was intended by its framers. Applying the same logic, the provisions relating to
fundamental rights have been interpreted broadly and liberally in favor of the subject. Similarly,
various legislative entries mentioned in the Union, State, and Concurrent list have been construed
liberally and widely. There are basically three types of interpretation of the constitution.

• Historical interpretation

Ambiguities and uncertainties while interpreting the constitutional provisions can be clarified by
referring to earlier interpretative decisions.

• Contemporary interpretation

The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.

• Harmonious Construction

It is a cardinal rule of construction that when there are in a statute two provisions which are in such
conflict with each other, that both of them cannot stand together, they should possibly be so
interpreted that effect can be given to both. And that a construction which renders either of them
inoperative and useless should not be adopted except in the last resort.

The Supreme Court held in Re Kerala Education Bill[1] that in deciding the fundamental rights,
the court must consider the directive principles and adopt the principle of harmonious construction
so two possibilities are given effect as much as possible by striking a balance.

In Qureshi v. State of Bihar, The Supreme Court held that while the state should implement the
directive principles, it should be done in such a way so as not to violate the fundamental rights.

In Bhatia International v Bulk trading SA, it was held that if more than one interpretation is
possible for a statute, then the court has to choose the interpretation which depicts the intention of
the legislature.

Interpretation of the preamble of the Constitution

The preamble cannot override the provisions of the constitution. In Re Berubari[4], the Supreme
Court held that the Preamble was not a part of the constitution and therefore it could not be
regarded as a source of any substantive power.

23
In Keshavananda Bharati’s case, the Supreme Court rejected the above view and held the preamble
to be a part of the constitution. The constitution must be read in the light of the preamble. The
preamble could be used for the amendment power of the parliament under Art.368 but basic
elements cannot be amended.

The 42nd Amendment has inserted the words “Secularism, Socialism, and Integrity” in the
preamble.

General rules of interpretation of the Constitution

1. If the words are clear and unambiguous, they must be given the full effect.

2. The constitution must be read as a whole.

3. Principles of harmonious construction must be applied.

4. The Constitution must be interpreted in a broad and literal sense.

5. The court has to infer the spirit of the Constitution from the language.

6. Internal and External aids may be used while interpreting.

7. The Constitution prevails over other statutes.

Principles of Constitutional Interpretation

The following principles have frequently been discussed by the courts while interpreting the
Constitution:

1. Principle of colourable legislation

2. Principle of pith and substance

3. Principle of eclipse

4. Principle of Severability

5. Principle of territorial nexus

6. Principle of implied powers

Principle of Colourable Legislation

The doctrine of colourability is the idea that when the legislature wants to do something that it
cannot do within the constraints of the constitution, it colours the law with a substitute purpose

24
which will still allow it to accomplish its original goal.

Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliqum” which means what
cannot be done directly cannot also be done indirectly.

The rule relates to the question of legislative competence to enact a law. Colourable Legislation
does not involve the question of bonafides or malfides. A legislative transgression may be patent,
manifest or direct or may be disguised, covert or indirect. It is also applied to the fraud of
Constitution.

In India ‘the doctrine of colourable legislation’ signifies only a limitation of the law-making power
of the legislature. It comes into picture while the legislature purporting to act within its power but
in reality, it has transgressed those powers. So the doctrine becomes applicable whenever
legislation seeks to do in an indirect manner what it cannot do directly. If the impugned legislation
falls within the competence of legislature, the question of doing something indirectly which cannot
be done directly does not arise.

In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the
Legislative competence of the Parliament and the State Legislative Assemblies by outlining the
different subjects under list I for the Union, List II for the States and List III for the both as
mentioned in the seventh schedule.

This doctrine comes into play when a legislature does not possess the power to make law upon a
particular subject but nonetheless indirectly makes one. By applying this principle the fate of the
Impugned Legislation is decided.

Principle of pith and substance

Pith means ‘true nature’ or essence of something’ and substance means ‘the most important or
essential part of something’. The basic purpose of this doctrine is to determine under which head
of power or field i.e. under which list (given in the seventh schedule) a given piece of legislation
falls.

Union & State Legislatures are supreme within their respective fields. They should not encroach/
trespass into the field reserved to the other. If a law passed by one trespass upon the field assigned
to the other—the Court by applying Pith & Substance doctrine, resolve the difficulty &declare
whether the legislature concerned was competent to make the law.

If the pith & substance of the law (i.e. the true object of the legislation) relates to a matter within
the competence of the legislature which enacted it, it should be held intra vires—though the
legislature might incidentally trespass into matters, not within its competence. The true character
25
of the legislation can be ascertained by having regard—to the enactment as a whole — to its object
– to the scope and effect of its provisions.

Case: State of Bombay v. FN Balsara

Bombay Prohibition Act, 1949 which prohibited sale & possession of liquors in the State, was
challenged on the ground that it incidentally encroached upon Imports & Exports of liquors across
custom frontier – a Central subject. It was contended that the prohibition, purchase, use,
possession, and sale of liquor will affect its import. The court held that act valid because the pith &
substance fell under Entry 8 of State List and not under Entry 41 of Union List.

Principle of eclipse

The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is
not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be
removed by a constitutional amendment to the relevant fundamental right so that eclipse vanishes
and the entire law becomes valid.

All laws in force in India before the commencement of the Constitution shall be void in so far they
are inconsistent with the provisions of the Constitution. Any law existing before the
commencement of the Constitution and inconsistent with the provision of Constitution becomes
inoperative on commencement of Constitution. But the law does not become dead. The law
remains a valid law in order to determine any question of law incurred before the commencement
of the Constitution. An existing law only becomes eclipsed to the extent it comes under the shadow
of the FR.

Case: Keshavan Madhava Menon v. The State of Bombay

In this case, the law in question was an existing law at the time when the Constitution came into
force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by
article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then
stood and consequently under article 13(1)[8] that existing law became void “to the extent of such
inconsistency”.

The court said that the law became void not in to or for all purposes or for all times or for all
persons but only “to the extent of such inconsistency”, that is to say, to the extent it became
inconsistent with the provisions of Part III which conferred the fundamental rights of the citizens.

Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate
fundamental rights upon the premise that such laws are not null and void ab initio but become
unenforceable only to the extent of such inconsistency with the fundamental rights. If any
subsequent amendment to the Constitution removes the inconsistency or the conflict of the
26
existing law with the fundamental rights, then the Eclipse vanishes and that particular law again
becomes active again.

Principle of Severability

The doctrine of severability provides that if an enactment cannot be saved by construing it

consistent with its constitutionality, it may be seen whether it can be partly saved. Article 13 of the
Constitution of India provides for Doctrine of severability which states that-

All laws in force in India before the commencement of Constitution shall be void in so far they are
inconsistent with the provisions of the Constitution.

The State shall not make any law which takes away/ shortens the rights conferred by Part III of the
Constitution i.e. Fundamental Rights. Any law made in contravention of the provisions of the
Constitution shall be void and invalid. The invalid part shall be severed and declared invalid if it is
really severable. (That is, if the part which is not severed can meaningfully exist without the
severed part.) Sometimes the valid and invalid parts of the Act are so mixed up that they cannot be
separated from each other. In such cases, the entire Act will be invalid.

Case: AK Gopalan v. State of Madras

In this case, the Supreme Court said that in case of repugnancy to the Constitution, only the
repugnant provision of the impugned Act will be void and not the whole of it, and every attempt
should be made to save as much as possible of the Act. If the omission of the invalid part will not
change the nature or the structure of the object of the legislature, it is severable. It was held that
except Section 14 all other sections of the Preventive Detention Act, 1950 were valid, and since
Section 14 could be severed from the rest of the Act, the detention of the petitioner was not illegal.

Principle of Territorial Nexus

Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by Parliament
shall be deemed to be invalid on the ground that it would have extra-territorial operation’. Thus a
legislation cannot be questioned on the ground that it has extra-territorial operation. It is
well-established that the Courts of our country must enforce the law with the machinery available
to them, and they are not entitled to question the authority of the Legislature in making a law which
is extra-territorial. The extra-territorial operation does not invalidate a law. But some nexus with
India may still be necessary in some of the cases such as those involving taxation statutes.

The Doctrine of Territorial Nexus can be invoked under the following circumstances-

• Whether a particular state has extra-territorial operation.

27
• If there is a territorial nexus between the subject- matter of the Act and the state making the law

It signifies that the object to which the law applies need not be physically located within the
territorial boundaries of the state, but must have a sufficient territorial connection with the state. A
state may levy a tax on a person, property, object or transaction not only when it is situated within
its territorial limits, but also when it has a sufficient and real territorial connection with it. Nexus
test was applied to the state legislation also

Case: Tata Iron & Steel Company v. Bihar State

The State of Bihar passed a Sales Tax Act for levy of sales tax whether the sale was concluded
within the state or outside if the goods were produced, found and manufactured in the state. The
court held there was sufficient territorial nexus and upheld the Act as valid. Whether there is
sufficient nexus between the law and the object sought to be taxed will depend upon the facts and
circumstances of a particular case.

It was pointed out that sufficiency of the territorial connection involved a consideration of two
elements- a) the connection must be real and not illusory b) the liability sought to be imposed must
be pertinent to that connection.

Principle of Implied powers

Laws which are necessary and proper for the execution of the power or incidental to such power
are called implied powers and these laws are presumed to be constitutional. In other words,
constitutional powers are granted in general terms out of which implied powers must necessarily
arise. Likewise, constitutional restraints are put in general terms out of which implied restraints
must also necessarily establish.

This is a Legal principle which states that, in general, the rights and duties of a legislative body or
organization are determined from its functions and purposes as specified in its constitution or
charter and developed in practice.

Conclusion

The Constitution is the supreme and fundamental law of our country. Since it is written in the form
of a statute, the general principles of statutory interpretation are applicable to the interpretation of
the constitution as well. It is important to note that the constitution itself endorses the general
principles of interpretation through Article 367(1), which states that unless the context otherwise
requires, the General Clauses Act, 1897 shall apply for the interpretation of this constitution as it
applies to the interpretation of an act of the legislature.

JUDICIAL PROCESS
28
Law as a means of Serving Justice

Anciently morality and religion were primary basis to govern the relationship between peoples.
And there was no need to search for a law maker to enact laws that govern social relations. It was
based on natural law that human relations were regulated. But, after a long and serious debate
between legal scholars and philosophers it is determined that there must be a human made law to
regulate human relations.

Based on this conception, law made by human beings has played an important role in the definition
and protection of certain relationships, systems and institutions and in the control of individual and
collective human behavior. Through the use of normative, directive and prescriptive rules,
supported by varying degrees of sanctions, law has been used to create a climate of social order,
the usual justification of which has been that it benefits members of society. But, the issue whether
human made laws are exact machinery to serve justice and fairness to all the society is always
questionable.

Rights and duties are usually acknowledged through laws made by human beings. But, should a
right be acknowledged and clearly indicated by law to be considered as a human right or is it
enough to simply be a human being to enjoy human rights is debatable by itself.

THE RELATIONSHIP BETWEEN LAW AND JUSTICE

After having seen the meanings and different aspects of law and justice, it would be better to assess
the relationship between law and justice. Questions such as: How are law and justice connected?
How do they interact? In what way are they distinct? and can law be considered as a means of
serving justice are assessed and analyzed. In answering this question and assessing the relationship
between law and justice it is essential to refer to some laws and cases.

The Connection and Interaction of Law and Justice

Many people believe that there is a close connection between law and justice. The main thing that
connects law and justice is the origin and foundation of law. Law is related with nature and God;
and its basement is that of justice. True justice is found in nature and nature has ordered what
human beings should do and not to do. And where human beings search and found this from the
nature include it in their law then human law is considered as holding justice and compatible with
natural order. In this respect the naturalist and positivists theory followers have their own view.
That is the natural law theory followers argue that justice is the source and basement of law.
Whereas the positivist theory followers argue that law is the source and basement of justice; and a

29
rendered justice has its source from law. One way or another it can be taken that there is
unbreakable tie between law and justice in terms of origin and foundation.

It is also widely accepted that justice is the result and effective implementation of law. Keeping in
mind that there are some exceptional situations where there is a variance between law and justice,
it is highly believed that justice is the proper implementation of law. Many people also assure the
existence of justice where the law is properly implemented and government officials and everyone
is standing for the effective and proper implementation the law. This aspect of nexus between law
and justice can also be considered as another connection.

In terms of freedom and equality John Rawls stated that a system of government, i.e. its laws,
should guarantee freedom for all and equality and accept material inequality only if it proves
useful for the others. For a law to be considered as a just law and to say that a certain law is a means
of serving justice it should primarily guarantee the freedom and equality of human beings.

THE DISTINCTION BETWEEN LAW AND JUSTICE

Legal and political theorists since the time of Plato have wrestled with the problem of whether
justice is part of law or is simply a moral judgment about law. There are no universal principles
by which justice or injustice can be defined other than the way in which the government has made
its laws. Thus, in different societies and under different authorities, justice is different. Others who
don’t like laws made by governments on the other hand argue that there is some sort of universal
natural law or justice. But looking into the current practical laws and situations of our world every
government has its own different laws that are assumed to serve justice.

Law made by the legislature (human made law) of every government has its own political,
sociological, philosophical and historical background of the society. It is particularly prepared to
solve and address problems and fulfill needs in a given society. Laws are also enacted in the
interest of the strong party. Each type of government enacts laws that are in its own interest, a
democracy democratic laws, a tyranny tyrannical ones and so on; and in enacting these laws they
make it quite plain that what is “right” for their subjects is what is in the interest of themselves, the
rulers, and if anyone deviates from this he is punished as a lawbreaker and “wrongdoer”.There are
also times where law is serving as a manipulative device to oblige a society the will of government
leaders.

The mere fact that a law is proclaimed or enacted as a law by a government does not mean that it is
just law. And there are a number of laws that contradict with natural law and justice. For example
apartheid law is a law that is against the law of nature and entitles rights based on the color of
human beings. It is totally against the law of nature and justice. In addition to this there are other
laws which clearly contradict with natural law. Since every law has its own political, sociological,

30
philosophical and historical background in a given society, it will definitely benefit and harm
different groups in a society and cannot uniformly serve justice to all the society.

Implementation of a law as it is written by government officials has also its own role in rendering
justice. In order for freedom to flourish, people need to know what the law is and need to have
confidence that officials will faithfully apply the law as it is written. If a police officer can arrest
you because you have somehow violated his sense of justice and if a judge can convict you
because she thinks that what you did was unjust, then you might be incarcerated for innocent
behavior. There would be no predictability in such a system.

Generally, there are some instances in which there exist a variance between law and justice.

MEANING OF DHARMA

Dharma is generally accepted to have been derived and supersede from the vedic concept of Rita,
which literally meant, ’the straight line’. Rita refers to the Law of Nature, it signifies moral laws,
and based on righteousness. When something is Rita it simply meant that thing is true, right and
nothing more. Dharma evolved side by side of Rita but eventually took over it as the old concept of
Rita was not able to cope and solve the issue emerging with increasing social complexities.
Dharma signifies Natural law.

Dhrama, as been said by Justice M. Rama Jois is, “Dharma is that which sustains and ensures
progress and welfare of all in this world and eternal bliss in the other world. The Dharma is
promulgated in the form of command”. Mahabhartha also contains a discussion on the issue of
defining dharma. Dharma in words of Madhavacharya is, “It is most difficult to define Dharma.
Dharma has been explained to be that which helps the upliftment of living beings. Therefore that
which ensures welfare (of living beings) is surely Dharma. The learned rishis have declared that
which sustains is Dhrama.”

Dharma is anything that is right, just and moral. Dharma aims for the welfare of state and mainly,
its people.

Origin of Dharma

Dharma originated from Vedas which are Sruti (heard knowledge) and they are the supreme
source of knowledge for humans, as the narration of what is heard from the ancient priests that is
Sruti and they contains narration on everything possible ranging from military to politics to
common people’s life. Its other sources are Smriti, which are the interpretation of Vedas and four
sages have propounded the dharmasastras and are called Smritikars. They are:

31
1. Manu

2. Yagnavalkaya

3. Brihaspati

4. Narada

The other source has been Puranas which are eighteen in number and contains information about
the creation and dynasties of god, sages and kings and detailed description of yugas. All the
sources are on the same footstep and no one has supremacy over the other.

Idea which made people adhere to the Dharma can be illustrated by one verse from
Brihadaranyaka Upnishad which is, “punyo vai punyena Karmana bhavati, Papah Papeneti”,
meaning ‘everyone becomes good by good deeds and bad by bad deeds’, in other words ‘every one
reaps what he sows’ and what’s good is defined by Dharma.

Functioning of Dharma

Dharma is sanatana, i.e. which has eternal values; one which is neither time-bound nor space
bound. The concept of Dharma is with us from time immemorial. Dharma is different from
religion; however they are commonly misinterpreted to mean the same and thence used
interchangeably. As the above said was distinguished by Justice J. Hansaria in A.S. Narayana
Deekshitulu vs State Of Andhra Pradesh & Ors by quoting Swami Rama’s book ‘A Call to
Humanity’ by the following words:

“Religion is enriched by visionary methodology and theology, whereas dharma blooms in the
realm of direct experience. Religion contributes to the changing phases of a culture; dharma
enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for
God; dharma helps one to recognize the immortal shrine in the heart.”

The supremacy of Dharma can be understood from a simple point that the King was not above
Dharma, he was governed by it, and if he didn’t than the Dharmashastrakara give right to the
public to revolt against such an unjust, arbitrary and unrighteous king or government. The treaties
of Manu, Kautilya and others contains many rights and duties of both the king and the public, and
even recognised individual rights like right to private property, personal wealth etc., which were
bound by the law for interest of society at large.

THEORIES OF JUSTICE IN WESTERN THOUGHTS

MILL
32
Let us consider a bit of Karl Marx (and his collaborator Friedrich Engels) as a quick transition
between Kant and Mill. Kant represents the very sort of bourgeois conception of justice against
which Marx and Engels protest in their call, in The Communist Manifesto, for a socialistic
revolution. Marx explains the ideal of socio-economic equality he advocates with the famous
slogan that all should be required to contribute to society to the extent of their abilities and all
should be allowed to receive from society in accordance with their needs. John Stuart Mill, a
nineteenth-century English philosopher, was aware of the call for a Communist revolution and
advocated progressive liberal reform as an alternative path to political evolution. Whereas Kant
was the first great deontologist, Mill subscribed to the already established tradition of
utilitarianism. Although earlier British thinkers (including Hobbes and Hume) were
proto-utilitarians, incorporating elements of the theory into their own worldviews, the movement,
as such, is usually thought to stem from the publication of Jeremy Bentham’s Introduction to the
Principles of Morals and Legislation in 1789. He there proposes the “principle of utility,” which
he also later calls the “greatest happiness” principle, as the desirable basis for individual and
collective decision-making: “By the principle of utility is meant that principle which approves or
disapproves of every action whatsoever, according to the tendency which it appears to have to
augment or diminish the happiness of the party whose interest is in question.” That single
sentence establishes the ultimate criterion for utilitarian reasoning and the root of a great
movement. A famous lawyer named John Austin, under whom Mill studied, wrote a book of
jurisprudence based on Bentham’s “principle of general utility.” Mill’s father, James Mill, was a
friend and disciple of Bentham and educated his only son also to be a utilitarian. Near the end of
his life, Mill observed that it was the closest thing to a religion in which his father raised him.
And, if he was not the founder of this secular religion, he clearly became its most effective
evangelist. In Utilitarianism, his own great essay in ethical theory, Mill gives his own statement
of the principle of utility (again employing a curiously religious word): “The creed which accepts
as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are
right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of
happiness.” He immediately proceeds to interpret human happiness and unhappiness (as
Bentham had done) in hedonistic terms of pleasure and pain (Utilitarianism, pp. 33-34, 329, 257).
This presents the deceptive appearance of a remarkably simple rubric for practical judgment: if
an action generates an excess of pleasure over pain, that contributes to human happiness, which is
our greatest good, making the action right; on the other hand, if an action generates an excess of
pain over pleasure, that contributes to human unhappiness, which is our greatest evil, making the
action wrong. But what is deceptive about this is the notion that we can sufficiently anticipate
future consequences to be able to predict where our actions will lead us. (Notice, also, that unlike
Kantian deontology, which makes what is right independent of good consequences, utilitarianism
makes the former a function of the latter.)

RAWLS
33
Rawls burst into prominence in 1958 with the publication of his game-changing paper, “Justice as
Fairness.” Though it was not his first important publication, it revived the social contract theory
that had been languishing in the wake of Hume’s critique and its denigration by utilitarians and
pragmatists, though it was a Kantian version of it that Rawls advocated. This led to a greatly
developed book version, A Theory of Justice, published in 1971, arguably the most important book
of American philosophy published in the second half of the last century. Rawls makes it clear that
his theory, which he calls “justice as fairness,” assumes a Kantian view of persons as “free and
equal,” morally autonomous, rational agents, who are not necessarily egoists. He also makes it
clear early on that he means to present his theory as a preferable alternative to that of utilitarians.
He asks us to imagine persons in a hypothetical “initial situation” which he calls “the original
position” (corresponding to the “state of nature” or “natural condition” of Hobbes, but clearly not
presented as any sort of historical or pre-historical fact). This is strikingly characterized by what
Rawls calls “the veil of ignorance,” a device designed to minimize the influence of selfish bias in
attempting to determine what would be just. If you must decide on what sort of society you could
commit yourself to accepting as a permanent member and were not allowed to factor in specific
knowledge about yourself—such as your gender, race, ethnic identity, level of intelligence,
physical strength, quickness and stamina, and so forth—then you would presumably exercise the
rational choice to make the society as fair for everyone as possible, lest you find yourself at the
bottom of that society for the rest of your life. In such a “purely hypothetical” situation, Rawls
believes that we would rationally adopt two basic principles of justice for our society: “the first
requires equality in the assignment of basic rights and duties, while the second holds that social
and economic inequalities, for example inequalities of wealth and authority, are just only if they
result in compensating benefits for everyone, and in particular for the least advantaged members of
society.” Here we see Rawls conceiving of justice, the primary social virtue, as requiring equal
basic liberties for all citizens and a presumption of equality even regarding socio-economic goods.
He emphasizes the point that these principles rule out as unjust the utilitarian justification of
disadvantages for some on account of greater advantages for others, since that would be rationally
unacceptable to one operating under the veil of ignorance. Like Kant, Rawls is opposed to the
teleological or consequentialist gambit of defining the right (including the just) in terms of
“maximizing the good”; he rather, like Kant, the deontologist, is committed to a “priority of the
right over the good.” Justice is not reducible to utility or pragmatic desirability. We should
notice that the first principle of justice, which requires maximum equality of rights and duties for
all members of society, is prior in “serial or lexical order” to the second, which specifies how
socio-economic inequalities can be justified

JUDICIAL PROCESS

34
 INTRODUCTION

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 a previously agreed upon set of procedures and in conformity with prescribed
rules. As an incident, or consequence, of their dispute-deciding function, those who decide make
authoritative statements of how the rules are to be applied, and these statements have a prospective
generalized impact on the behavior of many besides the immediate parties to the dispute. Hence
the judicial process is both a means of resolving disputes between identifiable and specified
persons and a process for making public policies.

Development of the concept

For centuries hundreds of writers in thousands of articles and books have tried to determine what is
the essence of the judicial or adjudicatory process, what distinguishes it from the legislative and
administrative processes. During the last several centuries this exercise in political taxonomy has
taken on special urgency and normative concerns. For under the doctrine of separation of powers it
became improper for legislatures to engage in the judicial process—issuance of bills of attainder,
for example—or for judges to assume functions that are thought to be within the scope of the
legislative process.

The classic doctrine of separation of powers divided the world of political activity into the three
familiar divisions based both on what was thought to be the behavior of political actors and on
what were thought to be the requirements for the maintenance of liberty. The judiciary was
assigned the function of applying the laws that the constitution makers and the legislatures had
created and that the administrators enforced.

Today political analysts have abandoned these categories in favor of a continuum. At one pole is
the legislative process for making law (formulating norms) and at the other the administrative and
judicial processes for administration or applying the law (individualizing the norm). (These
categories are analytic, and the activities are not necessarily performed by agencies with
corresponding labels.) As to the distinction between the administrative and judicial, some
writers—such as Hans Kelsen and Otto Kirchheimer—insist that these processes cannot be
distinguished functionally and that it is more or less a historical accident whether some disputes
are assigned to what are known as courts whereas others are assigned to what are known as
administrative agencies. Others, such as Roscoe Pound, insist that the difference grows out of the
fact that administrators are not obliged to make their decisions by following prescribed procedures
or in accord with legal doctrines. Administration is seen by these writers as power and discretion,
whereas adjudication is rational and controlled. The dispute here is but a facet of an ever-recurring
discussion to which we will return later.
35
THE JUDICIAL PROCESS AS AN INSTRUMENT OF SOCIAL ORDERING

Introduction: The nature of judicial process

The duty of the judge is to interpret and apply the law to the cases before him. When a judge
decides a case, he does something more than simply applying a law, he interprets and moulds the
law to fit in with the facts and circumstances of the case. According to Cardozo, while moulding
the law, he may use the methods of philosophy, of history, of sociology or of analogy. He moulds
the law so as to best serve the requirements of the society. The methods of philosophy, history,
sociology and analogy are the tools using which a judge performs his duty. Using these methods,
he fulfils his obligations towards the society which require him to give his view, his notion of law.

The judge who moulds the law by the method of philosophy may be satisfying an intellectual
craving for symmetry of form and substance. But he is doing something more. He is keeping the
law true in its response to a deep seated and imperious sentiment. By the method of philosophy, the
judge makes use of his own reasoning and standards of public good. Under this method, the judge
makes use of his own inner sub conscious element and gives to the society his own notion of right
and wrong, of just and unjust, of equality, fairness and justice.

By the method of history, it is meant that the judge makes use of the past decisions. He follows the
doctrine of precedent. He compares the case he has in hand with the past decisions and makes use
of the one which most closely resemble with the one he has to decide. The doctrine of precedent is
based on the principle that like should be treated alike and that there is stability and certainity in
law. However, while dealing with the precedents, the judge has to distinguish between those which
are liberal and beneficial for the future and those which are oppressive to the society. The judge
has to choose those precedents which best serve the purpose of the society.

According to Cardozo, the method of sociology demands that within the narrow range of choice,
the judge shall search for social justice. The judge has to see that his work leads to the attainment
of social order. He has to provide for the welfare of the society. The judge has keep the welfare of
the society as the ultimate aim of his work. He cannot attempt an action which would not be
beneficial for the society at large.

By the method of analogy, it means that the judge makes use of the alien jurisprudences. It is a case
where the judge borrows from other jurisprudences. While borrowing from other jurisprudences,
the judge has to make use of the similarity in laws and prevailing social conditions of the region
from where he borrows the provisions. The judge compares the case with similar problems in other
regions. In the case of Bijoe Emmanuel v. State of Kerala[1], the Supreme Court of India made use
of the law prevailing in other countries to decide the issue. In this case, the Supreme Court made

36
reference of the similar cases decided by the courts in Australia and U.S.A. to deal with the special
case of a particular sect.

For a judge, law is never static. It is dynamic and keeps changing. The judge has to mould it in
accordance with the needs of the society. The judge plays a very dynamic role in shaping the law
so as to best serve the society.

The judge has to take care that the law is progressive and protects the interests of the society and is
not oppressive and suffocating. The aim of judicial process is the attainment of social good. The
judge has to see that the law helps the society at large and does not infringe the goals of justice and
liberty.

SOCIAL ORDER: THE PURPOSE OF LAW

There have been different approaches to law. According to Austin, law is the command of the
sovereign. Bentham proposed his utilitarian calculus, according to which the aim of law is to bring
about maximum good of the largest number. Bentham’s hedonistic calculus was based on the
concept of social utility. According to Roscoe Pound, the purpose of law is social engineering.
Law aims to achieve social good. The welfare of the society is the paramount consideration of law.
Law aspires to end all social evils and to bring about social order.

Cardozo has stated that the final cause of law is the welfare of society. When judges are called
upon to say how far existing rules are to be extended or restricted, they must let the welfare of
society fix the path, its direction and its distance.

Law and society are interdependent and neither can be separated from the other. The good of the
society is its greatest requirement. Law serves the role of protector of the social order. Law aims to
attain the good and order in the society.

Social order is what the law aims to achieve. It is the ultimate object of all laws. Law has to provide
social order in order to protect the society from disintegrating.

Role of judges in bringing about social order

37
The ultimate aim of all law is to bring about social order. The judge is an important member of the
legal institution. He plays an important role in shaping the law to serve the social interest. For a
judge, law is never static.

A judge is empowered to review the various provisions of law. He is an independent and impartial
authority which can verify the reasonableness of a law. Being independent from the influence of
the executive and the legislative machinery, a judge can form an unbiased opinion on any question
of law.

A social problem requires a solution and judges have the role of resolving disputes. While settling
a dispute, the judge is also required to take into consideration the various social requirements.
Amongst the various options being available before him, a judge has to choose the one which best
serves the interests of the society.

The welfare of the society must be the guiding force for a judge when he sits to perform his duty.
His obligation towards the society is to fulfill the various social requirements of justice, order and
security. He has to give the welfare of the society a paramount place while dealing with any issue.
Being the interpreter of the society of its sense of law and justice, the judge has to be careful in his
work as his decisions determine the rights and obligations of various members of the society and
effect the people at large.

The judge provides for social order during his job as an interpreter. The various ways in which he
can provide for social order are by the methods of interpretation, supplying of omissions,
suggesting and recommending changes and new regulations and also through mediation process.
These are the techniques by which a judge brings about social order.

JUDICIAL CREATIVITY IS BASIS OF JUSTICE

Introduction

This essay will argue that judicial creativity is the basis of judges' practice of the common law
(‘judge made law') and also has an influence on enforcing positive law enacted by Parliament.
Furthermore, it will be argued that this is not a discretionary misuse of power, but a basic function
of the courts as an organ of state.

Distinguishing Law ‘Applying' And Law ‘Making'

38
The application of law is when a court or judge simply enforces a prior legal principle in its
entirety, as derived from an established source of law. This may include the application of
precedent or literal applications of statute.

For judges to make law, their approach to an area must seek a result which is in some way
incongruous with the result prescribed by prior sources of law. This includes departures from
precedent or teleological interpretation of statute.

Does Precedent Bind Judges To Applying The Law?

‘Precedents serve to illustrate principles and to give them fixed certainty' and as such it would
appear that they act to limit the capacity for judicial creativity. The London Tramways decision
supported this view of precedent by binding the House of Lords to its previous decisions and
affirming the idea of stare decisis within the common law. However, the modern doctrine of
precedence can be seen to have departed considerably from this position, especially with the
advent of the Practice Settlement 1966, which contra to London tramways, allowed Lords to
depart from its previous decisions. In the present state of affairs, Supreme Court judges ‘have
considerable leeway to expand on or distinguish the past conclusions of their colleagues'.

A theoretical issue which casts doubt over precedent as a limit to judicial creativity is that for a
given set of facts there may be two precedents, apparently of equal viability, which are
irreconcilable in terms of outcome. This can be observed in Adams v New Jersey Steamship where
a claimant sought compensation after a theft in his room rented on a steamship. The court had to
decide which of two precedents these facts were analogous to (theft from a train or hotel). As either
was equally viable it is inevitable that only judicial creativity could deem one or the other the
appropriate authority.

Legal Theories Supporting Application And Creation

The legal theories of natural law and legal positivism support the idea of judicial application and
judicial creativity respectively. The theory of natural law asserts that all law pre-exists
codification. Natural law is considered to be a ‘higher law' derived from the essential rules which
govern human coexistence. Proponents of natural law believe therefore that in common law, legal
solutions exist as objective moral norms which may be found through reasoning. As such all
progression in common law can be seen as applications rather than creations, even when a court
acts without express provision of statute or precedent. An example of this was Shaw v DPP in
which the appeal of a man publicising prostitutes in a magazine was dismissed on the principle that
he'd conspired to ‘corrupt public morals', an innovative approach which proponents of natural law
would believe to be applied from the moral norms.

39
Contra to the position of natural law is that of legal positivism which states that morality and law
are distinct and that law does not exist outside of human enactment. Natural positivists would
regard the ruling in Shaw differently to natural lawyers. They would suggest that the judges had
posited new law, derived not from morality, but social norms. This is the idea of the ‘activist'
judge, who facilitates the adaptation of the common law to current social consensus.

Is It Possible For Judges To Exclusively Apply The Law?

For judges to act solely as applicators of law they must be ‘political, economic and social eunochs'.
They must always ask what the law requires and not what justice requires. It is argued that as
judges consistently come across ‘moral, political and social issues in the cases that come before
them' it is impossible for them to act in such a mechanical capacity, especially seeing as the
common law is not subject to express codification. Instead, it is required of judges to ‘have regard
to common sense, legal principle and public policy in that order' as opposed to purely legal
principle. It can be said that a judicial decision which was reached via consideration of political
concerns and common sense (the judge's personal principles) is in some capacity creative. It is
argued that judicial creativity is a product of the political role of courts. The interaction of courts
with the law and governments (in a checking capacity) provides the essential ‘legal framework' for
government power, without which there would be no legitimacy.

The Interpretation Of Law: Application Or Creativity

In making decisions (with regard to statute or the common law) judges must give regard to sources
of law. They may employ a ‘meticulous examination of the language used' (a literal application of
law) or alternately pay ‘more attention to the apparent object' of the source. The latter such reading
was evident in the Ghaidan v Godin-Mendoza case in which the House of Lords (under S.3(1) of
the Human Rights Act 1998) reworded a clause in the Rent Act 1977 for the purpose of granting
the homosexual partner of a deceased tenant the same rights as a heterosexual couple (though this
was not expressly provided for in the act). It can be argued that in this instance, by going beyond
the defined limits of a statute the court acted in a creative capacity, in the interests of present
consensus. In this case it could be argued that similarly to Shaw v DPP, the court acted not only as
law makers, but ‘policy makers' as well. This role has been described as that of the ‘dynamic'
judge.

In the area of statute law at least, judicial creativity can be regarded as the exception rather than the
rule. Constitutional tools such as the Human Rights Act have availed judges with an opportunity to
approach legal problems more creatively but for the most part, as stated by Lord Diplock, ‘When
the meaning of the statutory words is plain and unambiguous' judges should not forbear from
enacting them for fear that ‘doing so would be inexpedient or even unjust or immoral'.

40
Judicial Perspectives On Whether Judges Make Or Apply Law

The division among judges on the issue has been described as a ‘pervasive dichotomy' which
encompasses those who support ‘doctrinal certainty' and those whose support ‘doctrinal
innovation'.

A judge who prefers the more restricted judicial role is Lord Reid, who in Knuller said of the
decision in Shaw, that although he had dissented in that case he thought that the precedent must
still ‘stand and apply to cases reasonably analogous'. Interestingly he refused to adopt a creative
stance to reverse a decision which he disagreed with as it was made in a creative capacity.

In favour of ‘doctrinal innovation' Lord Scarman asserts that the courts are one of ‘two law making
institutions' within the constitution. He concedes however that the courts will leave overtly
political concerns to Parliament.

A final perspective which appears to be close to a synthesis of the two is the view of Lord
Radcliffe. He states that if judges at least purport to adhere to the idea of ‘doctrinal certainty' then
‘respect' for the common law ‘will be greater'. He states that judges should ‘keep quiet about their
legislative function' as the ‘image of the judge, objective, impartial, erudite' is one which bears the
law in higher esteem.

Conclusion

On balance it is clear that judges often create the law, especially when issues of moral or political
contention are at stake. Furthermore, it is not the role of the courts to shy away from these issues
and it is their flexible approach to law making which allows the common law to adhere to social
consensus.

The Indian Judicial System

The Indian judicial system, a part of world’s largest democracy, is very old to follow. Right from
the monarchical rule to the British era and the modern system of the independent India, the Indian
judicial system has always tried to seek justice for the innocent and punishment for the guilty. The
modern day judicial system administers a common law system of legal jurisdiction. The laws are
codified, and different types of punishment are given depending upon the crime of the culprit.

Let’s take a look at how the Indian judiciary works. There are various levels of judicial bodies in
India. If we look at the hierarchy, it is as follows:

• The Supreme Court.

• The High Courts.

41
• The District Courts.

• The Village Courts/Panchayats.

All these courts have their jurisdictions and are to follow the laws according to the Constitution of
India. It is their duty, as mandated by the Constitution, to be its watchdog. They do so by calling
into scrutiny any act of the legislature or the executive, who otherwise, are free to enact or
implement these, from overstepping the boundaries set for them by the Constitution. The Indian
judicial system is independent from legislative and executive bodies in India.

Let’s now take a look at the functions of the courts as mentioned above and their jurisdictions:

The Supreme Court of India: The Supreme Court of India is the highest judicial body in India,
having jurisdiction all over India. It has been established under Part V Chapter VI of the Indian
Constitution. It comprises of one Chief Justice and 30 Judges, the selection of whom is done
through the collegium system. Article 124-147 of the Indian Constitution describes the working
and functions of the Supreme Court of India. The main function of Supreme Court is to review the
judgment given by the High Courts; however one can directly file a petition in the Supreme Court,
as stated in Article 32 of the Constitution.

The High Court

At present, there are 24 High Courts situated in different states and union territories. The High
Courts have their jurisdictions limited to their related states or union territories. According to
Article 141 of the Indian Constitution, the High Courts are bound to follow the orders of the
Supreme Court and their guidelines. A petitioner can appeal to a High Court as per article 226 of
the Constitution. The oldest High Court in India is the Calcutta High Court.

The District Courts of India

The district courts are established by the state governments in a different district of the states
depending on the population and number of cases. The high courts act as the watchdog for the
functions of district courts in India. The district courts are provided with one district judge and also
numerous assistant judges depending upon the workload of the particular court.

Issues with the Indian judicial system

Despite the independence of the judiciary from the executive and legislative bodies, the Indian
judicial system faces a lot of problems. We will now discuss a few problems that the Indian
judicial system faces.

The major issues that the Indian judicial system faces are:

42
• The pendency of cases.

• Corruption.

• Lack of transparency (particularly in the appointment of judges).

• Under trials of the accused.

• Lack of information and interaction among people and courts.

Elaborate the following points.

The pendency of Cases: One of the primary issues with the Indian judicial system is the pendency
of cases. If the vacancies are filled, pendency would go down and make the justice delivery system
efficient. According to a report of 2015, there were close to 400 vacancies for the post of judges in
the 24 High Courts of the country. The pending number of cases in the Supreme Court has
mounted to around 60,000. There are some 25-30 million cases in various courts. Budget
allocation for the judiciary is just 0.2 percent of the GDP. The judge-population ratio is 10.5-11 to
one million, which should be at least 50-55 to one million.

A Large number of cases that are pending in the Supreme Court as well as the other lower courts
has defeated the purpose of the judicial system. A famous proverb says, ‘justice delayed is justice
denied’. Judiciary is no longer attracting the best legal talent because of disparity in the income of
bright young lawyers and the emoluments of judicial officers. To attract persons of true potential
to the judicial cadre, the system must improve their service conditions, particularly the conditions
of the trial court judges.

In general, when the victim is not economically well off, they need to suffer as they are financially
weak and hence cannot afford high profile lawyers who can win the case in a limited span of time.
Meanwhile, the rich can easily afford expensive lawyers and change the course of dispensation of
the justice in their favour (not necessarily true if the lawyer follows ethical standards). This also
creates a big blockade for international investors and corporations who want to conduct business
operations in India. According to a report, in Mumbai, India’s financial hub, the courts are
burdened with age-old land disputes which act as a hurdle to the city’s industrial development.
Thus, the pendency of cases and lack of lawyers and judges is a big challenge to the Indian judicial
system.

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Corruption:

Like the other pillars of democracy, the executive and the legislative, the judiciary too (in some
instances) has been found to engage in corruption. There has not been established any system of
accountability. In the case of judicial processes, even the media is unable to give a proper and clear
picture of the corruption scenario. The media seems to be more focused on exposing corruption in
other fields, especially the executive. A minister taking a bribe or distributing money during
elections may become a headline, but a courtroom clerk taking a bribe and altering the date of the
trial remains unnoticed.

As per the constitutional provision, there is no provision yet for registering an FIR against a judge
who has taken bribe without taking the permission of the Chief Justice of India. Obviously,
visiting the CJI, seeking his permission, and then registering an FIR is not what a poor man will
prefer to do. This will prove to be more expensive and time consuming for him, besides the court
and lawyer’s expenses.

The Professional arrogance of the judges whereby judges do not do their homework and arrive at
decisions of grave importance while ignoring precedent or judicial principle delays justice and
adds to trial’s spam. In 2011, Soumitra Sen, a former judge at the Calcutta High Court became the
first judge in the India to be impeached by the Rajya Sabha alleged for misappropriation of funds.

Lack of transparency (particularly in the appointment of judges): In the recent past, there have
been many debates around all over the nation regarding the Collegium system and the new system
that the government wants to introduce for the appointment of judges, the NJAC. Well, be it the
collegium system or the NJAC, none seem to be transparent enough to make the selection process
of judges clear and understandable to the common public. All democracies are swiftly moving
toward an open government and a citizen’s right to know — an international trend increasingly
being supported by judicial decisions. Further, the right to know is a part of the freedom of speech
and expression and the present secretive system, as implemented by the collegium system, violates
this fundamental right. The principle of open trials and justice is highly essential for the fair
administration of justice.

The current government led by Prime Minister Modi states that the introduction of NJAC shall be
more transparency in appointment of judges. The supreme court of India, however, denied the fact
and said there is a need for the even higher level of law for the appointment of judges as NJAC is
not “perfect.” According to the SC, the bar council was invited to amend the NJAC saying that the
committee must comprise of the Chief Justice of India and four senior judges of the supreme court.

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Well, let’s say on this matter the government and the supreme court stand face to face, but the fact
is still unanswered whether the stated amendment or even the current proposal bring transparency
in the selection of judges and make the framework clear to the common public?

Accused under trial:

Another drawback that arises from the above-stated drawbacks is the under trials of the accused.
Precisely, for those who have committed a crime, it is OK, but is it fair for an innocent to spend
more time in jail just for waiting for his trial? The Indian jails are full of people under trials; they
are confined to the jails till their case comes to a definite conclusion. Mostly, they end up spending
more time in the jail than the actual term that might have had been awarded to them had the case
been decided on a time and, assuming it was decided against them. Moreover, all the expenses,
pain and agony that are used by them to defend themselves in courts are worse than serving the
actual sentence. Under trials are not guilty till convicted. On the other hand, the rich and powerful
people can bring the police to their sides, and the police can harass or silence inconvenienced and
poor persons, during the long ordeals in the courts.

Lack of interaction among people and courts: For any Judiciary to be successful, it is necessary
that the general public must know the mechanics of judiciary. The society must participate in the
court proceedings. However, it is the duty of public as well to make sure that they are participative
enough to have the knowledge related to the judiciary. The law officer and makers must be close to
the public and seek their opinion on a particular law or judgments.

Conclusion:

There is no doubt upon the credibility of the Indian judiciary system. It is one of the largest judicial
systems around the world having a law for almost all sorts of criminal activities. If we look at the
history, the Supreme Court, since its inaugural sitting on 28th of January 1950 has delivered over
25000 reported judgments. But the issues of corruption, pending cases, lack of transparency in the
judiciary cannot be avoided. Thus if the judicial system removes these backlogs, we might see
Indian judicial system as the best judicial system in the world. Also, the faith of the common
person in judiciary may be restored before it’s completely lost.

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INDEPENDENCE OF JUDICIARY IN INDIA

1. Meaning of Independence of Judiciary:

Before we discuss how independence of judiciary is maintained in India, it is essential to explain

what do we mean by the term “independence of judiciary. In the words of Dr. V.K. Rao,
“Independence of judiciary has three meanings:

(i) The judiciary must be free from encroachment from other organs in its sphere. In this respect, it
is called separation of powers. Our Constitution makes the judiciary absolutely independent except
in certain matters where the Executive heads are given some powers of remission etc.,

(ii) It means the freedom of the judgments and free from legislative interference. In this respect,
our constitutional position is not very happy because the legislature can in some respects override
the decisions of the judiciary by legislation.

(iii) The decisions of the judiciary should not be influenced by either the Executive or the
Legislature—it means freedom from both, fear and favour of the other two organs.”

The Constitution of India envisages an independent Supreme Court. In fact, every member of the
Constituent Assembly had been eager to see that the Court was made independent, as it could
possibly be. In the words of Austin, “The members of the Constituent Assembly envisaged the
judiciary as a bastion of rights and of justice. The Assembly has been careful to keep judiciary out
of politics.”

In the words of a member of the Constituent Assembly. “This is the institution which will preserve
those fundamental rights and secure to every citizen, the rights that have been given to him under
the Constitution. Hence, it must naturally be above all interference by the Executive. The Supreme
Court is the watchdog of democracy.”

In fact, independence of judiciary is necessitated not because of eagerness on the part of the people
to treat judges as favored members of the public services. It is essential for maintaining purity of
justice in the social system and enabling them to earn public confidence in the administration of
justice.

2. Methods to Secure Independence of Judiciary:

Sincere efforts have been made to secure the independence of judiciary through the following
methods:

(a) High Qualifications:

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Politics in the appointment of judges has been avoided by prescribing high minimum
qualifications for such assignments in the Constitution itself. An aspirant for such an important
office must have been a judge of a High Court, at least for five years or must an advocate of a High
Court be at least for ten years, or be a distinguished jurist.

(b) Handsome Remuneration Subject to Vote of Legislature:

As already mentioned, every judge is paid a high salary to maintain his status and dignity. As per
Act of 1986, the Chief Justice was to draw Rs. 10,000 p.m. and the other judges were paid Rs.
9,000 p.m. However in the recent past, the salaries of Judges of the Supreme Court were raised to
Rs. 30,000 p.m. and that of Chief Justice Rs. 33,000 p.m.

Their salaries have been further hiked in view of such hikes of other top officers of the
Government as per 6th Pay Commission report and cabinets’ generosity to hike the salaries of the
top executives viz., President, Vice- President and Governor etc. as well. Three-fold hike in case of
judges (Rs. 90,000) and 1, 00,000 p.m. in case of Chief Justice. In addition, they enjoy free
residential accommodation and many other perks.

During their term of office, their salaries and allowances cannot be altered to their disadvantage,
except in grave financial emergency. The administrative expenses of the Court are charged on the
Consolidated Fund. Evidently, their salaries and allowances compare favorably with those of
judges in other courts of the world. On September 21, 2006 their allowances after retirement were
hiked. This assures more security after retirement as well as pension will be hiked as per enhanced
salaries.

(c) Security of Tenure:

The Judges of the Supreme Court enjoy security of tenure. They are not removable from office
except by an order of the President and that also only on the ground of proved misbehavior or
incapacity, supported by a resolution adopted by a majority of total membership of each House and
also by a majority of not less than 2/3 of the members of that House present and voting.

(d) Lengthy Tenure:

Although the Constitution does not provide for life tenure, the existing provision of 65 years, in
effect amounts to nearly the same. A retiring age of 65 is, by Indian standard, very high,
considering the average span of life in India and also the average fitness of persons for work in old
age. Moreover, a retired judge according to Article 128, may be reappointed a judge by the Chief
Justice of India, with the consent of the President.

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Hence, if a judge is hale and hearty, sound in mind as well as in body, capable of rendering service,
for a few years more, he can be easily accommodated. Longevity of tenure keeps him immune
from temptation to amass fortunes for the old age.

(e) Oath to Work Fearlessly:

Before assumption of office, the judges have to take an oath to perform their duties fearlessly and
to uphold the Constitution. The ruling party committed to a particular ideology expects the judges
to read the writing on the wall and act accordingly. The supersession of three judges and
appointment of a junior judge as Chief Justice raised the issue. Ex-Chief Justice S.M. Sikri was of
the view that commitment to the philosophy of the ruling party, is not the part of the oath
administered to a judge. Hence such commitment should not be expected of him.

(f) No Practice after Retirement:

A retired judge of the Court is prohibited from practising law before any Court of authority within
the territory of India. The Constitution, however, permits the appointment of a retired judge for a
specialized form of work by the Government, for instance for conducting enquiries and special
investigations. Das Commission for conducting enquiry against Sardar P.S. Kairon, ex-late Chief
Minister of Punjab is an example of such enquiries assigned to a judge. Khosla Commission to
enquire into Netaji’s death by an air crash and more recently Justice Pathaks’ Authoritative Report
against External Affairs minister—Natwar Singh may be quoted as such instances. In fact, such
examples can be multiplied.

(g) Powers to Make Rules to Regulate their Procedure:

The Supreme Court is equipped with full powers to make rules for regulating its practice and
procedure and to take effective steps for the enforcement of its decrees and orders.

(h) Control over Establishment:

The Court is fully authorized to have its own establishment and have complete control over it. It
was, however, thought that in the absence of such a provision, the Court’s independence becomes
illusory. If for promotion, the establishment is to look to other quarters, it is likely to affect the
independence of the judiciary. Hence, all appointments of officers and servants of the Supreme
Court are made by the Chief Justice and the judges of the Supreme Court whom he may direct for
the purpose. Their conditions of service also are determined by the Supreme Court.

(i) Denial of Political Office before or after Retirement:

The judges should not be allowed to hold political office after retirement otherwise they will have
the temptation of creating ground for becoming the political leaders or gaining some other
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lucrative office through political Godfathers during their tenure as judges. Moreover, they should
not be allowed to seek election to the Parliament or contest for any other political office during the
term of their office after resigning from the office of a Judge. K. Subba Rao ex-chief Justice of
India resigned from the august office and contested for the President ship of India.

Naturally he had to pander to the opposition parties for support. Such a step seriously impairs the
independence of Judiciary as mind for election is to be made much before election. Thus for a
favour, the favours are apt to the doled out as well.

(j) Immunities:

The actions and decisions of the judges in their official capacity are immune from criticism. They
may, however, be subject to critical academic analysis. In order to maintain the dignity of the
Court and to protect it from malicious criticism, the Court has been empowered to initiate
contempt proceedings against any alleged offender and take appropriate action. The Court is, also
authorized to stop any act that might prejudicially affect its arriving at an impartial and
independent decision.

(k) Appointment by the Executive:

Independence of judiciary to quite a great extent, depends on the method of appointment of judges.
Election of the judiciary by the people or the legislature, would make it subservient to the whims of
the masses or a tool in the hands of legislators. The “Judiciary should be above suspicion and
should be above party influences.” Hence judiciary should be appointed by the executive.

Every judge of the Indian Supreme Court is appointed by the President, after consultation with
such of the judges of the Supreme Court, and the High Courts of the State, as the President may
deem necessary for the purpose. In the appointment of a judge other than the Chief Justice, the
President must consult the Chief Justice.

In actual practice, he is apt to be guided by ministerial advice as in all other significant

appointments. What can be its repercussion in the context of the latest thinking of having
‘committed judiciary’ is not difficult to speculate. An example established that government
imbued with socialistic ideas did not like to appoint such people as judges who impeded socialistic
progress and were reactionary in their outlook.

The supersession of three judges viz., Messers J.M. Shelat, K.S. Hegde and A.N. Grover and
elevation of a junior Judge Mr. A.N. Ray to the post of Chief Justice of the Supreme Court led to
scathing criticism by the concerned and their adherents that the President of India could make such
appointments or effect such promotions with extraneous considerations in view.

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In this case three superseded judges had given verdict against the controversial 24th and 25th
Amendments on April 24, 1973. Only two days later on the retirement of Chief Justice, S.M. Sikri,
a junior judge was promoted as the Chief Justice. In the opinion of distinguished lawyers and
judicial luminaries, this was very unfortunate action on the part of the Executive since it impaired
independence of judiciary a great deal.

It was contended that Judges toeing the line of the ruling party alone could hope for promotions.
Besides, it was feared that the future appointments might be made only out of judges or advocates
or jurists who will be committing themselves to the philosophy of the party in power.

(I) Right to Information Act:

As per 37th Chief Justice of Apex Court—Hon’ble Balakrishnan Judges are the constitutional
functionaries. Hence they are not coverable under the ‘Right to Information Act’. The Chief
Justice of India opined “…I am holding a Constitutional Office” This view has not been accepted
by the Parliamentarians.

The report of the Parliamentary Standing Committee which was presented to the Rajya Sabha on
April 29, 2008 stated, “Except judicial decisions making, all other activities of administration and
persons included in the judiciary are subject to the RTI Act. The pith and substance of the Act is to
empower people by allowing them to seek information regarding those occupying high office and
making decisions which affect their lives. Any reluctance only accounts to dilution of people’s
right to know. (EMS Natchhappan).

The Parliamentarians feel if other constitutional functionaries are covered why not the Judges be
covered by it? This will further help in maintaining independence of judiciary as they will be
accountable to the people of the country as well. Of course judicial decisions have been exempted
from ‘RTI Act’ because that could have impaired right judgements.

Some of the remarks of the legal luminaries expressing high-handedness of the Executive
impairing the dignity of the Indian Judiciary and striking at the root of its independence are worth
quoting. In the words of Mr. S.M. Sikri ex chief Justice of India, the supersession of three judges
was “a big blow to the independence of judiciary…they were superseded after they decided
against the government.”

Six eminent jurists including M.C. Setalvad and M.C. Chagla ex-chief Justice of Bombay were of
the view that the Union Government’s decision to supersede three senior most judges of the
Supreme Court was “a manifest attempt to undermine the courts’ independence…It is the saddest
day in the history of our free institutions. ”

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A resolution of Supreme Court Bar Association also emphasized the same point in the words, “it is
a blatant and outrageous attempt at undermining the independence and impartiality of the Judiciary
and lowering the prestige and dignity of the Supreme Court.”

No doubt if the judges were to be committed to a particular social philosophy, a similar case will
be decided differently in different states. Moreover with the ousting of the party in power, judges
will become out of tune with the new party coming in power. This will vitiate the whole
atmosphere of the country.

The Executive and the Judiciary in that case will always be on the look out to undermine each
other’s prestige. P.A. Sangma former Lok Sabha Speaker portrayed judicial activitism viz-a-viz
Executive and the Legislature in a balanced statement: “All the three arms of the Government are
meant to be active and complimentary. The inactive role of the Executive in the recent past has
resulted in the emergence of judicial activism… executive dormancy does trigger off judicial
activism…If the people of this country find that their aspirations and fundamental rights are not
protected because of the state’s inactions, they go to the courts. Why blame the courts it can only
be blamed on the undesirable proclivity to acquiescence. ”

However acclaiming yeoman service rendered by the judiciary, he suggested a restraint based on
extraordinary understanding of the governmental system of functioning and rightly pointed out
that “the courts of last resort should not end becoming the courts of first resort.

The Government defending its case super-session of senior judges was however of the view that
even according to Law Commission’s recommendations; seniority alone may not be the criterion
for elevation of a judge to the post of Chief Justice. In this case, the superseded judges were if not
better at least as good, as the new Chief Justice, as opined by S.M. Sikri. So there does not seem to
be any other reason except political consideration for by-passing these judges.

This concept of committed judiciary having dangerous consequences has given a severe set-back
to the concept of independence of judiciary. Hence Dash has remarked, “Thus the Indian Judiciary
has not been so well protected against temptations and allurements or threats of punishments as
will eliminate all possibilities of consideration of personal career in the discharge of their duties,”

Thus it can be concluded that the Constitution and its executors have made genuine attempts to
make the Supreme Court independent and impartial. The occasional attempts to deviate from this
practice may be generalized.

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JUDICIAL REVIEW

Judicial Review concept, which evolved in Marbury v. Madison, is armor to check-to-check

lawlessness – legislative as well as executive with a review to serve “legitimacy of power “and
administrative efficiency. Judicial review is the power by which judiciary aims at activising
herself in retaining her domain of judicial activity over the state inactivity. This judicial activism is
a multifortiori as it makes action popularize not only popular through strategies of PIL vide pro
bono public, but a rule of life for the lowly and lost, little man, deprived, underprivileged, destitute.

JUDICIAL REVIEW IN INDIA

As in India so far as the fundamental rights are concern Judicial review is provided explicitly under
Article 13 of Indian constitution and for the rest of the constitutional provisions judicial review is
implicit under the writ jurisdiction of the Supreme Court and the high courts given under article 32
and 226 respectively. Further judicial review is also traceable in the “Doctrine of limited
government”.

And the classic examples of above are given in the case Keshvananda Bharti v. state of Kerala in
which the Supreme Court passed orders under article 13 of Constitution and the Bhagalpur
Blinding case of 1979-80, in which the supreme court ordered under Article 32 of
Constitution of India.

ORIGIN

In post-independence India, the inclusion of explicit provisions for ‘judicial review’ were
necessary in order to give effect to the individual and group rights guaranteed in the text of the
Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent
Assembly, had described the provision related to the same as the ‘heart of the Constitution’.
Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any
law that takes away or abridges any of the fundamental rights, and any law made in contravention
of the aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has evolved on the lines of common law doctrines
such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural
justice, the Supreme Court of India and the various High Courts were given the power to rule on
the constitutionality of legislative as well as administrative actions. In most cases, the power of
judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of
the Constitution. The higher courts are also approached to rule on questions of legislative
competence, mostly in the context of Centre-State relations since Article 246 of the Constitution
read with the 7th Schedule, contemplates a clear demarcation as well as a zone of intersection
between the law-making powers of the Union Parliament and the various State Legislatures.
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Hence the scope of judicial review before Indian courts has evolved in three dimensions –

1) Firstly, to ensure fairness in administrative action

2) Secondly, to protect the constitutionally guaranteed fundamental rights of citizens and thirdly to
rule on questions of legislative competence between the centre and the states. The power of the
Supreme Court of India to enforce these fundamental rights is derived from Article 32 of the
Constitution. It gives citizens the right to directly approach the Supreme Court for seeking
remedies against the violation of these fundamental rights.

This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the
form of writs evolved in common law:-

1) habeas corpus (to direct the release of a person detained unlawfully),

2) mandamus (to direct a public authority to do its duty),

3) quo warranto (to direct a person to vacate an office assumed wrongfully),

4) prohibition (to prohibit a lower court from proceeding on a case) and

5) certiorari (power of the higher court to remove a proceeding from a lower court and bring it
before itself).

Besides the Supreme Court, the High Courts located in the various States are also designated as
constitutional courts and Article 226 permits citizens to file similar writs before the High Courts.

Judicial review has held in legitimizing of the government’s action protecting the fundamental
rights and helping the judiciary against any undue encroachment of the executive and the
legislature over its powers. It has also helped in maintaining the supremacy of the constitution, the
division of powers, the separation of powers and the rule of law etc. Because of its importance the
Supreme Court ruled in Keshvananda Bharti case 1973 that judicial review is the part of the basic
structure of the constitution.

However while applying judicial review the judiciary shall follow the following condition

1. If two interpretations are possible for a given law where the first interpretation leads to
validation of the law and the second leads to its invalidation then the court hall give preference to
the first interpretation in preference to the second.

2. Ordinarily the courts shall not pronounce one the validity before the law is brought under legal
enforceability.

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3. Ordinarily the courts shall not pronounce under validity of the law suo –muto, but only on the
petition or a reference made to the judiciary.

Now these are the ideal conditions of judicial review and when these conditions are surpassed that
amounts to judicial overreach which is a very dangerous phenomenon. And this had happened
many times in Indian political history.

DOCTRINE OF SEPARATION OF POWERS

The Doctrine of Separation of Powers deals with the mutual relations among the three organs of
the Government namely legislature, executive and judiciary. The origin of this principle goes back
to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of
the Government into three categories viz., deliberative, magisterial and judicial Locks categorized
the powers of the Government into three parts namely: continuous executive power, discontinuous
legislative power and federative power. “Continuous executive power” implies the executive and
the judicial power, and “discontinuous legislative power” implies the rule making power, while
“federative power‟ signifies the power regulating the foreign affairs.

The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748,
for the first time enunciated the principle of separation of powers. That is why he is known as
modern exponent of this theory. Montesquieu’s doctrine, in essence, signifies the fact that one
person or body of persons should not exercise all the three powers of the Government viz.
legislative, executive and judiciary. In other words each organ should restrict itself to its own
sphere and restrain from transgressing the province of the other.

Montesquieu explained the doctrine in its own word they are:

“When the legislative and executive powers are united in the same person, or in the same body or
magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates
from the legislative and executive powers. Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control; for the Judge would then be the
legislator. Where it joined with the executive power, the Judge might behave with violence and
oppression. There would be an end of everything were the same man or the same body to exercise
these three powers…”

Importance of The Doctrine Of Separation Of Powers

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of
why it is not accepted by a large number of countries in the world. The main object as per
Montesquieu in the Doctrine of separation of power is that there should be government of law
rather than having whims of the official. Also another most important feature of the above said

54
doctrine is that there should be independence of judiciary i.e. it should be free from the other
organs of the state and if it is so then justice would be delivered properly. The judiciary is the scale
through which one can measure the actual development of the state if the judiciary is not
independent then it is the first step towards a tyrannical form of government i.e. power is
concentrated in a single hand and if it is so then there is a cent percent chance of misuse of power.
Hence the Doctrine of separation of power do plays a vital role in the creation of a fair government
and also fair and proper justice is dispensed by the judiciary as there is independence of judiciary.

Doctrine of Separation of Power in India

The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the
functions of different organs of the Government have been sufficiently differentiated, so that one
organ of the Government could not usurp the function of another.

In Indian Constitution there is express provision that “Executive power of the Union shall be
vested in the President and the executive power of the State shall be vested in Governor..” (Article
154(1) of Indian Constitution). But there is no express provision that legislative and judicial
powers shall be vested in any person or organ.

President being the executive head is also empowered to exercise legislative powers. In his
legislative capacity he may promulgate Ordinances in order to meet the situation as Article 123(1)
says “If at any time, except when both Houses of Parliament are in Session, President is satisfied
that circumstances exist which render it necessary for him to take immediate action, he may
promulgate such Ordinance as the circumstances appear to him to require”.

When Proclamation of emergency has been declared by the President due to failure of
Constitutional machinery the President has been given legislative power under Article 357 of our
Constitution to make any Law in order to meet the situations. A power has also been conferred on
the President of India under Article 372 and 372-A to adapt any Law in country by making such
adaptations and modifications, whether by way of repeal or amendment as may be necessary or
expedient for the purpose or bringing the provisions of such Law into accord with the provisions of
the Constitution.

The President of India also exercises judicial function. Article 103(1) of the Constitution is notable
in this connection. According to this Article “If any question arises as to whether a member or
either of House of Parliament has become subject to disqualification mentioned in clause (1) of
Article 102, the questions hall be referred for the decision of the President and his decision shall be
final”. Article 50 lays emphasis to separate judiciary from executive. But in practice we find that
the executive also exercises the powers of judiciary as in appointment of judges. (Articles 124, 126
& Article 127). The legislative (either House of Parliament) also exercises Judicial function in

55
removal of President (Article 56) in the prescribed manner. Judiciary also exercises legislative
power, High Court and Supreme Court are empowered to make certain rules legislative in
character. Whenever High Court or the Supreme Court finds a certain provision of law against the
Constitution or public policy it declares the same null and void, and then amendments may be
incorporated in the Legal System. Some time High Court and Supreme Court formulate the
principles on the point where law is silent. This power is also legislative in character.

The first major judgment by the judiciary in relation to Doctrine of separation of power was in
Ram Jawaya v. State of Punjab. The court in the above case was of the opinion that the Doctrine of
separation of power was not fully accepted in India.

Later in I.C. Golak Nath v. State of Punjab, Subha Rao, C.J opined that

“The constitution brings into existence different constitutional entitles, namely the union, the state
and the union territories. It creates three major instruments of power, namely the Legislature, the
Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise
their respective powers without overstepping their limits. They should function with the spheres
allotted to them.”

In Keshvananda Bharti v Union of India the court was of the view that amending power was now
subject to the basic features of the constitution. And hence, any amendment tampering these
essential features will be struck down as unconstitutional.

JUDICIAL REVIEW AND THE DOCTRINE OF SEPARATION OF POWERS

As clearly mentioned about the separation of power there were times where the judiciary has faced
tough challenges in maintaining and preserving the Doctrine of separation of power and it has in
the process of preservation of the above said Doctrine has delivered landmark judgments which
clearly talks about the independence of judiciary as well as the success of judiciary in India for the
last six decades.

Henceforth, it can be said that the rule of separation of power in today’s scenario cannot be worked
out in a proper way. There is a need for a new and better doctrine which serves the purpose of the
present democratic need, whether it is a parliamentary or presidential type of government. If we
take the background of the major countries like U.S.A, U.K, India, Russia, France, Germany,
Spain and U.A.E, it can be seen it there is no complete separation of power that Montesquieu had
advocated. All the organs of the Government are subject to each other’s scrutiny by way of checks
and balance. Thus, it can be better said that all the organs of the government should behave in a
way that they do not violate the principal law or the rule of law of the country and it should be
upheld in all circumstances for the better protection of the rights, liberties and freedoms of the
people of that state. So, each organ are impliedly required to restraint their powers to the sphere
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which has been provided or set forth in the Constitution and to undertake steps that serves the
purpose for which it is there. Any act, inaction or abuse of such powers by one organ calls for
interference of the other organ. Reference can here be made of Nuremberg trial, where in the Court
has held that the judges are not to act upon the laws which are against the humanity or based on
unreasonable classification or are arbitrary in nature or are against the moral principles; even if
such laws are passed by the parliament. They are to restraint themselves from participating in it
and serve the purpose of the nation by bringing in modification or interpretations to the laws.
Similarly, Parliament is to observe that the laws made by it are not against the rule of law, or
against the Constitution or against the public morale and humanity. It should also from time to
time keep an eye on the social changes and scientific advancement so that the laws meet the
demands of the time and must not involve in colorable legislation. The Executive should also
refrain from executing the laws which are against natural justice or which is in violation of the
rights, liberties and freedoms of common man or is against the state or constitution in particular.
This is the doctrine of Self Restraint, whereby, all the organs try to fulfill the aspirations of the
nation and uphold the rule of law, without interfering into the domain of the other. The
Constitution must in all circumstances be considered supreme, and the laws made by the
legislature should pass the test of reasonableness and the objectives of the Constitution.

Separation of power is the essential feature of the Democratic Republic established under our
Constitution by division of powers between the three important wings of the State: The Parliament
and State Legislatures, the Executive and the Judiciary. However there is absence of specific
provisions in the Constitution exclusively vesting legislative powers in the legislature and judicial
powers in the judiciary was noticed in Delhi Laws in 1951, but the essence of doctrine of
separation of powers and of constitutional limitation was accepted as a feature of basic structure of
the Constitution in Indira Gandhi vs. Raj Narain. Judicial review and activism functions of the
judiciary is an important element of our system of justice to keep a check on the legislature who are
the law makers of the land, so that they do not exceed their powers and work within the allowances
that the constitution has made for them. the separation of the judiciary from the other organs
though is taken very seriously so that the common man’s liberty can in no circumstances be
compromised and a fair remedy is available to any individual citizen of the state. Thus the Indian
Constitution, which is an extremely carefully planned document designed to uphold the integrity
and liberty of every citizen, has not in its entirety embraced the doctrine of separation of powers
but has indeed drawn a lot from the concept and kept it as a guiding principle. But the doctrine of
Separation of Powers has been included in our basic structure doctrine as has been ruled and
upheld by the Supreme Court in a number of cases. Thus it holds a position of utmost importance,
albeit has been modified to suit the needs of a modern all pervasive state.

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JUDICIAL ACTIVISM

Definition

According to Black’s Law Dictionary judicial activism is a “philosophy of judicial

decision-making whereby judges allow their personal views about public policy, among other
factors, to guide their decisions.” Judicial activism is articulated and enforced by judicial rulings
suspected of being based on personal or political considerations rather than on existing law.
Judicial activism implies going beyond the normal constraints applied to jurists and the
Constitution, which gives jurists the right to strike down any legislation or rule against the
precedent if it goes against the Constitution. Judicial activism is premised upon the fact that judges
assume a role as independent policy makers or independent “trustees” on behalf of society that
goes beyond their traditional role as interpreters of the Constitution and laws[xiv]

Origin

The origin of judicial activism through judicial review can be traced back under the unwritten
Constitution of Britain during the Stuart period of (1603-1688). Sometime, in the year 1610, the
power of judicial review was asserted for the first time in Britain through the activism of Justice
Coke. Evolving the principles of judicial review, Chief Justice Coke declared that if a law made by
the Parliament violated the principles of ‘common law’ and `reason’ then the courts might review
and adjudge it as void. Coke’s theory of judicial review was repeated by Sir Henry Hobart in 1615
and again in 1702 by Sir John Holt. The British chief justices asserted the power of the judiciary to
review acts of the British Parliament under ‘reason’ and ‘common law’. “Though Coke’s words
were repeated”, John Agresto finds that “except for Dr. Bonham’s case instances of actual
nullification of parliamentary laws by British courts cannot be cited.” Since then, however,
judicial review did not get a upper hand as it was over-shadowed by the evolution of parliamentary
sovereignty in Britain.

Judicial Activism in India

Judicial activism in India means the power of the Supreme Court and the high courts but not the
sub-ordinate courts to declare the laws as unconstitutional and void if it infringes or if the law is
inconsistent with one or more provisions of the constitution. To the extent of such inconsistency
while declaring a law as constitutional and void the courts do not suggest any alternative measures.
According to SP Sathe “a court giving a new meaning to the provision so as to suit the changing
social or economic conditions or expanding the horizons of the rights of the individual is said to be
an activist court.”

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Evolution of Judicial Activism in India

Supreme Court of India started off as a technocratic court in the I950s but slowly started acquiring
more power through constitutional interpretation. Its transformation into an activist court has been
gradual and imperceptible. In fact the roots of judicial activism are to be seen in the court’s early
assertion regarding the nature of judicial review.

In India Judicial activism can be positive as well as negative.

1) A court engaged in altering the power relations to make them more equitable is said to be
positively activist and

2) a court using its ingenuity to maintain the status quo in power relations is said to be negatively
activist’ .I believe this is an elaboration of Cardozo’s oft quoted dictum regarding ‘felt necessities
of the times’. It is clear that the authors in favor of the positively activist court.

Landmark Judgments

a) AK Gopalan v. State of Madras:

Significant decision was observed because it represented the first case where the court
meaningfully examined and interpreted key fundamental rights enlisted in the constitution
including article 19 and 21. A writ of habeas corpus was filed. The contention was whether under
this writ and the provisions of THE PREVENTIVE DETENTION ACT, 1950, there was a
violation of his fundamental rights which were article 13, 19, 21 and 22. The counsel on behalf of
the petitioner argued that the right to movement was a fundamental right under article 19 and
hence the defense counsel must prove that the law of preventive detention was a reasonable
restriction as per the five clauses of article 19(2).

Judge restricted the scope of fundamental rights and by reading them in isolation of article 21 and
22 which provided guidelines for preventive detention. Foreign precedent like cases of UK and US
were used in limiting the scope of article 21. Justice Kania said that the term due process prevented
the courts from engaging in substantive due process analysis in determining the reasonableness of
the level of process provided by the legislature. He remarked:-

The word “due” in the expression “due process of law” in the American Constitution is interpreted
to mean “just,” according to the opinion of the Supreme Court of U.S.A. That word imparts
jurisdiction to the Courts to pronounce what is “due” from otherwise, according to law. The
deliberate omission of the word “due” from article 21 lends strength to the contention that the
justifiable aspect of “law”, i.e., to consider whether it is reasonable or not by the Court, does not
form part of the Indian Constitution. The omission of the word “due”, the limitation imposed by
the word “procedure” and the insertion of the word “established” thus brings out more clearly the
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idea of legislative prescription in the expression used in article 21. By adopting the phrase
“procedure established by law” the Constitution gave the legislature the final word to determine
the law.

Fazl Ali’s dissent broadly construed the provision “procedure established by law” in Article 21 to
encompass higher principles of natural law and justice, and not just statutory law. he said that the
Indian Constitution intended to incorporate the same language as the Japanese Constitution and
encompass “procedural due process” conception, he still cited to American , British and foreign
precedent to support a much more expanded view of due process. They were based on the
principles of Natural Justice. Fazal Ali highlighted a series of US decisions; the US Supreme Court
recognized that the word law does not exclude certain fundamental provisions. Drawing on British
and US legal sources he argued for incorporating procedural due process into article 21, guided by
principles of Natural Justice in accordance with universal, transactional and legal norms.

In the above case two major points were held: Art 19, 21 and 22 are mutually exclusive. Art 19 was
to not apply to a law affecting personal liberty to which art 21 applies. In the above case, the
restrictions under article 19 applied only on free people. Unless the state arrested a person for
making a speech, holding an assembly, forming an association or for entering a territory, the arrest
had to be EXAMINED under article 21. A “LAW” affecting life and liberty could not be declared
unconstitutional merely because it lacked natural justice or due procedure. Hence article 21
provided no immunity against competent legislative action.

b) Kharak Singh v. State of Uttar Pradesh:

The petition under Article 32 of the Constitution of India challenged the constitutional validity of
Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon police officials
by its provisions on the ground that they violate the rights guaranteed to citizens by Articles
19(1)(d) and 21 of the Constitution of India. On the basis of the accusations made against him, he
had police constables entering his house and shout at his door, waking him up in the process. On a
number of occasions they had compelled him to accompany them to the station and had also put
restrictions on him leaving the town.

The judges made a breakthrough while interpreting and finding the connection between article 19
and 21 by remarking that:

• If a person’s fundamental right under Article 21 is infringed the State can rely upon a law to
sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid
down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In other
words, the State must satisfy that both the fundamental rights are not infringed by showing that
there is a law and that it does amount to a reasonable restriction within the meaning of Article

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19(2) of the Constitution. But in this petition no such defence is available, as admittedly there is no
such law.

• So the petitioner Kharak Singh could legitimately plead that his fundamental rights, both under
Articles 19(1)(d) and 21, were infringed by the State. Hence, on these grounds the petitioner
Kharak Singh was entitled to issue of a writ of mandamus directing the respondent- State of Uttar
Pradesh- not to continue visit to his house.

Here, the majority adopted a restrictive conception of liberty that only extended to direct
infringement of the freedom of movement, and refused to recognize the existence of a right to
privacy. However this theory which was the minority judgment of J Subba Rao went on to become
the majority judgment in

c) Satwant Singh Sawhney v. Union of India:

Satwant Singh the petitioner was a manufacturer; importer and exporter who were asked to
surrender the passport on the ground that he was likely to leave India to avoid a trial. For the first
time, the Court was able to author a majority decision and binding precedent in the area of personal
liberty that built and relied on foreign precedents dealing with substantive due process. Moreover,
Chief Justice Subba Rao used combination of American precedents, along with the opinions in
Kharak Singh, to rule that the term “personal liberty” is as broad in India as the term “liberty” is in
the 5th Amendment of the U.S. Constitution. The court recognized that right to life and liberty
could be taken away by a “procedure established by law”. However it cancelled the government’s
order to the petitioner to surrender his passports. Its judgment was found on the limited ground of
the failure to provide for any procedure regulating the denial/surrender of passports under the
Indian Passports Act, 1920. The court’s objection was based on the absence of a procedure rather
than the merits of the existing system. [x] Soon after the Satwant Singh Judgment, the parliament
enacted the Passport Act, 1967 to regulate how passports would be issued, revoked, impounded or
revoked- matters on which legislation did not exist earlier.

India’s democratic structure following the Emergency was shaken to the core as it had severely
impinged on a person’s fundamental rights. The citizens were resentful and there was severe
dishonesty on the part of the government along with the crippled nature of the highest court in
land.

d) Maneka Gandhi v Union of India[xxii]:

In this case the Supreme Court restored the citizen’s faith in judiciary. The 3 landmark judgements
were depicting a great change in the thought process of the judiciary and had set the stage for
Judicial Activism to be introduced.

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The Supreme Court not only broadened the meaning of “personal liberty” but also adopted the
theory of “due process” in “procedure established by law”. The court recognized that when a law
restricts personal liberty, a court should examine whether the restriction on personal liberty also
imposed restrictions on any of the rights given by article 19. The Court held that personal liberty
includes “a variety of rights which go to constitute the personal liberty of man,” in addition to
those mentioned in Article 19, and that one such right included in “personal liberty” is the right to
go abroad. The court also held that according to the “audi alteram partem” theory, impounding
Mrs. Gandhi’s passport without giving her a hearing violated procedure established by law. These
were principles of natural justice and fair procedure. The court had to decide whether Mrs. Gandhi
was entitled to a hearing before her passport was impounded. It was resolved that as there was no
post decisional hearing, the impounding was UNCONSTITUTIONAL AND VOID.

Amongst the fundamental rights, article 14, 19 and 21 of the constitution- composing the “golden
triangle” have been invoked most often to declare legislation or arbitrary state action invalid. In
this particular case, there was conflict whether the right to travel abroad formed a right to personal
liberty under article 21. The Supreme Court departed from the stereotyped notion and held that
fundamental rights form an integrated scheme under the constitution. Emphasizing the need to
read Part III of the Constitution in a holistic manner, the SC said that the mere fact that a law
satisfied the requirements of one fundamental right did not exempt it from the operation of other
fundamental rights. The majority of the seven judge bench stated that any procedure established by
law under article 21 would have to be “fair, just and reasonable” and it differed from the Satwant
Singh case by establishing that even in presence of a law, an arbitrary law will not be considered.
The Supreme Court after this judgment became the watchdog of the constitution instead of
supervisors.

JUDICIAL CREATIVITY

Expansion Of Right To Life By Means Of Judicial Activism

The above topic was an exhaustive evaluation of judges and their path breaking performance with
regard to changing the dynamics of article 21. American Constitution’s concept of Due process
was finally embodied in the words “procedure established by law”. The current topic will deal with
the expansion of the provision due to the revolution created by the MANEKA GANDHI
JUDGEMENT. The concept of PIL started taking shape, which was pioneered by the great Justice
P.N Bhagwati who took cognizance of the fact that in certain circumstances, A PIL may be

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introduced in a court of law by the court itself (suo moto), rather than the aggrieved party or
another third party. Post Maneka Gandhi’s case, the Supreme Court ascertained that,

“In order to treat a right as a fundamental right, it is not necessary that it should be expressly stated
in the constitution as fundamental right. Political, social and economical changes in the country
entail the recognition of new rights. The law grows to meet the demands of the ever evolving
society”

Hence the Supreme Court has found Article 21 to incorporate the substantive freedom that serves
as means to remove major areas such as poverty, poor economic opportunities as well as
systematic social deprivation. A most significant feature of expansion of article 21 has been that
many of the Non-justifiable Directive Principles have been converted into ENFORCEABLE
FUNDAMENTAL RIGHTS by the hands of judges. Guarantees of economic opportunities and
protection against social deprivations were established in various decisions:

1. Quality of life

2. Right to Livelihood

3. Right to medical care

4. Right to Die

5. Sexual Harassment

6. Ecology and Environment

7. Right to Privacy

Right to Privacy

The constitution does not grant in specific and express terms any right to privacy as such Right to
Privacy is not encumbered as a Fundamental Right in the Constitution. However, such a right has
been culled by the Supreme Court from Art 21 and several other provisions of the Constitution
read with the Directive Principles of State Policy.

As mentioned above, the Kharak Singh was the first of its own kind, to inaugurate the idea of
“privacy” where issues were raised regarding implying the right to privacy from existing
fundamental rights such as Article 19(1)(d) and 19(1)(e) and 21. During that time, J Subba Rao had
commented

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“The right to personal liberty takes in not only a right to be free from restrictions but also free from
encroachments on his private life”

In 1965, the Supreme Court of India heard and decided State of Uttar Pradesh v. Kaushaliyaa case
which involved the question of whether women who are engaged in prostitution can be forcibly
removed from their residences and places of occupation, or whether they were entitled, along with
other citizens of India, to the fundamental right to move freely throughout the territory of India,
and to reside and settle in any part of the territory of India.

In its decision, the Supreme Court denied them this right holding that “the activities of a prostitute
in a particular area are so subversive of public morals and so destructive of public health that it is
necessary in public interest to deport her from that place. The statutory restrictions imposed by the
Suppression of Immoral Traffic Act on prostitutes, were upheld by the Court as
constitutionally-permissible “reasonable restrictions” on their movements.

In 1972, the Supreme Court decided a case – one of the first of its kind – on wiretapping.[xxiii]

In R. M. Malkani v. State Of Maharashtra[xxiv] the petitioner’s voice had been recorded in the
course of a telephonic conversation where he was attempting blackmail. He asserted in his defence
that his right to privacy under Article 21 had been violated. The Supreme Court declined his plea
holding that “The telephonic conversation of an innocent citizen will be protected by Courts
against wrongful or high handed’ interference by tapping the conversation. The protection is not
for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of
public servants. The case had fallen in the PRE MANEKA era.

In Govind vs. State of Madhya Pradesh, decided by a three-Judge Bench of the Supreme Court is
regarded as being a setback to the right to privacy Jurisprudence where the judges established that
surveillance is not an unreasonable restriction upon right to privacy. It is only persons who are
suspected to be habitual criminals and those who are determined to lead a criminal life that is
subjected to surveillance.

An interesting angle was brought about in the famous NAZ FOUNDATION CASE. The
petitioners argued ‘to the effect that the prohibition of certain private, consensual sexual relations
(homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity
within the ambit of right to life and liberty under Article 21 can be abridged only for a compelling
state interest which, in its submission, is amiss here’

The Court then disposed of claims that this invasion of privacy was justified within the exception
to Article 21.

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“While it could be “a compelling state interest” to regulate by law, the area for the protection of
children and others incapable of giving a valid consent or the area of non-consensual sex,
enforcement of public morality does not amount to a “compelling state interest” to justify invasion
of the zone of privacy of adult homosexuals engaged in consensual sex in private without
intending to cause harm to each other or others.

However this case suffered a huge setback when Supreme Court overturned the ruling of the Delhi
High Court condemning homosexuality by holding Section 377 of the Indian Penal Code valid and
demanding the legislature to take appropriate action pertaining to the abolishment of this particular
provision. Right to privacy has been hence denied to anyone who commits the offence under
Section 377.

A similar concept of ‘public interest’ would seem to apply when private companies disclose
personal information without a person’s consent. Without delving into the issue in too much detail,
it would suffice here to mention one of the most important cases to have come up on the issue. In
Mr. X v. Hospital Z, a person sued a hospital for having disclosed his HIV status to his fiancé
without his knowledge resulting in their wedding being called off. The Supreme Court held that
the hospital was not guilty of a violation of privacy since the disclosure was made to protect the
public interest.

The Times of India reported that the law ministry is working on a proposal to make right to privacy
a fundamental right in the Indian Constitution. The right to privacy would include the right to
confidentiality of communication, confidentiality of private or family life, protection of his honour
and good name, protection from search, detention or exposure of lawful communication between
individuals, privacy from surveillance, confidentiality of banking, financial, medical and legal
information, protection from identity theft of various kinds protection of use of a person’s
photographs, fingerprints, DNA samples and other samples taken at police stations and other
places and protection of data relating to individual.

Conclusion

Judicial activism connotes the assertive role played by the judiciary to forced the other organs of
government to discharged their assigned constitutional functions towards the people. It has held
reinforcing the strength of democracy and reaffirms the faith of people in rule of law. Judicial
activism may have been force upon the judiciary by an insensitive and unresponsive
administration that disregards the interest of the people and that the nation does not suffer
because of the negligence on the part of the executive and legislature.[xxviii]

Former Justice S. H. Kapadia said Parliament and executive had well-defined powers under the
Constitution and these needed to be respected by the judiciary. “Legality and legitimacy are

65
important concepts and go hand in hand. If there is excess of judicial overreach, then the
legitimacy of judgments will be obliterated,” he warned.

However judicial activism may be a welcome measure on in a short run where it helps in
maintaining the rule of law and allows one organ to sustain the administration of the country when
other organs are not performing. If it is practiced for a long time it may dilute the theory of
separation of power and the doctrine of checks and balances.

However at the end I would conclude by stating that judicial activism may be good for protecting
the fundamental rights of the citizens and protecting their interest from the vicious bureaucrats and
politicians but extreme activism will lead to overreach of judicial powers that may lead to a misuse
of power by the judges leading to arbitrary decision making as well tyranny which may be against
the rule of a democratic country and so to ensure that no arbitrariness takes place judicial review
should be practices by the respected Judiciary within the purview of doctrine of separation of
powers and checks and balances.

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IMPORTANT QUESTIONS

Q1. WHAT DO YOU MEAN BY LITERAL RULE OF INTERPRETATION ? HOW DOES

THIS RULE DIFFER FROM THE GOLDEN RULE. EXPLAIN ?

Q2. WHAT IS MEANING OF ‘INTERPRETATION’ AND ‘CONSTRUCTION’ ? IS THERE

ANY DISTINCTION B/W TWO EXPRESSION ? EXPLAIN THE OBJECT OF
INTERPRETATION?

Q3. THE JUDICIARY HAS ENCROACHED UPON THE DOMAIN OF EXECUTIVE.

CRITICALLY DISCUSS.

Q4. WHAT DO YOU UNDERSTAND BY INDEPENDENCE OF JUDICIARY ? DO YOU

AGREE THAT TO ENSURE INDEPENDENCE OF JUDICIARY JUDICIAL
ACCOUNTABILITY IS INEVITABLE ? DISCUSS ?

Q5. CRITICALLY EXAMINE THE IMPORTANCE OF BENTHAM THEORY OF UTILITY?

Q6. ONE OF THE POSITIVE OUTCOME OF JUDICIAL CREATIVITY IS THE

INNOVATION OF HIDDEN CONSTITUTIONAL RIGHTS FOR THE PROTECTION OF
CITIZENS FROM STATE ACTION. CRITICALLY DISCUSS.

Q7. OBJECT OF JUDICIAL PRECEDENT IS TO CREATE FARNESS AND PROVIDE

CERTAINITY IN LAW. WHEATHER THE DOCTRINE OF JUDICIAL PRECEDENT
HAMPER THE JUDICIAL CREATIVITY? DISCUSS ?

Q8. WHAT DO YOU UNDERSTAND BY JUDICIAL PROCESS ? DO YOU AGREE THAT

JUDICIAL PROCESS HAS DEVELOPED SOME FINEST PRINCIPLES OF RULE OF LAW
AND IMPROVED THE QUALITY OF LIFE IN INDIA ? DISCUSS ?

Q9. WRITE AN ESSAY ON JUDICIAL ACTIVISM AND ROLE PLAYED BY SUPREME

COURT IN THIS REGARD ?

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