JUDICIAL PROCESS

1. Discuss Development of Law as a creativity of judicial

process.
Intro:
One renowned American Judge said that “the Last reason for law is the welfare
of society”. Law is the basic rules of the society through which the social order
is maintained.
According to Austin: Law is the command of the sovereign
According to Salmond: Law is the collection of rules which the state recognizes
and applies in the administration of justice.
The purpose and aim of law is to attain justice in society. Justice is an abstract
idea of right and wrong in the society, the measurement of fairness and equality.
Judicial process concept:
To understand what is judicial process in India. We must first
understand what is Justice and the meaning of judicial separately. Justice is an
irrational term. In lay mens term it means absence of fear it comes with lack of
arbitrariness, freedom of liberty and equality and equal access to quick
affordable satisfactory credible dispute settlement forum. Justice in nutshell
means rule of law.
Judicial Means Relating to administration of justice or the function of a Judge.
Therefore, everything done by the judge in the process of attaining justice is
called judicial process.
Development of Law as a creativity of Judicial Process.
India is a common law country. Common Law is developed by Judges through
the decisions of the court. This system was followed by British and hence it was
also in India. Common law together binds codified laws such as statutes etc as
well as precedents in form of case laws which form basis of the present
judgement. Law is dynamic which keeps on changing with the changing needs
of the society and hence application of common law has been overreaching in
Indian Context.
Judicial process is the method of attaining justice which seeks to achieve the
desirables, and prohibit undesirables. The essence of justice lies in Rule of law
which requires that law of land is stable and not arbitrary that is to say, law is
not ruled by the changing government rather the government and its
instrumentalities are ruled by the law. In the modern times there are two
interpretations of the Rule of law, the first the more traditional view is that of
the plenary adhering to the rules of the laws while the second view allows the
encompassing of the ideal rules based on criteria of morality and justice within
its province.
Modern states follow the second principle of rule of law because a law which is
stable becomes oppressive after some time, due to its failure to satisfy the needs
of the progressive society. 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 [Link] 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.
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 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.
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 development of law is a dynamic process that involves the interplay of both
judicial and legislative processes.
The judicial process, in particular, plays amsignificant role in shaping and
expanding the law through its interpretative and creative functions. Judges,
through their judgments and decisions, contribute to the growth and evolution of
the legal framework. This creativity of the judicial process can be observed
through several examples and landmark cases.

1. Interpretation of Constitutional Provisions: The judicial process is

instrumental in interpreting and applying constitutional provisions, thereby
influencing the growth of constitutional law. The judiciary often encounters
situations where the language of the Constitution may be open to multiple
interpretations. In such cases, judges creatively interpret the Constitution to give
effect to its underlying principles.
For instance, in the case of Keshavananda Bharati v. State of Kerala, the
Supreme Court of India creatively interpreted the Constitution to establish the
doctrine of basic structure, which limits the power of the Parliament to amend
the Constitution and preserves its fundamental features.
2. Expanding Fundamental Rights: The judiciary, through its creative
interpretation of fundamental rights, has expanded the scope of individual
freedoms and rights. Over time, the Supreme Court of India has given a broad
and
liberal interpretation to fundamental rights to address the changing needs of
society. For example, in the case of Navtej Singh Johar v. Union of India, the
Supreme Court decriminalized consensual homosexual acts by reading down
Section 377 of the Indian Penal Code. This decision demonstrated the creative
approach of the judiciary in expanding the scope of individual rights to include
the rights of the LGBTQ+ community.
3. Filling Legislative Gaps: The judicial process plays a vital role in filling
gaps in legislation through its interpretative powers. When statutes are
ambiguousor do not provide clear guidance, judges creatively interpret the law
to address the legislative gap. According to Cardozo, ―He legislates only
between gaps. He fills the open spaces in the law While interpreting any statute,
the judge has to keep within the restraints laid down by the legislator. The role
of the judge is not of legislating but of interpreting and applying the law. It is
during his job as an interpreter that a judge maybe required to fill in the missing
blanks in the statute. However, while filling up the blanks, a judge has to take
precaution that what he supplies to the law protects the spirit of the law and
does not destroy it.
For instance, in the case of Vishaka v. State of Rajasthan, the Supreme Court of
India formulated guidelines to prevent and address sexual harassment at the
workplace, filling a legislative void. This decision showcased the judiciary's
creativity in formulating new norms and principles to protect the rights of
women in the absence of specific legislation.
4. Adapting to Social Change: The judicial process responds to societal
changes and adapts the law accordingly. Judges creatively interpret existing
laws to keep pace with evolving societal values and norms. This is particularly
evident in cases involving social issues such as gender equality, reproductive
rights, and environmental protection. For example, in the case of Suchita
Srivastava v. Chandigarh Administration, the Supreme Court recognized a
woman's right to make decisions about her reproductive choices, including the
right to access abortion. This decision reflected the judiciary's creative approach
in addressing evolving social issues.
5. Overturning Precedents: The judicial process has the power to overturn its
own precedents when there is a need for legal reform or to rectify past errors.
This allows the law to grow and adapt to changing circumstances.
The enactment of the 17th Constitutional amendment was challenged in the case
of Sajjan Singh [viii] and the Court proceeded to hold that an amendment to the
Constitution, meant, an amendment to all the provisions of the Constitution.
This stand continued for about 13 years, till the case of I C Golaknath vs state of
Punjab [ix] whereby, the Court overruled its earlier decisions in Shankari prasad
(supra) and Sajjan Singh (supra) and proceeded to hold that the legislature does
not have the power to amend part III of the Constitution to take away
fundamental rights and the doctrine of prospective overruling was laid down by
Justice Subba Rao.
6 Recommendations
Often a judge may be required to give his recommendations or suggestions to
enact the particular law which would serve the social need. A judge plays a very
important part in social ordering when he lays down suggestions or
recommendations regarding any social problem. The public interest litigations
play a very important role in protecting the interests of the society. By means of
public interest litigations, the lawyers and judges attempt to eradicate certain
social problems. Public interest litigations play a very useful role when the
legislature and the executive fails to find out a solution for the existing
problems. Public interest litigations are a recent creation of the courts by which
they aim to provide the cure for the ills prevalent in the society. The judges are
very instrumental in eradicating the social problems. The judiciary took a very
active role while laying down the procedural requirements required while
making an arrest in the case of D.K. Basu v. State of West Bengal[5]. In this
case the Apex Court laid down various guidelines which are to be followed by
the policemen while making any arrest. The reason behind laying down such
provisions was that there were complaints of police atrocities in the police lock
ups. Similarly, in the case of Vishakha v. State of Rajasthan[6], the Supreme
Court again laid down guidelines for the safety of working women. In this case,
the instances of sexual harassment of working women at their workplace were
an issue. The Supreme Court laid down various guidelines to be implemented
by the employer for the protection of the working women. In this case, the court
even declared that the sexual harassment of the female employees amounted to
the violation of the right to work and is discriminatory against them. In the case
of Sarla Mudgal v. Union of India[7], while dealing with the problem of
anomalies in different personal laws and people making use of these differences
to defeat the end of justice, the Supreme Court had expressed a view that the
uniform civil code should be implemented. In this case also the judiciary tried to
provide for the social requirement for a uniform civil code which would take
care of all the problems relating to the differences in the personal laws. The
Supreme Court has also laid down certain rules to be followed when the
adoption of an Indian child is made by any foreigner. The reason behind such
recommendations was the presence of the menace of the use of young children
in beggar and slavery. These rules help in protecting the child from economic,
social, physical and sexual exploitation. Further, in the case of Association for
Democratic Reforms v. Union of India[8], the Delhi High court and on appeal
the Supreme Court has given guidelines for cleansing of the electoral process
from the impact of criminals and wealth and bringing about electoral reform in
India. Similarly, the courts have taken active parts in issues related to illegal
constructions, anomalies in school admissions, ragging at university level(
Lingdow committee report) and so on. The court had taken these steps in order
to ensure social justice The judiciary may be required to take up the role of
legislators when the legislative fails to provide sufficiently for the social
requirement. This act of judiciary is known as judicial activism. The judiciary
has acquired its activist power from its review power. The judicial activism has
played an important role in attaining social order as it satisfies the various
requirements of the society.
7 Mediation proceedings
The social institution requires certain relationships to be protected and
sanctified. In order to prevent minor problems developing into irresolvable
issues, the judges take the role of mediators. The role of a judge as a mediator is
a very recent one. Till date, judges used to solve the disputes. Now they try to
prevent the disputes from arising. In cases of minor discords, the judges help in
solving the issues before they take the form of major disputes. The judges
suggest out of court settlement of disputes in order to prevent certain
relationships from breaking down. In the present day society, judges suggest the
use of mediation proceedings specially when the need is to protect an institution
as sacred as the institution of marriage. Judges serve as the mediator in various
cases to prevent a relationship from breaking down. The law mandates
mediation and the courts encourage and endorse it. It is a cheaper, simpler and
more productive manner of dispute resolution. It helps to restore the broken
relationships and focuses on improving the future and not on dissecting the past.
The benefit of mediation is that it is a voluntary process and both the parties are
able to assess their case and come up to an amicable solution. The judges play
an active role in encouraging and endorsing mediation proceedings. Conclusion
A judge is the interpreter of the society. He makes visible the various laws.
While interpreting a law, the judge also corrects the errors present in the law, he
supplies the omissions in the law. The main object of law is to bring about
social order and the judges play an important part in attaining that objective.

In summary, the growth of law is a result of both the judicial and legislative
processes. The creativity of the judicial process is evident in its ability to
interpret laws, expand fundamental rights, fill legislative gaps, adapt to social
change, and overturn precedents. Through these mechanisms, the judicial
process contributes significantly to the development and evolution of the legal
framework, ensuring that the law remains relevant and responsive to the needs
of society.
The development of law through the judicial process is a fascinating aspect of
legal evolution. Over time, judges, through their decisions and interpretations,
contribute to the growth and evolution of the legal system.
Growth of law with judiciary
judiciary has become not only corrective to legislative and executive excesses
and irregularities, its power of judicial review has come as a boon to under
privileged individuals or groups since its verdicts have been in consonance with
basic freedoms and liberties of the people in the context of time and space. In
justice delivery system the Courts have evolved new theories, principles and
practices by elbowing out old notions and contradicting time tested traditional
jurisprudential false beliefs like that judges do not make law, the doctrine of
separation of powers and the doctrine locus standi and have innovated new
principles of combat socio-economic problems, promote collective rights and
protect social interests in respect of consumerism and environmental hazards
etc.

Conclusion
A judge is the interpreter of the society. He makes visible the various laws.
While interpreting a law, the judge also corrects the errors present in the law, he
supplies the omissions in the law. The main object of law is to bring about
social order and the judges play an important part in attaining that objective The
judiciary has taken an active role in attaining social order and justice. To serve
the purpose of the social utility, the judge had to play the part of the legislator as
well. A role, which has been much criticized but is very important for fulfilling
the needs of the society. A democracy needs a forum, other than the legislature
and the executive, for redressing the legitimate grievances of the
minoritiesracial, religious, political or others. In India, at the present time, the
Supreme Court is laying great emphasis on vindication of the rights of the poor
and deprived people. The court has acknowledged this fact. Thus, in Punjab
Rickshaw pullers‘ case[9], the Supreme Court had stated that ―Judicial
activism gets its highest bonus when its order wipes some tears from some
eyes.‖ Thus, it can be concluded that judicial process has a very active and
positive role in social ordering.

2. Explain varieties of Judicial Activism and discuss the

institutional liabilities of court of law.
Introduction
Under the Indian Constitution, the State is under the prime responsibility to
ensure justice, liberty, equality and fraternity in the country.1 State is under the
obligation to protect the individuals’ fundamental rights and implement the
Directive Principles of State Policy. In order to restrain the State from escaping
its responsibilities, the Indian Constitution has conferred inherent powers, of
reviewing the State’s action, on the courts. In this context, the Indian judiciary
has been considered as the guardian and protector of the Indian Constitution.
Considering its constitutional duty, the Indian judiciary has played an active
role, whenever required, in protecting the individuals’ fundamental rights
against the State’s unjust, unreasonable and unfair actions/inactions. Black’s
Law Dictionary defines judicial activism as: “a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among
other factors, to guide their decisions, usually with the suggestion that adherents
of this philosophy tend to find constitutional violations and are willing to ignore
precedent”.
Constitutional powers of the Supreme Court and High Courts in India
Judicial activism happens when the courts have power to review the State
action. Article 13 read with Articles 32 and 226 of the Indian Constitution gives
the power of judicial review to the higher judiciary to declare, any legislative,
executive or administrative action, void if it is in contravention with the
Constitution. The power of judicial review is a basic structure of the Indian
Constitution.
Article 32 of the Indian Constitution gives right to every individual to move
directly to the Supreme Court of India for the enforcement of his or her
fundamental right. Article 32 confers power on the Supreme Court to issue any
order or writ for the enforcement of any of the fundamental rights.
The Supreme Court in Fertilizer Corporation Kamgar Union v. Union Of India
held that the power of the Supreme Court under Article 32 is an integral part of
the basic structure of the Indian Constitution “because it is meaningless to
confer fundamental rights without providing an effective remedy for their
enforcement, if and when they are violated.” It cannot be suspended even during
emergency. Increasingly, the Supreme Court has interpreted Article 32 in a very
liberal manner in many cases in order to enforce fundamental rights even
against the private entities performing public functions.
Article 226 of the Indian Constitution gives power to the High Courts to issue
any appropriate order or writ for the enforcement of fundamental right and other
legal rights. In this context, the jurisdiction of High Court under Article 226
seems wider than the jurisdiction of Supreme Court under Article 32. Both
Articles 32 and 226 are basic structure of the Indian Constitution.
In Vishaka v. State of Rajasthan, the Supreme Court held that in the “absence
of enacted law to provide for the effective enforcement of the basic human right
of gender equality and guarantee against sexual harassment and abuse, more
particularly against sexual harassment at work places, we lay down the
guidelines and norms specified hereinafter for due observance at all workplaces
or other institutions, until a legislation is enacted for the purpose. This is done in
exercise of the power available under Article 32 of the Constitution for
enforcement of the fundamental rights and it is further emphasized that this
would be treated as the law declared by this Court under Article 141 of the
Constitution.” (law declared by SC shall be binding on all courts within territory
of India)
However, the Parliament has power to replace such directions e.g., the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 replaced the Vishakha Guidelines for prevention of sexual harassment
issued by the Hon’ble Supreme Court of India in the year of 1997.
Judicial activism and shift from locus standi to public interest litigation
Access to justice is a fundamental aspect of rule of law. If the justice is not
accessible to all, establishment of the rule of law is not possible. The individuals
fail to reach justice system due to various reasons including lack of basic
necessities, illiteracy, poverty, discrimination, privacy, poor infrastructure of the
justice system, etc.
The Supreme Court of India has recognised in many landmark judgments that
access to justice is a fundamental right. Indian Judiciary has played an active
role in ensuring access to justice for the indigent persons, members belonging to
socially and educationally backward classes, victims of human trafficking or
victims of beggar, transgender, etc.
Since Independence, the Courts in India have been adopting innovative ways for
redressing the grievances of the disadvantaged persons. In many cases, the
Supreme Court exercised its epistolary jurisdiction and took suo motto actions
on mere postal letters disclosing the human rights violations in society. Human
rights violations, which published in the newspapers, were taken into judicial
consideration. The court entertains the petitions which are being filed by the
public spirited persons in the public interest. By doing so, the superior courts
have liberated themselves from the shackles of the principle of locus standi and
given the birth to the Public interest litigation in India. The shift from locus
standi to public interest litigation made the judicial process “more participatory
and democratic.”
While under the traditional paradigm, a judicial decision was binding on the
parties (res judicata) and was binding in personam, the judicial decision under
public interest litigation bound not only the parties to the litigation but all those
similarly situated.
The first reported case of PIL in 1979 focused on the inhuman conditions of
prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, the
PIL was filed by an advocate on the basis of the news item published in the
Indian Express, highlighting the plight of thousands of undertrial prisoners
languishing in various jails in Bihar. These proceeding led to the release of more
than 40,000 undertrial prisoners. Right to speedy justice emerged as a basic
fundamental right which had been denied to these prisoners. The same set
pattern was adopted in subsequent cases.
In another case of Sheela Barse v. State of Maharashtra, 22 a letter alleging
custodial violence of women prisoners in jail was addressed to the Supreme
Court. The letter was written by a journalist who had interviewed some women
prisoners in jail. Treating the letter as a writ petition, the Supreme Court took
cognizance and issued directions to the concerned authority.
In 1981 the case of Anil Yadav v. State of Bihar, exposed the brutalities of the
Police. News paper report revealed that about 33 suspected criminals were
blinded by the police in Bihar by putting the acid into their eyes. Through
interim orders Supreme Court directed the State government to bring the
blinded men to Delhi for medical treatment. It also ordered speedy prosecution
of the guilty policemen. The court also read right to free legal aid as a
fundamental right of every accused. Anil Yadav signalled the growth of social
activism and investigative litigation.
A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the
case of S.P. Gupta v. Union of India. In this case it was held that any member of
the public or social action group acting bonafide can invoke the Writ
Jurisdiction of the High Courts or the Supreme Court seeking redressal against
violation of a legal or constitutional rights of persons who due to social or
economic or any other disability cannot approach the Court. By this judgment
PIL became a potent weapon for the enforcement of public duties where
executed in action or misdeed resulted in public injury.
In Citizen for Democracy v. State of Assam, the S. C. declared that the
handcuffs and other fetters shall not be forced upon a prisoner while lodged in
jail or while in transport or transit from one jail to another or to the court or
back.
Judicial activism and fundamental rights jurisprudence In India,
the judiciary has developed the fundamental rights jurisprudence while giving
the liberal interpretation to the ‘right to life and personal liberty’. In its
landmark judgments, the Supreme Court recognized prisoners’ rights including
access to court and legal facilities, right to meet his or her family relatives and
friends,freedom of speech and expression, right to compensation,mental
privacy,etc.
The judiciary in India is again responsible for the fundamental right to live in
healthy environment. Beginning with the Rural Litigation Kendra case
(1985), the Court has introduced concepts like “sustainable development,”
“polluter pay,” and the public trust doctrine principle. It has also adopted some
other concepts from international treaties like the Stockholm Declaration, Rio
Declaration, Kyoto Protocol, Biodiversity Convention, various United Nations
Environmental Programs, and so forth.
Judicial activism and education
The Supreme Court recognized the fundamental right to education to children.
In Bandhua Mukti Morcha v. Union of India,3the Supreme Court held that right
to education is implicit in and flows from the right to life guaranteed under
Article 21.
The Hon’ble Supreme Court of India in Mohini Jain v. State of Karnataka said
that the cumulative effect of Articles 21, 38, Articles 39 (a) and (b), 41 and 45
bind the State to provide education to all of its citizens.4
The Supreme Court declared that the right to education flows directly from right
to life. The right to life under Article 21 and the dignity of an individual cannot
be assured unless it is accompanied by the right to education.

Freedom of press

In the case of Sakal Newspapers Pvt. Ltd. v. Union of India (1962), the
government sought to regulate the number of pages in relation to the price of the
newspaper in accordance with the Newspaper Act of 1956 and order of 1960.
The Supreme Court ruled that newspapers could not be subject to the same
regulations as other businesses because they served as a forum for the exchange
of ideas and information. This decision broadened the protections for free
speech provided by Article 19(1)(a) of the Constitution.
Women empowerment

in the case of Air India v. Nargesh Meerza (1981), where the Supreme Court
ruled that the rule requiring an air hostess to leave the workforce following her
first pregnancy was invalid, unconstitutional, and in violation of Article 14 of
the Indian Constitution.

In the Laxmi v. Union of India (2015) case, in 2006, Laxmi, a victim of an acid
attack, filed a petition calling for laws to control the sale of acid and to
compensate the victim. In 2013, the Supreme Court put strict restrictions on the
sale of acid due to the rise in cases involving acid attacks on women.

In the case of Navtej Singh Johar v. Union of India (2018), the Supreme Court
declared a portion of Section 377 of the Indian Penal Code to be
unconstitutional and stated that it “violates the right to life and liberty
guaranteed by Article 21, which encompasses all aspects of the right to live with
dignity, the right to privacy, and the right to autonomy and self-determination
with respect to the most intimate decisions of a human being”.

In the case of Shakti Vahini v. Union of India (2018), the Supreme Court ruled
that the right to choose one’s life partner is a fundamental right protected by
Article 21 and ordered the government to take all reasonable preventive steps to
prevent honour killings and related crimes.

Due to judicial intervention only, the government was directed to rehabilitate

the children of [Link] was ordered that the children of prostitutes should
not be allowed to live with their mothers in the undesirable surroundings of
prostitute homes. They require accommodation and rehabilitation in reformatory
homes. Increasingly, the Supreme Court of India in Vishal Jeet v. Union of
India, again issued directions to the government to rehabilitate such children.
In Bachpan Bachao Andolan v. Union of India, the Supreme Court directed the
government to prohibit the employment of children in circuses in order to
implement the fundamental right to education. The government was ordered to
raid in theses circuses to free children. The court directed the government to
provide shelter and rehabilitation to all rescued children at care and protective
homes until they attain the age of 18 years.
In the case of Olga Tellis v. Bombay Municipal Corporation (1986), the Court
stepped in to support pavement dwellers in Bombay by pointing out that the
right to life also includes the right to a livelihood.
 In the M.C. Mehta case, Article 21 recognised the right to a pollution-free
environment as a fundamental right.

Accountability And Judicial Law Making/ Institutional Liabilities of Court

of Law.
There is no dispute on the fact that the judiciary should also self regulate itself.
It should also put some restraints on its powers, whenever it is required.
The Supreme Court in Divisional Manager, Aravali Golf Course v. Chander Has
observed that: “Judges must know their limits and must not try to run the
Government. They must have modesty and humility, and not behave like
Emperors.
There is broad separation of powers under the Constitution and each organ of
the State-the legislature, the executive and the judiciary- must have respect for
the others and must not encroach into each other’s domains.”
The Supreme Court is also welcoming the full-fledged debate on the existing
collegium system and wants it to be updated. Indian Constitution has given the
special status to the Supreme Court and High Courts.
Indian higher judiciary has power to review any legislative, executive and
administrative action of the State. The Higher Courts in India entertain the
petitions which are being filed by the public spirited persons in the public
interest. Again, one should not forget that it is all because of the judicial
activism that the indigent persons, members belonging to socially and
educationally backward classes, victims of human trafficking or victims of
beggar, transgender, etc. have somehow been provided with the adequate legal
assistance in the process of the enforcement of their fundamental rights.
Furthermore, Article 142 of the Indian Constitution gives the Supreme Court a
power to pass suitable decree or order for doing complete justice in any pending
matter.
Judicial Accountability is defined as the responsibility of Judiciarys own
decisions or actions and expected to explain them whenever it is asked for. It is
one of the bedrocks of the democratic country.
It is the Sine qua non for the effective functioning of the democracy.
The Faith of the people on Judiciary is eroding day by day due to lack of
accountability.
The recent contempt of court case of Senior Advocate Prashanth Bhushan and
the Stand-up Comedian Kunal Kamras case of Criminal Contempt Proceedings
for their act of questioning the democracy of their inabilities had thrown light
on the judicial autocracy and it leads to an ineffective judiciary without any kind
of accountability.
Thus in a country like India, to have a judiciary without accountability is like
eroding the base of the democratic pillar.

Code of ethics for judge:

 Nemo Debet Esse Judex Inpropria Causa Sua:
Which means No person should be the Judge in his own cause. This means that
If a Judge feels that he is some way or the other connected to the case as
mentioned in the Principle of Naural Justice concept then he should suo moto
recuse to take the case. This Move will Instill confidence in the People on
Judiciary and its accountability

 Audi Alteram Partem:

Hear the other side,which means that Justice is seemed to be delivered only
after hearing the other side. Both the parties to the suit should be heard or given
a chance to be represented by their cousel in order deliver unobstructed and
clear Justice.

 Salus Populi Suprema Lex Esto:

which means Let the welfare of the people should be the supreme law.

 Judges should stay away from Public Functions on a frequent basis and
should avoid contact with people frequently and the reason is that people
may think that the judge is so close to someone and they may not get fair
justice.

In Ram Pratap Sharma v Dayanand issued a note of caution to the effect that
it is proper for a judge not to accept any invitation and hospitality of any
business or commercial organization or of any political party or of any club or
organization run or sectarian communal or parochial line[10].
 
Judicial Decision should be Impartial and the judge should be honest in
his duty of delivering justice.

To preserve the delicate balance of power among the various branches of

democracy, the Supreme Court has repeatedly emphasised the significance of
judicial restraint.

In the case of Minor Priyadarshini v. the Director of Elementary (2016), Justice

Markandey Katju stated, “Under the Constitution, the legislature, the executive,
and the judiciary each have their own broad spheres of operation. If any of
these three state bodies ventures outside of their respective jurisdictions, the
Constitution’s delicate balance will be upset. Therefore, the judiciary must use
restraint and repress the desire to act as a super-legislature. It will only
increase its own respect and reputation by exercising restraint.”

In the well-known case of S.R. Bommai v. Union of India (1994), the Court
determined that there can be no judicial review when there is a high level of
political interest involved and that the judiciary should not get involved.

In Almitra H. Patel v. Union of India (2000), the Supreme Court rejected giving
the Delhi Municipal Corporation instructions on how to clean Delhi, claiming
that the matter was outside of its purview and that all it could do was ask the
organisation to carry out its legal obligations.

In a number of other cases, the court has upheld the restraint principle and its
limited application. In Divisional Manager, Aravali Golf Course v. Chander
Haas (2007), the Supreme Court stated that “judges must know their limits and
are not to run the government. Instead of acting like emperors, they must be
modest and humble. The Constitution establishes a clear division of power, and
each branch of government is obligated to respect the others and refrain from
encroaching on their domain.”

The Supreme Court once more emphasised in Government of Andra Pradesh v.

P Laxmi Devi (2008) that “invalidating a legislative act is a grave step that
should never be taken lightly. A court may rule that a statute is unconstitutional
not simply because this point of view is possible, but only when it is the only
viewpoint that is not subject to the rational question“.
CONCLUSION
The scope of judicial activism is so broad that no precise definition exists. The
powers for judicial activism or review are derived from the Indian constitution,
which empowers them to perform an effective function by asserting themselves.
In the Judiciary, protection of the Constitution, rule of law, and
constitutionalism are strengthened by judicial activism, which serves as a safety
net in the event of a crisis brought on by a different interest group in society.
The judiciary oversees the administration of justice and ensures that decisions
are made in the public interest and in good faith.

However, courts should exercise caution when implementing the concept. The
judges should exercise self-control and limit their interference with other
organs. When judges become overly enthusiastic, they tend to cross certain
lines, making it difficult to maintain the traditional functioning of the courts. As
a result, there must be a distinction between judicial activism and judicial
overreach because judicial overreach will destabilise the judiciary. To uphold
the nation’s peace, prosperity, law, and order, the government must work more
effectively and smoothly. The task of covering up and correcting the
wrongdoing and poor judgement of the government cannot be placed as a heavy
burden on the judiciary. The skill of judicial activism should be used with
extreme caution because it is the height of judicial creativity and a delicate
subject. Otherwise, the integrity of the system may be undermined.

3. Critically analyze the nature and scope of the Public Interest

Litigation as a Tool of Judicial Creativity in India. What are
the remedies available for misuse of PIL.
Intro
The Taj Mahal, the eternal symbol of love in India, has withstood the brutal
force of the elements for centuries. But this magnificent monument was almost
destroyed by pollution. That is, until a lawyer by the name of M.C. Mehta filed
a Public Interest Litigation seeking directions from the Hon’ble Court to direct
authorities to take steps to stop pollution.

Another example of a PIL is the Oleum Gas Leak Case that established the
concept of “absolute liability” in Indian law.

A Public Interest Litigation also known as PIL is a form of litigation that is filed
to safeguard or enforce public interest. Public Interest is the interest belonging
to a particular class of the community affects their legal rights or liabilities. It
may include pecuniary interest.

Nature of PIL

The term PIL is not defined in any statutes or legislations.

In general terms PIL means legal action initiated in the court of Law.

It may be legal action initiated by court itself(suo moto) or aggrieved party or

any third party

In case of public IL , it is not necessary that the aggrieved party shall initiate the
legal proceedings all the time.

There may be ocassions where the victim or the aggrieved party may not have
proper guidance or resources to initiate or proceed with legal action to seek
appropriate remedy.

PILs are extensions of Writ Jurisdiction. Therefore, PILs may be filed either
before the Hon’ble Supreme Court of India under Article 32 of the Indian
Constitution or any High Court under Article 226 of the Indian Constitution.

Scope of Public Interest Litigation in India

Initially, only petitions relating to habeas corpus were recognized as the subject
matter of PIL. Now the scope of PIL extends to many issues of public
importance such as:

 Child abuse and child labour

 Cases of neglected children
 Bonded labour cases
 Atrocities against woman, rape cases, kidnapping and murder
 Refusal to pay minimum wages to workmen
 Persecution of the socially and economically backward sections of the
society – especially children and women
 Complaints against police
  Cases relating to environmental protection

Laws governing PIL in India

Over the years, the courts in India have formulated various principles with
respect to PILs:

 Relaxed rule of locus standi- PILs can be filed by any person for the
welfare of others who are disadvantaged and are thus unable to
approach the courts themselves. Thus, the general rule of locus standi
has been relaxed in cases of PILs to protect and safeguard the interests
and rights of these disadvantaged people.
 Relaxed procedural rules- Courts have treated even a letter or a
telegram as a PIL as in the case of Rural Litigation & Entitlement
Kendra, Dehradun vs. State of Uttar Pradesh (see here). Even the law
regarding pleadings has been relaxed by the courts in cases of PILs.
 Intervention by the courts– Courts has also highlighted the fact that
Article 14 & 21 of the Constitution of India and the International
Conventions on Human Rights provide for a fair and reasonable trial.
Thus, Courts must intervene when injustice is done to many.
Important cases relating to PIL in India

 Vishaka v State of Rajasthan

This case played a crucial role in influencing the Parliament to enact the Sexual
Harassment at Workplace Ac, 2013. In this case, a social activist was gang-
raped for vengeance. All the accused were acquitted by the trial court. The state
applied for a petition to the Supreme court under the name Vishaka. The court
laid down the guidelines to follow in workplaces to prevent sexual harassment.

 Fertilizer Corp. Kamnagar Union v Union of India

In this case, the court held that; when the power of bureaucracy increases,
misuse of legal standing is inevitable. The only solution is the expansion and
flexibility of locus standi to expand the scope of justice.

 Mumbai Kamgar Sabha v Abdul Thai

In this case, the issue was the payment of bonuses to workers in an industry.
Justice V.R Krishna Iyer rightfully held that; the right to approach courts when
similar individual rights of several people are infringed is the appropriate
remedy in our socio-economic context.

 Hussainara Khatoon v State of Bihar

This case dealt with the harsh conditions of prisons and under trial prisoners. An
advocate filed a petition under Article 32 describing the poor condition of
undertrial prisoners and their inability to safeguard their personal liberties. The
court held that the right to a speedy trial is a part of the right to life under Article
21.

 S.P Gupta v Union of India

A group of lawyers filed a writ petition under Article 226 of the Constitution
regarding the appointment of judges. The petition was allowed as the lawyers
had a genuine interest in the disposal of cases and appointment of judges. This
case opened up a new era for public interest litigation in India. PIL became one
of the most effective tools to enforce public duty, which was earlier executed
illegally, thereby causing injury to society.

 Bandhua Mukti Morcha v Union of India

In this case, an organization for bonded labourers filed a petition before the
Supreme Court to release bonded labourers. The court distinguished PIL from
adversary litigation and stated the objective of PIL is to allow the government to
make fundamental rights meaningful according to the Constitution.

 People’s Union for Democratic Rights v Union of India

In this case, an organization dedicated to secure the rights brought a writ

petition under Article 32 complaining about the violations of labour laws during
the construction of stadiums for the Asiad project. Justice P.N Bhagwati stated
that a PIL is filed to enforce the rights of a class of persons whose fundamental
rights are violated, as opposed to ordinary litigation where only the rights of an
individual are considered.

In recent times, the scope of PIL has expanded and is still expanding. PIL is
now not only a tool for addressing the issues of the poor and marginalized but
also for addressing social issues. However, under the traditional definition of
locus standi, problems and issues of public importance were not enforceable in
a court of law.
Currently, PIL deals with a wide variety of issues such as administrative
problems affecting society, socio-economic problems, abuse of power by
authorities, labour rights, and problems relating to the environment.

Although the object of a PIL is for addressing the concerns about the public,
individuals use PIL as a cover to accomplish their selfish goals. The petitioner
must act in good faith, keeping in mind the interest of the public and not to
attain his political, economic, or personal motives. The Supreme Court has
repeatedly warned that PIL must be used with care and caution. The courts may
refuse to accept a PIL if there is an unreasonable delay in filing it. Public
Interest Litigation continues to flourish in India due to the irresponsibility and
lack of accountability by the government.

Possible reasons why people misuse or abuse the concept of PIL

 Tool for harassment

Many people have started using PIL as a tool in order to register false cases to
harass people. This has become easy as it is cheaper to file a PIL, as opposed to
private litigation. The relaxation to have a locus standi has often led people to
pose their private interests as public interests. People have started misusing the
PIL to settle a personal vendetta and serve political or business interests. The
court has warned that PIL should be treated as a “public interest litigation” and
not a “private interest litigation”.

 Professional PIL shops

Solicitor General, Tushar Mehta called PILs, “professional PIL shops” and
called for them to be abrogated. He said that in order to furnish replies for
frivolously filed PILs, government officials end up wasting their precious time
and this can be harmful to the country. On a later date, he also called them “self-
employment generating petitions” on which the court should not waste time.

 Publicity

A lot of times, lawyers, and more recently, law students have tried to use PIL in
order to gain publicity. The court on various events has even gone on to call
these, “publicity interest litigation”. The court stressed how such petitions
instead of fulfilling the objective of PILs damage the public good.

Case laws
The recent years have seen a flood of PILs being filed by law students, lawyers,
and other stakeholders. With the increasing number of PILs filed, a trend has
emerged of filing frivolous petitions which is contrary to the soul of the concept
of PILs. The Supreme Court and High Courts have time and again warned
against such conduct. However, the Covid-19 pandemic only gave rise to the
filing of more such petitions.

 SPV Paul Raj v. The Chief of Electoral Officer and Anr.

The Public Interest Litigation, in this case, was dismissed as follows. The
following are the facts of the case:

 The petitioner prayed that the High Court may apply its power under
Article 226 of the Indian Constitution to issue a writ of Mandamus
directing the respondents to issue orders to conduct compulsory
medical tests of candidates who were contesting in the Tamil Nadu
Legislative Assembly Elections that were in process.
 This was prayed to protect the 6,29,43,512 voters from being infected
with COVID-19.
The court held that there was no basis for such a petition and it was completely
frivolous. It also asked the petitioner to be more responsible before filing such
petitions in court. The petition was dismissed with costs and the petitioner was
banned by the court from filing petitions for a period of one year without taking
prior leave of the Bench.

 Lalit Valecha v. Union of India

A PIL was filed in the Delhi High Court to direct News and TV channels to
follow the Code of ethics and regulations while reporting sensitive content of
mass deaths and suffering. It prayed to curb the spread of negativity by
restraining media channels from broadcasting such news. The petition also gave
the ground that freedom of speech and expression under Article 19 is not
absolute.
The petition was dismissed by the bench and it was pronounced that reporting
the number of deaths to the public is not negative news.

 Pratyush Prasanna and Anr. v. State of NCT of Delhi

The Delhi High Court dismissed a petition which alleged that the Government
of Delhi was misusing public money. The petition prayed for an investigation
into the funds collected by the Delhi Government for Covid-19 relief. The
petitioner made no effort to find out the information using the Right to
Information Act, 2005, and merely relied on a tweet posted by someone else.
The court pulled up the petitioner for not doing any homework before filing the
petition. The petitioner was also asked to pay Rs 50,000 for misusing the PIL.

 Rajeev Suri v. The Delhi Development Authority

The petition was initially filed before the Delhi High Court, but the Supreme
Court transferred it to itself. This petition challenged the possibility of the
Central Vista project and the way clearances were obtained for environment,
heritage, and land use matters. It also called this a matter of high political
significance which required judicial scrutiny.

The Supreme Court lamented and called this a misuse of the concept of PIL. It
reiterated the intention behind PIL and said that PIL was not meant to make the
judiciary the superlative authority over everyday governance but to open the
doors of constitutional courts for those humans who were facing injustice and to
secure their rights.

In the opinion of former Attorney General, Soli Sorabji, three basic rules
should be followed in order to regulate the filing of Public Interest
Litigations. They are:

 Not hearing uncertain and doubtful PILs and rejecting them at the
beginning itself. Also, it is suggested to impose high costs on them so
that they act as a deterrent in the future.
 Petitions which are directed against some socio-economic regulation
or important project after a long time should be outright rejected by
applying the general rules of litigation.
  In order to gain trust, PIL practitioners should be asked to provide
assurance in the form of undertaking to the court that they would
recover the damages, in case the PIL is dismissed.

1. The media should highlight cases of abuse of PIL, just as much as it

glorifies the concept of PIL and its success. By conducting various
kinds of programs and through means of visual media, it can spread
awareness about the abuse of PIL and the punishment given to such
petitioners to create a deterrent effect on others.
2. Lawyers should actively refuse to represent such malicious petitioners.
Discipline and ethics should be strongly emphasized in the profession
and lawyers should not take up to defend such causes which abuse the
PIL.
3. The court should check that the reason for the filing of the petition is
bona fide and is not backed by private interests. It should serve the
manipulated or corrupt.

Conclusion
Public Interest Litigation is an important component of judicial activism. It
strengthens the judiciary to come to the rescue of its people. Hence, it is
pertinent that the concept is wisely used and is not abused to make personal
gains. Recent years have seen examples of such abuse and exploitation of the
PIL, which should serve as a deterrent to prevent similar incidents in the future.
If used in the correct manner and for the right causes, PIL can prove to be an
asset to the people. New ways and methods should be formulated to sieve out
frivolous petitions so that justice is served fairly and well within time. The
Supreme Court has laid down guidelines to be followed with respect to Public
Interest Litigation, courts should keep these rules in mind while dealing with
Public Interest Litigations to avoid frivolous petitions and save time.

4. According to Benjamin Cordozo, “the final cause of law is

the welfare of the society”. Discuss the concept of Judicial
Process as an instrument of Social ordering in India.
 American Judge Benjamin Cordozo, said that “the Last reason for law
is the welfare of society”. Law is the basic rules of the society through
which the social order is maintained.
According to Austin: Law is the command of the sovereign
According to Salmond: Law is the collection of rules which the state recognizes
and applies in the administration of justice.
The purpose and aim of law is to attain justice in society. Justice is an abstract
idea of right and wrong in the society, the measurement of fairness and equality.
Judicial process concept:
To understand what is judicial process in India. We must first
understand what is Justice and the meaning of judicial separately. Justice is an
irrational term. In lay mens term it means absence of fear it comes with lack of
arbitrariness, freedom of liberty and equality and equal access to quick
affordable satisfactory credible dispute settlement forum. Justice in nutshell
means rule of law.
Judicial Means Relating to administration of justice or the function of a Judge.
Therefore, everything done by the judge in the process of attaining justice is
called judicial process.
A judge is the interpreter of the society. He makes visible the various laws.
While interpreting a law, the judge also corrects the errors present in the law, he
supplies the omissions in the law. The main object of law is to bring about
social order and the judges play an important part in attaining that objective.
The judiciary has taken an active role in attaining social order and justice. To
serve the purpose of the social utility, the judge had to play the part of the
legislator as well. A role, which has been much criticized but is very important
for fulfilling the needs of the society.A democracy needs a forum, other than the
legislature and the executive, for redressing the legitimate grievances of the
minorities- racial, religious, political or others. In India, at the present time, the
Supreme Court is laying great emphasis on vindication of the rights of the poor
and deprived people. The court has acknowledged this fact.
Thus, in Punjab Rickshaw pullers‘ case[9], the Supreme Court had stated that
―Judicial activism gets its highest bonus when its order wipes some tears from
some [Link], it can be concluded that judicial process has a very active and
positive role in social ordering.
 Judicial process as an instrument of social ordering

 Article 32: Instrument of Social ordering

Article 32 of the Constitution empowers the Supreme Court to issue directions
or orders or writs for enforcement of any right conferred under the Constitution
for securing social justice
Article 32 of the Constitution of India itself is a fundamental right, which
accorded free hand to the Judicial Process enable the Supreme Court to take
suitable action for the enforcement of social order
The Supreme Court of India has recognised in many landmark judgments that
access to justice is a fundamental right. Indian Judiciary has played an active
role in ensuring access to justice for the indigent persons, members belonging to
socially and educationally backward classes, victims of human trafficking or
victims of beggar, transgender, etc.
Since Independence, the Courts in India have been adopting innovative ways for
redressing the grievances of the disadvantaged persons. In many cases, the
Supreme Court exercised its epistolary jurisdiction and took suo motto actions
on mere postal letters disclosing the human rights violations in society.

In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT 477,

the Apex Court has innovated concept of 'creamy layer test' for securing benefit
of social justice to the backward class, needy people, and excluded persons
belonging to 'creamy layer.'

 BIGAMY

Bigamy is a social evil which often creates social disorder. The Apex Court has
tightened the noose over those avoiding punishment by taking plea of
conversion to Islam. In "Lily Thomas v. Union of India", AIR 2000 S C 1650, it
was held by the Apex Court that the second marriage of a Hindu husband after
conversion to Islam without having his first marriage dissolved under law,
would be invalid, the second marriage would be void in terms of the provisions
of Section 494, IPC and the apostate-husband would be guilty of the offence
punishable under Section 494, IPC. This verdict of the Apex Court would
certainly be helpful in eliminating social evil of bigamy.

 Bride Burning

In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court held that it
would be a mockery of justice if sympathy is shown when cruel act like bride
burning is committed. Undue sympathy would be harmful to the cause of
justice. The Apex Court directed that in such cases heavy punishment should be
awarded.

 Bonded Labourers

Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a good

example of social ordering by way of judicial process. The Apex Court has tried
to eliminate socio-economic evil of bonded labour, including child labour and
issued certain guide lines to be followed, so that recurring of such incidents be
eliminated.

 Caste system and Judicial Process

In "Lata Singh v. State of U. P.", AIR 2006 SC 2522, the Apex Court has given
protection to the major boy and girl who have solemnized inter-caste or inter-
religious marriage.

 Child Labour

In "M.C. Mehta v. State of T.N.", AIR 1997 S C 699, the Supreme Court has
issued direction the State Governments to ensure fulfilment of legislative
intention behind the Child Labour (Prohibition and Regulation) Act (61 of
1986). Tackling the seriousness of this socio-economic problem the Supreme
Court has directed the Offending employer to pay compensation, a sum of Rs.
20,000/ for every child employed.

 Child Prostitution

In Gaurav Jain v. U.O.I. AIR 1997 SC 3021, the Apex court issued directions
for rescue and rehabilitation of child prostitutes and children of the prostitutes.
  Dowry Death

Dowry death is perhaps one of the worst social disorders prevailing in the
society, which demands heavy hand of Judicial Process to root-out this social
evil. In "Raja Lal Singh v. State of Jharkhand", the Supreme Court has laid
down that there is a clear nexus between the death of Gayatri and the dowry
related harassment inflicted on her, therefore, even if Gayatri committed
suicide, S. 304-B of the I. P. C. can still be attracted.

 Female Foeticide and Judicial Process.

Leading to unhindered female infanticide affecting overall sex ratio in various

states causing serious disorder in the society. In "Centre for Enquiry into Health
and Allied Themes (CEHAT) v. Union of India", AIR 2001 S C 2007, the Apex
Court has held that despite the PNDT Act being enacted by the Parliament five
years back, neither the State Governments nor the Central Government has
taken appropriate actions for its implementation. Hence, directions are issued by
the Court for the proper implementation of the PNDT Act, for eliminating this
Social evil.

 Harassment of Woman

The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011) created
law of the land holding that the right to be free from sexual harassment is
fundamental right guaranteed under Articles 14, 15 and 21 of the Constitution.
The Court has issued guidelines to be followed by employer for controlling
harassment of woman at her work place.

 Immoral trafficking

Immoral trafficking has now become a widespread social disorder. This is a

deep rooted social evil has to be controlled. The Apex Court is of the opinion
that accused persons are to be dealt with heavy hands of the Judicial Process in
such cases.

In "State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain", AIR 2008

SUPREME COURT 155 , the Court has rejected application for anticipatory
bail, in a case where a minor girl was driven to flesh trade by accused persons ,
comprised of police officers, politicians and all were absconding for long time.
Judicial Process and Social Order It is satisfying to see that achievements of
Judicial Process in respect of social ordering has been significant . Judiciary has
not shied away from its responsibility of enforcing social order. Looking to the
need of hour and demands of the changing society, the Supreme Court has
innovated various tools and techniques, for securing social order. One can see
how the Supreme Court of India has innovated, case after case, various juristic
principles and doctrines, for upgrading social order. Needless to say that ,
Articles14, 15, 16, 17, 38, 39A and 42 to 47 of the Constitution of India deal
with facets of social justice. Courts have played very wide role in interpreting
the Connection for achievements of social justice.

 Maintenance

In Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945, the Apex Court , for
the first time, granted maintenance to divorced Muslim woman under section
125 Cr. P. C., ignoring her personal law, keeping in view essence of equality
before law.

In "Dimple Gupta v. Rajiv Gupta", AIR 2008 S C 239, the Apex Court has
granted Maintenance to illegitimate child under S. 125 Cr. P.C. This path
breaking judgment has given breath to the innocent children who were victim of
no fault of their own. These verdicts are judicial instruments of social ordering.

 Outraging Modesty of Woman

Outraging the modesty of a woman is a serious social disorder has to be taken

seriously by courts during the course of Judicial Process. In "Kanwar Pal S. Gill
v. State (Admn. U. T. Chandigarh)", the accused slapped on the posterior of the
prosecutrix, Mrs. Rupan Deol Bajaj, an I. A. S. officer , in the presence of other
guests. The accused, who was then the D.G.P. of the State of Punjab. The CJM
convicted him under Sections 354 and 509 [Link] filed by the accused was
dismissed by the Apex Court. That by itself is setting a model for others and it is
a good example in connection to social ordering.

 Rape

In "State of M.P. v. Babulal", AIR 2008 SUPREME COURT 582, the Court has
laid down the principle that rape cases need to be dealt with sternly and
severely. A socially sensitized Judge is a better armour in cases of crime against
women. Once a person is convicted for an offence of rape, he should be treated
with a heavy hand and must be imposed adequate sentence. This goes to show
that how the Supreme Court is keen in eliminating social disorder by the heavy
hands of judicial process.

Conclusion

Justice V. R. Krishna Iyer, has rightly observed that ― Law is not a brooding
omnipotence in the sky but a pragmatic instrument of social order. Judicial
Process is a means of enforcing law. In the light of the above discussion
certainly it it would be perfectly right to say that Judicial Process is an
instrument of social ordering. The prominent work of Indian Courts today may
be seen as prosecuting poor people for petty crime. The main Role of courts
continues to be, as in colonial times to (i) enforce law against (mostly poor)
citizens; (ii) protect property rights(state and private) and (iii) uphold and
protect the authority of state. On the other hand, in the immortal words of
Supreme Court in [Link] Case THE CONSTITUTION has made a
revolutionary change in the role of Indian Courts –from being an arm of the
RAJ to being an instrument of SWARAJ, an ―arm of social revolution‖.

5. What is the Legal Development and Creativity through legal

reasoning under Statutory and Codified system?

Some 65 years ago, there was a UNESCO sponsored survey looking into the
basic source of various legal systems. This reveals that 73 states out of a total of
110 had legal sources called 'Codes' The dictionary of Cambridge defines
'codification' as 'the act or process of arranging something, such as laws or rules
into a system'. The dictionary of Oxford defines 'codification' as 'the act of
arranging laws, rules etc. into a system'.

Legislation, also known as statutory law, is the basic structure of present

legal system of India. Statutory laws are based on the statutes enacted and
imposed by the legislature. A statute is a formal act of the Legislature in
written form. It declares the will of the Legislature.

Advantages of codification:
 Certainty of Law:
'Ignorentia juris non excusat'- ignorance of law is no excuse is a basic
principle of law. This principle has strict application with no exception at
all . The principle is based on Roman maxim 'ignorantia corum quae scire
tenetur non excusat'- Ignorance of those things which everyone is bound
to know excuses not.

On the other hand it will be irrational and inhumane to punish a person

for an act done by him/her believing it to be legal. Both the argument has
their own justification. One of the solution for these issues is the
codification of law. A codified law will makes things easier. Every person
will have a clarity over the law imposed upon him/her and act
accordingly.

 Uniformity:
'Rule of law' is one of the essential features of a well developed legal
system. Arbitrariness should be ruled out in the implementation of law at
any cost. Otherwise the rule won't be qualified as a civilized one and
ultimately will lead to chaos and anarchy. Equals should be treated
equally and unequals unequally says Aristotle.

Equals should never be treated unequally. Until and unless the law is
codified it won't be possible to rule out arbitrariness. Absence of codified
law will makes the implementation of Rule of law optional at the mercy
of the concerned authorities.

 Eliminates Judge made law:

According to Macaulay judge made law in a country where there is an
absolute government and lax morality where there is no Bar and no public
is a curse and scandal not to be endured. According to the structural
functionalism of Almond each organ shall perform it's respective
function, only its function. Judiciary pronouncing judgements creating
new laws, whatever may be the reason for the same either for the public
good is not a sign of healthy political system.

In one respect it shows the incapability of legislative organ and the

dominance of one organ over the other. A codified law prevents the
judiciary from making new legislations and creating new heads of
legislation, some times unnecessarily.
  Provides statutory recognition to natural law:
Natural law, until it is recognised by the legislature will have a little use.
The very basic right to life will also have a little use, if it was not backed
by legislation. All the rights will be at the mercy of the judiciary and
depends on the mood of the judges. Codified law creates obligation on
judges and right to citizens over natural rights.

 Stability:
The most essential component of a law is its public acceptance. No law
will be of any use, if it is not accepted by the people. An unstable and
unnecessarily changing law will hardly be accepted by the people.
Codified law is much stable than law of any other form. A stable only will
be able to gain confidence of its subjects.

Few pre-independent legislation which are still valid and followed in India are:
· Indian Penal Code, 1860
· Indian Evidence Act, 1872
· Indian Contract Act, 1872
· Civil Procedure Code, 1908

· Government of India Act, 1935

Some of the post-independence statutory laws in India are:

· Criminal Procedure Code, 1973
· Motor-vehicle Act, 1988
· Information Technology Act, 2000
· Right to Information Act, 2005

Legal development and creativity through legal reasoning in a statutory and codified system
primarily revolve around the interpretation and application of statutes and codes. In such
systems, the law is primarily derived from written laws enacted by the legislative body.

Here are the key aspects of legal development and creativity in a statutory and codified
system, along with examples and case laws:

1. Interpretation of Statutes:
 In a statutory system, judges are tasked with interpreting the language and
provisions of statutes to determine their intended meaning and scope. This
involves examining the legislative intent behind the law and applying
established principles of statutory interpretation.

Example: In the case of R v. Allen (1872), the defendant was charged with
bigamy, which required the prosecution to prove that the defendant's first
marriage was valid and subsisting. The statute at that time used the phrase
"marry during the lifetime of the husband or wife." The House of Lords
interpreted this phrase to mean "validly marry," rather than "go through a
marriage ceremony." This interpretation expanded the scope of the offense and
allowed the defendant to be convicted.

2. Application of Precedents:

Although a statutory system relies heavily on written laws, prior judicial

decisions can still play a role in shaping legal development. Precedents,
especially those interpreting statutes, serve as guiding principles for future
cases with similar legal issues.

Example: The case of Pepper v. Hart (1993) in the United Kingdom involved
the interpretation of a tax statute. The House of Lords departed from the
general rule that excluded the use of parliamentary debates to interpret
statutes. They allowed reference to parliamentary debates to understand the
background and purpose of the legislation, expanding the scope of statutory
interpretation and allowing a wider range of sources to be considered.

3. Judicial Creativity in Filling Gaps:

In statutory and codified systems, judges may encounter cases where the law
is silent or ambiguous on a particular matter. In such situations, they exercise
judicial creativity to fill these legal gaps by drawing inferences, considering
the legislative intent, and applying general legal principles.

Example: In the case of Donoghue v. Stevenson (1932), the House of Lords

established the modern concept of negligence in the law of torts. The court
held that a manufacturer owes a duty of care to consumers, even in the
absence of a contractual relationship, when the product poses a reasonably
foreseeable risk of harm. This groundbreaking decision filled a gap in the
existing law and led to the development of the tort of negligence.

4. Evolution of Legal Principles:

Statutory and codified systems provide a framework for the development and
evolution of legal principles. Over time, judicial decisions and legislative
amendments contribute to the growth and refinement of legal doctrines and
 concepts. Example: In the United States, the Civil Rights Act of 1964
prohibited discrimination based on race, color, religion, sex, or national origin.
Through subsequent judicial interpretations and landmark cases like Brown v.
Board of Education (1954) and Loving v. Virginia (1967), the scope of civil
rights protection expanded, leading to the development of principles of equal
protection and nondiscrimination.

5. Legislative Amendments:

In a statutory system, the legislature has the power to enact new laws or
amend existing ones to address emerging issues or rectify judicially identified
shortcomings. Legislative amendments can codify judicial interpretations or
change the law based on societal needs and evolving values.

Example: In India, the Supreme Court's decision in Vishaka v. State of

Rajasthan (1997) recognized sexual harassment at the workplace as a violation
of fundamental rights. This judicial activism led to the subsequent enactment
of the Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redressal) Act in 2013, which provided a comprehensive legal framework
for addressing workplace harassment.

In summary, legal development and creativity in a statutory and codified

system involve interpreting statutes, applying precedents, filling legal gaps,
evolving legal principles, and legislative amendments. Through these
processes, judges contribute to the growth and evolution of the law, ensuring
its relevance and adaptability in addressing societal needs. Legal development
and creativity through legal reasoning can occur in both statutory and codified
legal systems.

Let's explore these two systems and provide examples of how legal
development and creativity take place in each:

1. Statutory System:

In a statutory system, the primary source of law is legislation enacted by the

legislature. Judges interpret and apply these statutes to resolve disputes.

Legal development and creativity in this system occur through various

methods:

a. Interpretation of Statutes: Judges often encounter ambiguous or unclear

statutory language. In such cases, they use legal reasoning to interpret the
legislative intent behind the law and apply it to specific situations. The goal is
to give effect to the purpose of the statute while staying within the bounds of
its language.
 Example: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
(1984) is a landmark case in the United States that established the Chevron
doctrine. The court held that when a statute is ambiguous, courts should defer
to a reasonable interpretation by the relevant administrative agency
responsible for enforcing the statute.

b. Filling Legal Gaps:

Statutes may not always cover all possible situations or scenarios. Judges, when
faced with gaps in the law, may use legal reasoning to decide cases based on the
principles of fairness, justice, and public policy. Example: In Donoghue v.
Stevenson (1932), a famous case in the United Kingdom, the House of Lords
established the modern concept of negligence. Though there was no specific
statute on the matter, the court relied on the principle of duty of care to recognize
that manufacturers owe a duty of care to consumers for the safety of their
products.

c. Harmonization of Laws:

In some cases, there might be conflicts or inconsistencies between different

statutes. Judges engage in legal reasoning to harmonize these laws to ensure a
coherent and consistent legal framework.

Example: In the case of Ghaziabad Development Authority v. Balbir Singh

(2004), the Supreme Court of India harmonized two environmental statutes,
the Environment (Protection) Act and the Water (Prevention and Control of
Pollution) Act, to address environmental pollution effectively.

2. Codified System:

In a codified system, laws are consolidated into a single code or

comprehensive legal document. Legal development and creativity in this
system arise through:

a. Interpretation of Codes: Judges engage in legal reasoning to interpret the

provisions of the code and determine its application to specific cases. As codes
encompass multiple areas of law, judges must apply legal reasoning to ensure
consistency and coherence within the code.

Example: The Indian Penal Code (IPC) is a codified criminal law in India. In
the case of State of Punjab v. Major Singh (1966), the Supreme Court
interpreted the provisions of the IPC to determine the mens rea (guilty mind)
required for the offense of murder.
 b. Judicial Refinement: Over time, courts may refine and reinterpret
provisions in the code to adapt to changing societal norms and values. This
process of judicial refinement contributes to the evolution of the law.

Example: In the case of Kesavananda Bharati v. State of Kerala (1973),

mentioned earlier, the Supreme Court interpreted the amending power under
Article 368 of the Indian Constitution to preserve the basic structure of the
Constitution.

c. Bridging Code Gaps:

Similar to the statutory system, judges in codified systems may encounter

situations not explicitly covered by the code. Legal reasoning helps bridge
these gaps and ensure just outcomes.

Example: In the case of Bachan Singh v. State of Punjab (1980), the Supreme
Court of India relied on legal reasoning to establish guidelines for imposing
the death penalty, as the Indian Penal Code did not provide detailed criteria for
sentencing in capital punishment cases.

In both statutory and codified systems, legal development and creativity

through legal reasoning ensure that the law remains responsive to societal
changes, addresses emerging issues, and promotes justice. Through
interpretation, gap filling, harmonization, and refinement, judges play a crucial
role in shaping the law and contributing to its evolution.

6. Critically analyze the role of SC with special reference

to judicial creativity in India. Breifly explain the tools
and techniques of Judicial Creativity with limitations
in present scenario.

The judiciary is granted a high level of importance in democratic countries. The

courts play a crucial role in interpreting the Constitution’s provisions. The
courts serve as the chief interpreter, protector, and defender of the
Constitution’s supremacy. The judiciary must play a critical role in the
understanding and implementation of human rights enshrined in the country’s
fundamental law. As a result, it is important to understand what the judiciary’s
approach to constitutional interpretation should be. In simple terms, it can be
said that the judiciary plays an active role in enforcing the provisions of the
various laws of the country. In several of its landmark judgments, the Hon’ble
Supreme Court of India has held that judicial creativity is the active process of
implementing the rule of law, which is essential for the preservation of a
functioning democracy, and that the active role of the judiciary ensures justice
to individuals, groups of individuals, and society as a whole.[1]

The meaning of Judicial Creativity can be well understood from the above
paragraph. Coming back to Lord Denning’s statement, it can be said that the
statement has multiple dimensions. The first line of the statement –

“It is not within human powers to foresee the manifold sets of facts which may
arise; and that; even if it were, it is not possible to provide for them in terms
free from all ambiguity.”

This sentence potentially brings out the very important problem in the process
of legislation and its interpretation. It points out that any legislature is not
made with divine precision as it is not possible for the legislators to foresee
all the possibilities that may arise. In any case, any kind of factual matrix may
arise and even though there are laws governing the basics, it is not possible for
the legislators to include every possible situation and make laws for each one of
them. It can be safely said that there will be some limitations in a legislation.
Howsoever meticulous a legislation may be, there will always be some
provisions where the judges will need to be creative in interpreting the
provisions in order to apply them in the factual matrix of the case.

Let us take an example – the legislature makes laws relating to maternity, the
laws which are made are directed towards the mother carrying the baby. The
laws are made in order to provide some reliefs to a pregnant woman. Maternity
laws also protect a woman who has just given birth, so that the mother can take
the required care of the baby after it is born. Although, multiple circumstances
can arise which the legislators might not have foreseen while making these
laws.

Situation 1: If a couple has a baby through surrogacy. In this case, there will be
two women in need of protection under these laws – the surrogate and the
woman who will be taking care of the baby after it is born. In this case, the
judges will have to use their creativity to offer justice to both these women.

Situation 2: if due to an unfortunate incident, the mother dies immediately after

the birth of the child. In this case, the father of the child will have to take care of
the new born baby like any other mother. In this case, the privileges offered to a
woman after the birth of her child must also be provided to the father. Although,
if there are no laws governing such situations, the judges will have to again use
their creativity.
It is beyond human abilities to predict the numerous permutations and
combinations that can occur during the actual execution of a particular law, let
alone to account for each one in terms that are clear and unambiguous. As a
result, interpreting laws becomes a never-ending process as new facts and
circumstances emerge.

The Supreme Court of India plays a critical role in shaping the law and
displaying judicial creativity. Judicial creativity refers to the ability of judges to
interpret laws, fill gaps, and develop new legal principles to address emerging
issues and ensure justice. The Supreme Court utilizes various tools and
techniques to exercise judicial creativity and activism in India.

However, it is essential to assess these tools and techniques along with their
limitations in the present scenario.

1. Interpretation:

Interpretation of statutes and the Constitution is a fundamental tool for judicial

creativity. Judges analyze the language, intent, and purpose of laws to derive
meaningful interpretations that adapt to changing circumstances and align with
evolving societal values.

2. Expansion of Constitutional Rights: The Supreme Court, through judicial

creativity, expands the scope and meaning of constitutional rights. By adopting
a progressive and dynamic approach, the Court interprets fundamental rights to
encompass new dimensions and protect marginalized groups.

Example: In the case of Navtej Singh Johar v. Union of India (2018), the
Supreme Court decriminalized consensual same-sex relations, recognizing the
right to privacy and personal autonomy as fundamental rights under the
Constitution.

3. Judicial Activism: Judicial activism involves the active

engagement of the judiciary in addressing societal issues and
shaping public policy. It includes the use of Public Interest
Litigations (PILs) and expanding the traditional boundaries of
judicial review
Example: The Supreme Court has employed judicial activism to protect the
environment, regulate pollution, and safeguard the rights of marginalized
communities. For instance, in the case of MC Mehta v. Union of India (1986),
the Court ordered the closure of polluting industries in Delhi to tackle severe air
pollution.

4. Guideline Formulation:

The Supreme Court formulates guidelines and principles to address

issues that lack specific legislation. These guidelines become
binding on the government and other institutions, ensuring
protection and promotion of rights in the absence of legislation.

Example: In the Vishaka v. State of Rajasthan (1997) case, the

Supreme Court established guidelines to prevent and address
sexual harassment at the workplace until the enactment of the
Sexual Harassment of Women at Workplace (Prevention,
Prohibition, and Redressal) Act, 2013.

5. Public Interest Litigations (PILs):

PILs allow citizens to bring cases to the Court's attention for the
protection of public interest. The Supreme Court, through PILs, has
addressed various issues concerning human rights, environmental
protection, corruption, and access to justice.

Example: The PIL filed in the Bandhua Mukti Morcha v. Union of

India (1984) case led to the Supreme Court recognizing and
addressing bonded labor in India, establishing guidelines for its
eradication. While judicial creativity and activism have
significantly contributed to the development of law and protection
of rights in India.

6. Use of Precedents:

The doctrine of precedent (stare decisis) allows the Supreme Court to

build on earlier decisions and create new legal principles to address
contemporary issues. The court may distinguish or overrule precedents
when necessary to bring about a just and equitable outcome.

Limitations of Judicial Creativity in the Present Scenario:

 1. Separation of Powers: Judicial creativity, while necessary to fill legislative
gaps, may sometimes encroach upon the domain of the legislature, leading to
concerns about the separation of powers.

2. Judicial Overreach: Excessive judicial activism can lead to allegations of

judicial overreach and infringe on the role of the other branches of government.

3. Policy Making: While judicial creativity may lead to policy changes, it is

essential for the court to be cautious not to usurp the role of policy-making,
which primarily lies with the legislature.

4. Judicial Backlog: The extensive use of creative judicial techniques, coupled

with a vast number of pending cases, can contribute to delays in the delivery of
justice. In conclusion, judicial creativity, while essential for the administration
of justice in India, must be exercised judiciously and with due regard for the
principles of separation of powers and the rule of law.

The Supreme Court's role as a creative interpreter and protector of fundamental

rights has played a significant role in shaping Indian jurisprudence and ensuring
justice for all.

7. Explain the Constitutional Significance of doctrine of

precedent in Indian Legal System. Explain merits and demerits.

INTRO

According to Radlich ‘Every Precedent has directive force for future cases of
same or similar nature’. The doctrine of precedent, also known as stare decisis,
is a fundamental principle in the Indian legal system.

It refers to the practice of courts following previously decided cases with similar
facts and legal issues. The doctrine of precedent ensures consistency,
predictability, and stability in the application of law.

Significance of the Doctrine of Precedent in the Indian Legal System:

1. Binding Force:

Precedents set by higher courts are binding on lower courts within their
jurisdiction. This ensures uniformity and consistency in the application of the
law.

2. Predictability and Certainty:

The doctrine of precedent provides predictability and certainty in legal

outcomes. It allows individuals to understand and anticipate how the law will be
applied in similar cases.

3. Promotes Fairness and Justice:

Precedents ensure that similar cases are treated in a consistent manner, avoiding
arbitrariness and promoting fairness and justice.

4. Judicial Efficiency:

Precedents reduce the burden on the judiciary by providing a framework for

resolving similar cases. Courts can rely on established legal principles, saving
time and resources.

5. Development of Law:

Precedents play a crucial role in the growth and development of the law. Over
time, judicial decisions contribute to the evolution of legal principles and
doctrines.

 Constitutional validity of Precedents

The legal doctrine of precedent is expressly recognized by the Indian

Constitution under Article 141 which states that the law declared by the
Honourable Supreme Court of the country will be binding on all courts within
the territory of India.
It must be noted that the phrase “all courts” here refers to all courts other than
the Supreme Court of India, thus it can be read as all lower courts. Based on this
interpretation, the Supreme Court is not bound by its own decisions.

Though there is no express provision, by convention the decisions of all High

Courts are considered to be binding on all the lower courts that fall within its
jurisdiction.

This means that the decisions of a High Court will not be binding on other High
Courts or lower courts beyond its jurisdiction, however, they will continue to
hold a persuasive value.

 Understanding Constitutional validity of Precedents along with some

Relevant Caselaws.

In the landmark case of Vishaka v. State of Rajasthan (1997), the court dealt
with the issue of sexual harassment at the workplace. The immediate cause for
the case was the brutal gang rape of a social worker named Bhanwari Devi, in
Rajasthan.

The court under this case observed that such incidents at the workplace were not
uncommon and there was an urgent need to find an alternative mechanism in
the absence of legislation protecting the fundamental rights of working women.
Such incidents were held to be violative of the fundamental rights
under Articles 14, 15, 21, and 19(1)(g).

Thereafter gudilines for preventing sexual harassment at workplace also called

as VISHAKHA GUIDELINES were passed. The court also explicitly stated that
the guidelines would be binding as declared by Article 141 until legislation is
enacted for this purpose.

These guidelines were used by several courts to decide cases relating to sexual
harassment at the workplace, for over 15 years.
Recognition of the third gender
The issue of non-recognition of the third gender and several forms of
discrimination faced by the transgender community came into discussion in the
case of the National Legal Services Authority v. Union Of India &
Ors. (2014). It was argued that the non-recognition of the identity of the third
gender is a violation of the fundamental rights under Articles 14, 15, 16,
19(1)(a) and 21 of the Constitution.

The Honourable Court recognized the rights of the third gender to be very well
protected under the fundamental rights guaranteed by the Constitution. The
court thus declared the Hijras and Eunuchs to be recognized as a “third gender”
and upheld the transgender persons’ right to decide their self-identified gender.
The court also directed the central and state governments to take several steps to
eradicate the discrimination and problems faced by the members of the
community.

Because of this judgment, the parliament introduced a series of bills recognizing

the third gender and seeking to protect their rights. This finally led to the
enactment of the Transgender Persons (Protection of Rights) Act, 2019. The
2014 judgment is considered to be important as it is the first to legally recognize
non-binary identities and uphold their fundamental rights. This judgment also
persuaded the formulation of the Act protecting the rights of transgender people.

Gender justice – the criminalization of triple talaq

The Honourable Supreme Court, in the case of Shayara Bano v. Union Of
India And Ors. (2017), took into consideration whether the practice of triple
talaq or “instant divorce” is violative of the fundamental rights guaranteed by
the Constitution. After looking into the practice and the Islamic law, it was
established by the court that the practice of triple talaq is not subject to public
order, morality, or health as required under Article 25(1). The court further held
that the practice of ‘talaq-e-biddat’ clearly violates the fundamental rights
expressed under Articles 14,15 and 21 of the Constitution.

After the court declared the practice to be unconstitutional and a criminal

offence, the President of India issued the Muslim Women (Protection of Rights
on Marriage) Ordinance, 2018. This Ordinance not only declared the practice to
be void but also a criminal offence. Section 4 of the Ordinance also made the
practice punishable with up to 3 years of imprisonment and a fine.
Subsequently, the parliament passed the Muslim Women (Protection of Rights
on Marriage) Act, 2019 based on the Ordinance.

The carefully taken decision of the Supreme Court to hold the infamous practice
to be unconstitutional and illegal, influenced the parliament to formulate a
statute declaring the practice illegal and specifying the punishment. The statute
also takes into consideration several violations of the fundamental rights of
Muslim women and seeks to protect them.

Kesavananda Bharati v. State of Kerala (1973) In this landmark case, the

Supreme Court held that the Parliament's power to amend the Indian
Constitution under Article 368 is not unlimited. The decision established the
basic structure doctrine, which states that certain essential features of the
Constitution cannot be amended. Subsequent cases have consistently followed
this doctrine as a binding precedent.

Olga Tellis v. Bombay Municipal Corporation (1985) In this case, the

Supreme Court recognized the right to livelihood as a fundamental right under
Article 21 of the Indian Constitution. This judgment set a precedent and formed
the basis for subsequent decisions protecting the rights of slum dwellers and
pavement dwellers facing eviction.

Maneka Gandhi v. Union of India (1978): The Supreme Court expanded the
scope of the right to personal liberty and held that the procedure established by
law must be fair, just, and reasonable. This decision set a precedent for
interpreting the fundamental rights guaranteed under Article 21 of the Indian
Constitution

Conclusion
The good judicial precedents set by the courts have had a huge impact on the
formulation of the recent laws. In addition to guiding the lower courts while
deciding similar cases in the future, the precedents also contributed largely by
guiding the parliament to make laws. They often bring into focus certain areas
that are in urgent need of legal governance. They shed light on the violation of
the rights of several groups that require legal protection.

Therefore, the judges play an important role in laying down important

precedents, which are also called judge-made laws. The role and significance of
such decisions have increased over time and highly contributed to the formation
of several recent legislations.

8. Explain the concept of Dharma in Indian thought. How far the

notion of Dharma reflects in Indian Legal System.

Dharma, in concept, deals with duty, religion, and inseparable quality of a thing
or orders i.e. virtuous conduct of righteous man, and dharma in literal sense
means ‘something which sustains or upholds’. In Jurisprudence, Dharma would
be referred to as the Indian version of Natural Law.

Dharma is primarily based on the Vedas and has many indices such as Sruti,
Smriti, and moral laws (Samachar) and governed the lives of people in ancient
times.

Dharma shapes the fundamental establishment of Indian law. Due to its

importance in Hindu practices, Dharma accepted a significant part in shaping
Indian law. Dharma was a duty-based legal system that is every individual owed
a duty to other members of society.

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 is the interpretation of Vedas and four sages that have
propounded the dharmasastras and are called Smritikars. They are:

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 gods, sages, and kings and
detailed descriptions of yugas. All the sources are on the same footstep and no
one has supremacy over the other.

The idea which made people adhere to the Dharma can be illustrated by one
verse from Brihadaranyaka Upanishad 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.

 Reflection of Dharma in Indian Legal System

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. (compare with
constitution)
Article 21- Right To Life[15]
The article needs special mention as the Supreme Court has been interpreting
this article according to the cases and has widened the ambit many folds to
cover right to livelihood[16], life is more than mere animal existence[17], right
to legal aid[18], Rights to dignity of a convict[19] and much more but does not
include Right to die[20]. Article 21 is ever growing not bound by time and
place. Like Dharma included every aspect and facet of human life whether
internal or external and provided a law to govern it and safe-guard; the same is
been done by Article 21 with the help of other fundamental rights. Article 21 is
large and wide and has a potential to confer every basic human right that one
needs to live a life of a dignified human.

Evolving ‘Concept Of Dharma’

The concept of dharma or simply dharma has been used by various
courts in helping them to arrive at decisions even by the Honourable Supreme
Court in many cases. One of the important cases is Shri A.S. Narayana
Deekshitulu vs State Of Andhra Pradesh & Ors[21], which elaborately discusses
the questions related to Dharma, ‘what is dharma?’, ‘Is Dharma same as
Religion?’ And every answered each and every doubt. Dharma as said above is
distinct from religion.

Dharma even regulates the law today, by means of morality in and outside the
courts as in the Secretary, Ministry Of Information & Broadcasting v. Cricket
Association of Bengal & ANR.[22].

In Dattatraya Govind Mahajan vs. State of Maharashtra[23], the court talks about
the Dharma of the Constitution, and the karma of adjudication.
Dharma thought to be an orthodox area is used in the cases much unorthodox
prime facie such as rights to transgenders[24].
Dharma is been used by the courts as prestigious as Constitutional benches and
used in place and equivalent of duty and truth and even the flag contains the
dharma chakra of Ashoka[25].
The courts have interpreted articles 25 and 26, in line with Dharma, they have
said when the articles are read and religion means Dharma that is co-existence
with welfare of others[26], not an orthodox view.
The concept of dharma as said earlier is fully explored in Narayana Deekshitulu
vs State Of Andhra Pradesh & Ors[27], there is a comparison between the
constitutional laws and Raja Dharma, the definition of dharma is tried to be
clarified by using different verses from everywhere, ‘Dharma in context of Rajya
only means law’ and Dharma is secular or maybe the most secular.
The same view is held until now, by all the courts and is not disputed that Dharma
is an eternal bliss, which has seen many par and parcels of human life, mortals,
but remained immortal.
In DattatrayaGovindMahajanvsState of Maharashtra
, the court talksabout the Dharma of the Constitution, and the karma of
adjudication.

Dharma thought to be an orthodox area, is used in the cases much
unorthodoxprime facie such as rights to transgender in
NLSA vsUnion of India &Ors
.

The courts have interpreted articles 25 and 26, in line with Dharma, they
havesaid when the articles are read and religion means Dharma that is co-
[Link] welfare of others in
ShirishChristian vsMM Gameti& Ors
, not anorthodox view.

Dharma has been used by the courts as prestigious as Constitutional benchesand
used in place and equivalent of duty and truth and even the flag containsthe
dharma chakra of Ashokain
N. P. Amruteshand Another vsState ofKarnataka and Others
.
Also various laws in India are were framed even during british times after
considering values of DHARMA in INDIA.

For eg: ADULTERY

SENIOR CITIZENS ACT

HINDU ADOPTION AND MAINTENANCE ACT

It was considered as dharma to respect women in ancient India. Disrespect of

Draupadi led to adharma and eventually MAHABHARAT took place. Similary
we could see reflection of same dharma in our Modern Indian legal system as
follows.

Right to equality,

fundamental duty article 51A(e) to renounce practices derogatory to the dignity

of women.

Various sections of IPC 354 etc

Maternity benefit act

Prevention of sati act

Prohibition of dowry act

Posh act

CONCLUSION

Dharma and law as seen above may seem to be in contrast, but the ideology
behind them is same. At large, law is a part of Dharma without disharmony and
they constitute single integrated whole. Dharma on one hand is taken to be
religious in recent society but in reality Dharma is duty and moral conscience.

The Hon’ble Supreme Court in many cases defined Dharma and its relation with
morality and Indian Secularism. Dharma has been and is guiding our conduct,
moralities and laws in varying degree.

One may not find any relation between the two on the face but on a deep
analysis both are interrelated integrated whole. May be the perception of people
is changed now regarding Dharma but objective of Dharma is still same.

Only path became different. When Dharma loses its identity or become
diversified, justice serves Nyaya to protect the Dharma. Justice is not merely
right determination and adjudication of disputes and enforcement of Law, but is
so comprehensive in its meaning and import that it takes within its ambit the
whole of political, social, juristic and moral idealism. It is so, because Justice
has reference to the whole of human existence which we want to realize by our
thought, will and action.

The mystery of Justice cannot be unravelled by human reason, logic or language

completely. It has greater appeal to human soul. Justice as reality is only fully
reflected in our conscience and felt through our intuition. In today's world it can
be said that we are facing problem like forceful conversion, terrorism, riots etc.
only because of Dharma but the truth is these problems are being faced because
we already have forgotten the real meaning of Dharma.

But it is also truth that still morality, duty, rule of law are first priority of human
being to create a civilized society which shows that Dharma shaped in recent
system of governance in an implied manner. ‘Dharma’ is one of the many
sources of modern law and is shaping society. Hence it can be said that Dharma
and law are closely related and interwoven.

9. The object of law is to achieve justice which gives recognisition

to dignity and decency of every individual. Critically discuss the
notion of judicial activism in the light of sunil batra v delhi
administration case.

One renowned American Judge said that “the Last reason for law is the welfare
of society”. Law is the basic rules of the society through which the social order
is maintained.
According to Austin: Law is the command of the sovereign
According to Salmond: Law is the collection of rules which the state recognizes
and applies in the administration of justice.
The purpose and aim of law is to attain justice in society. Justice is an abstract
idea of right and wrong in the society, the measurement of fairness and equality.
The Indian Constitution is one of the only ones in the world to address every
aspect of the general population. The Constitution's authors understood the
importance of treating people with respect and valuing them; therefore, they
incorporated the phrase "human dignity" into the Preamble of the Indian
Constitution.

The Constitution established various rights, including the rights to equality,

freedom, protection from exploitation, freedom of religion, freedom to cultural
and educational opportunities, and constitutional remedies, which cover the
most sacred, fundamental, common, and inalienable rights. The Constitution
guarantees all people their fundamental rights without exception. Human
dignity is upheld and preserved by the protection of fundamental rights.

The Indian Constitution's most fundamental and prominent article is Article 21.
Because it can be used against the State, the citizens extensively use this article.
Every human life is precious and lovely. One must show respect for one's
human dignity. In this way, it is recognized by everyone and contributes to
developing a moral vision for society.

Human dignity is not explicitly addressed in the Constitution. According to

Article 21 of the Indian Constitution, the right to life and personal liberty
includes the right to a life worthy of human dignity. It encompasses all aspects
of life that contribute to making a man's life meaningful and deserving of life. It
is the fundamental premise without which we cannot live as individuals. Life
has a far broader meaning than merely going about daily business while
physically active or relaxing; it also includes having the choice to live with
dignity.

Every other right specified in the Indian Constitution is accorded fundamental

importance by Article 21. The right to life, often known as the inalienable
human right, is a well-known fundamental right and is not a gift from nature,
according to Justice JS Verma. The rights that come naturally with being a
human are known as human rights. These rights have their roots in natural law,
which is supported by natural rights. These include the fundamental principles
of a few rights, for instance, the right to be free from torture and other cruel,
inhumane, or degrading treatment or punishment, the right to practise one's
religion as one sees fit, the freedom to move around, the freedom from slavery
or servitude, and adequate access to food and shelter.

JUDICIAL ACTIVISM
Judicial activism and fundamental rights jurisprudence In India,
The judiciary has developed the fundamental rights jurisprudence while giving
the liberal interpretation to the ‘right to life and personal liberty’. In its
landmark judgments, the Supreme Court recognized prisoners’ rights including
access to court and legal facilities, right to meet his or her family relatives and
friends,freedom of speech and expression, right to compensation,mental
privacy,etc.
Judicial activism happens when the courts have power to review the State
action. Article 13 read with Articles 32 and 226 of the Indian Constitution gives
the power of judicial review to the higher judiciary to declare, any legislative,
executive or administrative action, void if it is in contravention with the
Constitution. The power of judicial review is a basic structure of the Indian
Constitution.
Article 32 of the Indian Constitution gives right to every individual to move
directly to the Supreme Court of India for the enforcement of his or her
fundamental right. Article 32 confers power on the Supreme Court to issue any
order or writ for the enforcement of any of the fundamental rights.
The Supreme Court in Fertilizer Corporation Kamgar Union v. Union Of India
held that the power of the Supreme Court under Article 32 is an integral part of
the basic structure of the Indian Constitution “because it is meaningless to
confer fundamental rights without providing an effective remedy for their
enforcement, if and when they are violated.”

 The case of Sunil Batra v. Delhi Administration & Others stands out as
one of an important landmark judgment which helped to secure the
Fundamental Rights of Prisoners.

The petitioner Sunil Batra was convicted of a death sentence at Tihar

central jail he wrote a letter to the supreme court judge relating to the
pathetic and adverse treatment which was given by the jail authorities.
 In the letter, Sunil Batra stated he was assaulted and tortured by the
prison authorities. Due to that, he suffered an anal injury. He mentioned
in the letter that these all acts were done for the sake of extracting money
from the victim’s relatives. The letter which was written by the petitioner
was revised into a Habeas Corpus proceeding and further refined as
Public Interest Litigation.
 After collecting the information Amicus Curiae reported that the
petitioner has sustained serious anal injury because of a rod. In that
 report, they mentioned that all acts were done because of the unfulfilled
demand for money from the prison authorities.
 Prison authorities tried to cover up the matter by stating the injury which
was sustained by the petitioner is due to piles but if we see at the actual
scenario it was not.

In this case, the Supreme court held that, vis-a-vis Article 32 and Article
226, it had the power to intervene and restore the fundamental rights of
prisoners. That is, it was completely within the authority of the
honourable court to intervene and protect prisoners from harsh or
inhuman treatment.

Also, it was made clear that during the prisoner’s time in jail, the jail
authorities do not have any rights to punish, torture or in any way
discriminate against them without the explicit permission or orders of the
court. Only the court had that right.

It is no more open for debate that convicts are not wholly denuded of
theirfundamental rights. Prisoners are entitled to all constitutional rights.
The Hands-offdoctrine was completely abolished.

In this case, the Supreme Court of India expanded the scope of prisoners'
rights by declaring that the imposition of solitary confinement without
procedural safeguards violated the right to life and personal liberty under
Article 21 of the Constitution.

10. Judicial Review (Short Notes)/ judicial review is basic feature

of Indian Constitution and if taken away it would subverge the
constitution . explain in light of grounds of judicial review.

The power of judicial review was first introduced in the supreme court in the
case of Marbury v. Madison (1803)
Meaning;
Judicial review is the process by which a court declares an unconstitutional law
invalid or void. Judicial review empowers the judiciary to keep up with the
check and balance system between the judiciary, executive and legislature, by
reviewing the legislations passed by parliament, and invalidate it, if it does not
comply with the provisions of the Constitution.

Importance of Judicial Review:

It ensures the Protection of Fundamental Rights Guaranteed by the Constitution,

It maintains the supremacy of the Constitution,

It also regulates the Center-State matters and their relations by Art. 246 of the
constitution, by providing the 3 constitutional lists.

It safeguards the Independence of Judiciary,

It guarantees Impartiality and Fairness in the actions of the Legislature and

Executive,

It protects the basic structure of the constitution as well.

Golakh Nath case

In I. C. Golaknath & Ors vs. State Of Punjab & Anrs. (1967), there was a
challenge made to three constitutional amendments, namely- the first
(1951), fourth (1955) and seventeenth (1964). The Hon’ble Supreme Court
asserted that Parliament has no authority under Article 368 to change the
Constitution or to take away or restrict fundamental rights.

Keshavananda Bharati case

In Keshavananda Bharti vs. State of Kerala (1973), a challenge was made to

the 24th (1971) and 25th (1971) Constitutional Amendments. A 13-bench judge
was formed to attend the case, and with a 7 : 6 ratio, the Court deduced that:
 1. Article 368 of the Constitution provides the President with the power
to bring about changes in the Constitution.
2. Ordinary laws and constitutional amendments are not the same thing.
3. The core structure of the Constitution cannot be toppled with or
amended by the Parliament.

Limitations of Judicial Review:

 Judicial Review limits the actions of the government as, it is only

permitted to verify the legality of the procedures used to reach to a certain
legal decision
 The judicial pronouncements given by the judges for one case, becomes
the basis for deciding other cases as well.
 Repeated court intervention can undermine people's confidence, belief
and support in government's integrity, quality and effectiveness.
 The judiciary is deemed from interfering in the political questions,
policies and matters except absolutely essential.
 Since, the judgments can be influenced by personal or selfish
motivations, such decisions are detrimental to the general public.
 If the courts assume full and arbitrary control over judicial review, it will
result in government agencies providing poor performances.
 In India, attention is paid to the separation of functions, rather than
focusing on the separation of powers.
 The concept of separation of powers is not strictly followed in the judicial
review. However, to ensure this, a system of checks and balances has
been introduced, empowering the judiciary to strike down or overturn any
laws and orders passed by the legislature that is unconstitutional.

Additional Question : Grounds of Judicial Review

These grounds of judicial review were developed by Lord Diplock in Council of
Civil Service Union v. Minster of Civil Service[i]. Though these grounds of
judicial review are not exhaustive and cannot be put in watertight compartments
yet these provide sufficient base for the courts to exercise their review
jurisdiction over administrative action in the interest of efficiency, fairness and
accountability.

1. Jurisdictional Error
The term “jurisdiction” means “power to decide”. The jurisdiction of the
administrative authority depends upon facts the existence of which is necessary
to the initiation of proceedings & without which the act of the Court is a nullity.
These are called “jurisdictional facts”. This ground of judicial review is based on
the principle that administrative authorities must correctly understand the law and
it limits before any action is taken. Court may quash an administrative action on
the ground of ultra vires in following situations.

Lack of Jurisdiction:
It would be a case of “lack of jurisdiction” where the tribunal or authority has no
jurisdiction at all to pass an order. Court may review an administrative action on
the ground that the authority exercised jurisdiction which did not belong to it.
This review power may be exercised inter alia on following grounds:

i) That the law under which administrative authority is constituted and

exercising jurisdiction is itself unconstitutional.

ii) That the authority is not properly constituted as required by law.

iii) That the authority has wrongly decided a jurisdictional fact and thereby
assumed jurisdiction which did not belong to it.

In Rafiq Khan vs. State of U.P[ii]., Panchayat Raj Act, 1947, did not empower
the Sub- Divisional Magistrate to modify the order of conviction & sentence
passed by a Panchayat Adalat. He could either quash the entire order or cancel
the jurisdiction of the Panchayat Adalat. The magistrate maintained the
conviction of the accused in respect of one of the offences only & quashed the
conviction in respect of other offences. The Allahabad High Court quashed the
conviction in respect of other offences by a writ of certiorari.
In R. vs. Minister of Transport[iii], the Minister had no power to revoke a license.
The order of the minister revoking the license, was thus, held to be passed without
jurisdiction & hence ultra vires.
Excess of Jurisdiction:
This covers a situation wherein though authority initially had the jurisdiction but
exceeded it and hence its actions become illegal. This may happen under
following situations:
i) Continue to exercise jurisdiction despite occurrence of an event
ousting jurisdiction.

ii) Entertaining matters outside its jurisdiction.

In R vs. Richmond upon Thames Council ex parte McCarthy & Stone Ltd[iv]., the
local planning authority implemented a scheme of charging 25 pound for informal
consultation between corporation officers & property developers. The House of
Lords held that imposition of the charge was unlawful. Such a charge was neither
incidental to the planning function of the local authority, nor could a charge be
levied on the public without statutory authority. The council had misconstrued its
powers & accordingly, acted ultra vires.
Abuse of Jurisdiction:
All administrative powers must be exercised fairly, in good faith for the purpose
it is given, therefore, if powers are abused it will be a ground of judicial review.
In the following situations abuse of power may arise:

 Improper purpose:
Administrative power cannot be used for the purpose it was not given. In Attorney
General vs. Fulham Corporation[v], the authority was empowered under the
statute to establish washhouses for the non-commercial use of local residents. The
Corporation decided to open a laundry on a commercial basis. The Corporation
was held to have acted ultra vires the statute.
 Error apparent on the face of the record :
An error is said to be apparent on the face of the record if it can be ascertained
merely by examining the record & without having to have recourse to other
evidence. In Syed Yakoob vs. K.S. Radhakrishnan[vi], the Supreme Court
explained, there would be a case of error of law apparent on the face of the record
where the conclusion of law recorded by an inferior tribunal is:
1. Based on an obvious misinterpretation of the relevant statutory
provision,
2. In ignorance of it,
3. In disregard of it,
4. Expressly founded on reasons which are wrong in law
 Non-consideration of relevant material:
In exercising discretion, a decision-maker must have regard to relevant matters &
disregard irrelevant matters. In R vs. Somerset County Council, ex p Fewings[vii]
the local authority decided to ban stag hunting on land owned by the council &
designated for recreational purposes. The Court of Appeal accepted that in some
circumstances, stag hunting could legitimately be banned. Animal welfare &
social considerations were relevant matters to take into account.
 In bad faith:
Where a decision –maker has acted dishonestly by claiming to have acted for a
particular motive when in reality the decision was taken with another motive in
mind, he may be said to have acted in bad faith. In R vs. Derbyshire County
Council, ex p Times Supplements[viii], the local education authorities were under
a duty to advertise vacancies in a manner likely to bring it to the notice of persons
who are qualified to fill the post. Articles published in that paper were critical of
the education authority. The council decided to stop advertising vacancies in The
Times despite the fact that these publications were read by the greatest number of
potential applicants. The papers sought judicial review. DC held that the council’s
decisions had been made in bad faith. They had not been taken on educational
grounds but were motivated by vindictiveness towards the paper.
 Fettering discretion:
An authority may act ultra vires if, in the exercise of its powers, it adopts a policy
which effectively means that it is not truly exercising its discretion at all. In H
Lavender & Sons Ltd vs. Minister of Housing & Local Government[ix], Lavender
had applied for planning permission to extract sand & gravel from high grade
agricultural land. The local planning authority refused permission & lavender
applied to the Minister of Housing & Local Government. The appeal was
dismissed; the Minister of Housing & Local Government being persuaded by the
Minister of Agriculture that such land should be preserved for agricultural
purposes. The decision was set aside. The minister was entitled to have a policy
but, in reality the minister’s decision had been based solely on another minister’s
objection. The minister, therefore, did not open hi mind to Lavender’s application
& thereby fettered his discretion.

Irrationality (Wednesbury Test)

A general principle which has remained unchanged is that discretionary power
conferred on an administrative authority is required to be exercised reasonably. A
person in whom is vested a discretion must exercise his discretion upon
reasonable grounds. A decision of the administrative authority shall be considered
as irrational if it is so outrageous in its defiance to logic or accepted norms of
moral standard that no sensible person, on the given facts and circumstances,
could arrive at such a decision. Irrationality as a ground of judicial review was
developed by the Court in Associated Provincial Picture House v. Wednesbury[x],
later came to be known as “Wednesbury test” to determine ‘irrationality’ of
administrative action. The local authority had the power to grant licenses for the
opening of cinemas subject to such conditions as the authority ‘thought fit’ to
impose. The authority, when granting a Sunday licence, imposed a condition that
no children under the age of 15 years should be admitted.
The applicants argued that the imposition of the condition was unreasonable
and ultra vires the corporation’s powers. Stating that the Court should not
substitute its view for that of the corporation the court observed: interference
would not be permissible unless it is found that the decision was illegal or suffered
from procedural improprieties or was one which no sensible decision maker
could, on the material before him and within the framework of law, have arrived
at it. The Court would consider whether relevant matters were not taken into
account or whether the action was not bona fide or whether the decision was
absurd.
In Roberts vs. Hopwood[xi], the council, in adopting a policy of paying higher
wages than the national average for its workers, was unreasonable, for the
discretion of the council was limited by law. It was not free to pursue a socialist
policy at the expense of its rate payers.
In R v Broadmoor Special Hospital Authority ex parte S[xii], the Court of Appeal,
dismissing an appeal from an application for judicial review, ruled that the
hospital’s policy of conducting routine and random searches of patients without
their consent was lawful. The applicants had claimed that the power to search
could not be implied into the Mental Health Act 1983, and that, if such power
existed, it was irrational and its exercise unlawfully fettered the hospital’s
discretion because it was not subject to any exception or medical grounds. The
Court of Appeal upheld the finding of an implied power of search, ruling that it
was consistent with a ‘self-evident and pressing need’ to enable the hospital to
fulfill its primary function of treating patients and ensuring a safe and therapeutic
environment for both patients and staff. Since the hospital’s policy was in the
interests of all, it had to be permitted to override medical objections raised in
individual cases.
A decision by an authority may also be unreasonable if conditions are attached to
the decisions which are difficult or impossible to perform. Where an authority
makes a decision which is in part good, but in part bad the court may either
invalidate the entire decision or sever the bad part of the decision from the good.

The decision in Agricultural Horticultural and Forestry Industry Training Board

v Aylesbury Mushrooms Ltd[xiii] illustrates the principle. There, the Training
Board was under a mandatory statutory duty to consult certain organizations and
trades unions before reaching a decision. The Board failed to consult the
Mushroom Growers Association. The court held that the decision was good, and
could remain, in relation to those associations which had been consulted, but bad
in relation to the Mushroom Growers Association, and that the Board had a duty
to reconsider their decision after consultations with the Association. In applying
this test court would not apply ‘strict scrutiny’ and would not judge adequacy or
sufficiency of the material unless fundamental rights are violated, and would not
substitute its judgment with the judgment of the administrator unless the decision
is perverse. If the action of the administrative authority violates any of these
principles court can quash such action as violative of Articles 14, 19 or 21 of the
Constitution.
The Delhi High Court in Neha Jain vs. University of Delhi[xiv], holding that that
cancellation of examination & debarring the student for next exams as
disproportionate punishment for adopting unfair means in the examination,
substituted cancellation of only one paper as sufficient punishment Since the
basic requirement of article 14 is fairness in action of the State, and non-
arbitrariness in essence and substance, being the heart of fair play, judicial
interference with policy decision is permissible:
 If the decision is shown to be patently arbitrary, discriminatory or
mala fide[xv].
 If it is found to be unreasonable or violative of any provision of the
Constitution or any other Statute[xvi].
 If it can be said to suffer from any legal infirmity in the sense of its
being wholly beyond the scope of the regulation-making
power[xvii].
 If it is demonstrably capricious or arbitrary & not informed by any
reason[xviii].
Irrationality applied to a decision which is so outrageous in its defiance of logic
that no sensible person who had applied his mind to the question to be decided
would have arrived at it.

Procedural Impropriety
Failure to comply with procedures laid down by statute may invalidate a decision.
Procedural Impropriety is to encompass two areas: failure to observe rules laid
down in statute; and a failure to observe the basic common law rule of natural
justice. In Bradbury v Enfield London Borough Council [xix], the Education Act
1944 provided that, if a local education authority intends to establish new schools
or cease to maintain existing schools, notice must be given to the minister,
following which, public notice must be given in order to allow interested parties
to comment. The Council breached the requirement of public notice and the
plaintiffs sought an injunction. The Council claimed that educational chaos would
occur if they were required to comply with the procedural requirements. That plea
met with little sympathy in court.
In the Aylesbury Mushroom case[xx], the court ruled that the statutory
requirements of consultation with organizations or associations which
represented substantial numbers of people could not be avoided by consultation
with the largest representative body of all agricultural horticultural and forestry
industry, workers – the Nation Farmers’ Union. The Board claimed that
consultation with the Nation Farmers’ Union involved consultation with all
smaller representative bodies; a claim rejected by the court. For true consultation
to take place in accordance with law there must be communication with the
representative organizations and the opportunity given of responding thereto,
without which ‘there can be no consultation’. In Aylesbury Mushroom, the
Mushroom Growers Association was not bound by the order, although the order
remained effective as against those who were consulted. It is a fundamental
requirement of justice that, when a person’s interests are affected by a judicial or
administrative decision, he or she has the opportunity both to know and to
understand any allegations made, and to make representations to the decision
maker to meet the allegations. The principles of natural justice which are imposed
by the courts comprise two elements:
 Audi alteram partem (hear both sides)
 Nemo judex in causasua (there should be an absence of bias with no
person being a judge in their own cause).
The essence of justice lies in a fair hearing. The rule against bias is strict: it is not
necessary to show that actual bias existed; the merest appearance or possibility of
bias will suffice. The suspicion of bias must, however, be a reasonable one.

In Pinochet case[xxi], extradition proceedings against the former Chilean Head

of State were challenged on the basis that one of the Law Lords, Lord Hoffmann,
had links with Amnesty International, the charitable pressure group which works
on behalf of political prisoners around the world, which had been allowed to
present evidence to the court. It was accepted that there was no actual bias on the
part of Lord Hoffmann, but there were concerns that the public perception might
be that a senior judge was biased. As a result, the proceedings were abandoned
and reheard by a new bench of seven judges.
The courts have long been struggling with the distinction between ‘judicial’ and
‘administrative’ functions in an attempt to bring the ever- expanding
administration of government departments under judicial control. Two lines of
thought were apparent. The first emphasized the distinction between a body
which was exercising powers under restrictive rules and a body which was
conferred with a wide measure of administrative discretionary power. The second
line of thought placed great weight on the absence of any true distinction between
judicial and administrative functions, regarding the former as but a specialized
form of the latter.

Ridge v Baldwin [xxii]represents a classic case which reveals judicial insistence

on procedural fairness irrespective of the type of body determining a
question. Ridge, the Chief Constable of Brighton, had been suspended from duty
following charges of conspiracy to obstruct the course of justice. Despite Ridge
having been cleared of any allegations against him, the Judge made comments
which were critical of Ridge’s conduct. Subsequently, Ridge was dismissed from
the force. Ridge was not invited to attend the meeting at which the decision to
dismiss him was reached, although he was later give an opportunity to appear
before the committee which confirmed its earlier decision. Ridge appealed to the
Home Secretary, who dismissed his appeal. Ridge then sought a declaration that
the dismissal was ultra vires, on the basis that the committee had violated the
rules of natural justice. The decision in Ridge v. Baldwin is also important
because it emphasizes the link between the right of a person to be heard and the
right to know the case brought against them.
Proportionality
Proportionality means that the administrative action should not be more drastic
than it ought to be for obtaining desired result. Proportionality is sometimes
explained by the expression ‘taking a sledgehammer to crack a nut’. Thus this
doctrine tries to balance means with ends. Proportionality shares space with
‘reasonableness’ and courts while exercising power of review sees, ‘is it a course
of action that could have been reasonably followed’. Courts in India have been
following this doctrine for a long time but English Courts have started using this
doctrine in administrative law after the passing of the Human Rights Act, 1998.
Thus if an action taken by the authority is grossly disproportionate, the said
decision is not immune from judicial scrutiny. The sentence has to suit the offence
& the offender. It should not be vindictive or unduly harsh.
In Hind Construction Co. vs. Workmen[xxiii], some workers remained absent
from duty treating a particular day as holiday. They were dismissed from service.
The industrial tribunal set aside the action. This court held that the absence could
have been treated as leave without pay. The workmen might have been warned
and fined. The Court said that it was impossible to think that any reasonable
employer would have imposed the extreme punishment of dismissal on its entire
permanent staff in this manner. The court explained that the punishment imposed
the workmen was not only severe but out of proportion.
In Sardar singh vs. Union of India[xxiv], a jawan, serving in the Indian Army was
granted leave. While going to his home town, he purchased 11 bottles of rum from
the Army canteen, though he was entitled to carry only 4 bottles. In the Court
Martial proceedings instituted against him on that ground, he was sentenced to
undergo R.I. for 3 months and was also dismissed from service. The Supreme
Court set aside the punishment & held the action taken against the appellant as
arbitrary & punishment as severe. The doctrine of Proportionality is an important
principle. It enables the Courts to check the possible abuse of discretionary power
by the Executive. Though there is much common substance in the principles of
Irrationality & Proportionality, the latter, however, requires the Court to judge
whether the action taken was really needed as well as whether it was within the
range of courses of action that could reasonably be followed.
In Management K. Tea Estates vs. Mazdoor Sangh[xxv], the workmen of the tea
estates, alleged to have entered the estate armed with deadly weapons with a view
to gherao the Manager & others in regard to their demand for bonus, caused
damage to property of the estate & wrongfully confined the Manager & others.
Punishment of dismissal of concerned workmen dehors the allegation of
allegation of extortion was held to be not disproportionate to the misconduct
proved against them.
The Supreme Court has always maintained that it would employ the doctrine of
Proportionality to test the validity of an administrative action only when the
Fundamental Rights of the aggrieved person are disproportionately violated by
the administrative authority.

Legitimate Expectations
A legitimate expectation will arise in the mind of the complainant wherever he or
she has been led to understand — by the words or actions of the decision maker
– that certain procedures will be followed in reaching a decision. A Legitimate
Expectation amounts to an expectation of receiving some benefit or privilege to
which the individual has no right. Legitimate Expectation means expectation
having some reasonable basis. The doctrine of Legitimate Expectation has
evolved to give relief to the people when they are not able to justify their claims
on the basis of law in the strict sense of the term they had suffered civil
consequences because their legitimate expectation has been violated. Two
considerations apply to legitimate expectations. The first is where an individual
or group has been led to believe that a certain procedure will apply. The second
is where an individual or group relies upon a policy or guidelines which have
previously governed an area of executive action.

In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators

Association[xxvi], the corporation had given undertakings to the taxi drivers to
the effect that their licenses would not be revoked without prior consultation.
When the corporation acted in breach of this undertaking, the court ruled that it
had a duty to comply with its commitment to consultation. A public body may
act in a manner which creates an expectation in the mind of a person or body.
In R v Secretary of State for Health ex parte U Tobacco International Inc.[xxvii],
the company had opened a factory in 1985 with a govt. grant, for the production
of oral snuff. The government made the grant available notwithstanding its
awareness of the health risks of the product. In 1988, however, the government
— having received further advice from a committee — announced its intention
to ban snuff. The company sought judicial review, relying on a legitimate
expectation based on the government’s action. The court ruled, however, that,
even though the applicant had a legitimate expectation, that expectation could not
override the public interest in banning a harmful substance.
In R.P. Singh vs. State of Bihar[xxviii], the Supreme Court explained that the
expression “established practice” referred to a regular, consistent, predictable &
certain conduct, process or activity of the decision-making authority. The
expectation should be legitimate i.e. logical, reasonable & valid. The doctrine of
legitimate expectation would apply in cases where the decision taken by the
authority is found to be arbitrary, unreasonable & not taken in public interest.
Change in policy however, can defeat the legitimate expectation. In such a case,
even by the way of change of old policy, the Courts would not intervene with the
decision.
In Jatinder Kumar vs. State of Haryana[xxix], the Court held that the
Government had a right to review the decisions taken by the previous
establishments & hence it could suspend the process of recruitment started by
previous Government, because of allegations of irregularities & this could not be
challenged on the ground of violation of legitimate expectation.

11. Independence of Judiciary / Do you think that the procedure

of appointment of Judges of Supreme Court and High Court
under Indian Constitution ensures the Independence of
Judiciary? Justify your answer in the light of Supreme Court
Advocates-on Record Association v. Union of India, 1994 case.

INTRO:

The concept of separation of powers refers to a system of government in which

the powers are divided among multiple branches of the government, each
branch controlling different facet of government.

In India, there exists three organs of government Namely

Legislative : The primary function of the legislature is to make laws for good
governance of a state.

Executive : The executives mainly implement and enforce the laws made by the
legislature.

Judiciary : It interprets and applies the laws made by the legislature and
safeguards the rights of the individuals. It also resolves the disputes within the
state or internationally.

Article 50: This article puts an obligation over the State to separate the
judiciary from the executive.

The doctrine of Separation of Power that was envisioned by the constitution

makers and then incorporated as one of the basic structures of the Indian
Constitution, provides very clearly for the independence of Judiciary. It is the
Judiciary through its courts of laws that upholds the democracy of this nation
and keeps the other organs of the state machinery accountable for their actions.

However, over the years the meaning and scope of this independence of the
judiciary have been much discussed and deliberated upon, raising questions as
to whether such independence is absolute or if it suggests an insubordination of
the executive and legislature. One such branch of discussion grew around the
powers of appointments of judges of High Courts and Supreme Court. Judges
are an integral part of the judiciary and a transparent, clear and democratic
system dealing with the appointment of Judges is necessary for the continuance
of an efficient judicial system which upholds the trust of the people, guards the
constitutional values and democracy and balances the other organs while
keeping them in check.

Independence of judiciary pg. 426 of book constitutional law GP tripathy

S.P Gupta V UOI (First Judges Case)

The SC held that consultation of president with Chief Justice of India, while
appointing judges of Higher judiciary is mere Suggestion and is not binding on
the President as the CJI is also a human being with flaws and failings.
Hence Executive was vested with power which failed the concept of judicial
Independence in TOTO

SC AOR v UOI (Second Judges case)

This case reserved the above judgement. 9 judges constitution bench devised a
specific procedure called collegium system for appointment and transfer of
judges in the higher judiciary.

Collegium would recommend the names to the president and it was open to the
executive to ask the collegium to reconsider the matter if they had any objection
with the names suggested. If on reconsideration, the collegium reiterated the
recommendation, the executive was bound to accept the name.

Collegium would consist of One Chief Justice of India and two senior most
judges of Supreme court (in case of appointment of SC Judges)

Collegium would consist of One Chief Justice of India and two senior most
judges of HC (in case of appointment of HC Judges)

THIRD JUDGES CASE

Second judges case left uncertainty. It was presumed that CJI would just consult
the senior collegues and that the decision of CJI would be final. Later in this
case following concepts were clarified.

Concept of collegium was expanded and clarified. Now Collegium consists of

one chief justice of India along with Four Senior most judges of SC.

Chief justice of India would recommend the name to President in consultation

with 4 senior most puisine judges and if he is not following any norms and
requirements of consultation process, it would not be binding on GOI
FOURTH JUDGES CASE (SC ADR Associations and ORS v. UOI) 2015

In 2015, a 5 judges constitutional bench declared 99th amendment and national

judicial appointment commission, which was established to replace collegium
system of appointment and transfer of Judges of Higher judiciary, as null and
void and unconstitutional

Followimg reasons were stated in the judgement

 Article 50 of Indian Constitution was not being upheld.

 The presence of the Union Minister in charge of Law and Justice in

NJAC infringed the independence of the judiciary and the doctrine of
Seperation of powers.

 Against the basic structure doctrine laid down in Keshavanand Bharti

Case.

The aftermath of fourth judges case saw a standoff throughout 2016 between the
collegium and the executive. This resulted in several delays in appointment to
the higher judiciary despite rising vacanices.

Some of the resolved issues includes a clause that allows the Central Governmnt
to reject a candidate’s appointment on ground of national security

And the setting up of secretariats in the HC and SC (to maintain databases of

Judges that aid the collegium in selection process.)

Conclusion

Dr. BR Ambedkar said, “the people may lose faith in the executive or
legislature but it will be an evil day if they lose confidence in its judiciary.”
People’s faith in the judiciary persists only as long as this sacrosanct institution
remains independent and impartial with no external leanings, a true protector of
people’s rights, interpreter of the constitution and caretaker of constitutional
rights. The judiciary in India is currently facing a torrential onslaught on its
independence, several researchers argue that independence of the judiciary is
but a modern myth in India.

However, the recent judgements of the Supreme Court provide fresh hope that
the independence of the judiciary might yet be preserved intact. ultimately, it
falls on the judiciary to maintain its autonomy despite adversities and setbacks.
It is a mammoth challenge, especially in the non-conducive pol

12. Law And Justice are they interrelated and explain justice
with help of Various theories. / Western theories of Justice.

Law and justice are inter-related and interconnected concepts. But The concepts
of law and justice are often confused and misinterpreted by many. While the
two are strictly connected, they are not the same thing. Justice is a broad
concept that is based on equality of rights, fairness and morality. Conversely,
law is a body of regulations and standards set up by governments and
international bodies and is (or should be) based on the idea of justice. Laws are
written norms that regulate the actions of the citizens and of the government
itself in all aspects, whereas justice is a principle that may or may not be
universally recognized.

The Manu smriti also known as Laws of Manu is the ancient legal and ethical
text in Hinduism. It is one of the most well known and debated text within the
genre of Dharma Shastra which deals with the principles of Dharma,
Righteousness, duty and law in Hindu Society.

Even Article 21 of our Constitution guarantees that “no person shall be

deprived of life and personal liberty except according to the procedure
established by law”. The Indian Supreme Court in Maneka Gandhi (1978),
Hussainara Khatoon (1980) and several other catenae of cases have held that
this “procedure” mentioned in Article 21 should be reasonable, just, and fair.
Justice is so integral to the law that not only philosophers, but even ordinary
people tend to identify law with justice and therefore the expression ‘unjust law’
seems like an oxymoron. Furtherance of justice is thus considered as the
primary function of law. Consequently, law devoid of justice seems like a ship
without a rudder.

Is it necessary that in all cases, a set of legal rules will bring justice? Is it even
possible to understand what will be just in all circumstances? Is it possible to
frame rules for all circumstances? Sometimes, do you ever feel that what
someone had done is not injustice, but you cannot give reasons for the same?
Should the conception of justice always be accompanied by reasoning?

Divine justice example ****

The relationship between law and justice is a complex and evolving one, and it
has been a subject of philosophical and legal discourse for centuries. Different
theories of justice have shaped and influenced the judicial process in various
ways. Let's explore this relationship through various theories of justice and
relevant cases from Supreme Court.

a. Aristotles theory of Justice:

Aristotles justice is divided into Universal Justice and Particular justice

 Universal Justice:

Anything done according to law. Obedience of Law. Following all the rules and
regulations as per law is universal Law.

 Particular Justice:

In particular situation, Particular Decision is to be taken. Particular Justice is

divided into Distributive

Distributive: any distribution in state of Wealth, honour, Opportunity etc such

distribution must be fair. But Distributive theory follows one basic principle :
Treating equals equally and treating unequal’s unequally. Distributive Justice is
the work of legislative.

Corrective/ commutative/rectificatory Justice: This type of justice is required

in case where one individual acts in such a way that wrongdoer gains and victim
suffers.

Eg: if A commits robbery in house of B. then court may Punish A and

compensate B.

 This justice is required for two reasons:

Voluntary involvement: buying defective goods etc, victims indirect involment.

Involuntary Involvement: Murder, dacoity where I am not directly involved.

b. Plato’s theory of Justice

Plato believed in "Like Man, Like State", implying that the character of the state
is dependent on the character of its citizens. It also meant that once the nature of
human beings is understood, it's easier to understand the functions of human
society, and to arrive at the conclusion as to who is the best fit for ruling in this
society.

Plato characterises human behaviour in three main sources:

 Desire (or Appetite)

 Emotion (or Spirit)
 Knowledge (or Intellect)
Each human being has all three emotions but what varies is the degree to which
these emotions are present in them. According to Plato, the ones who are restless
and rapacious are fit for trade. Others who are driven by their emotion or spirit
are best suited to become soldiers. Lastly, there are few who find no pleasure in
worldly pursuits or victory and are satisfied in mediation. Such beings yearn to
learn, and they are always in search of truth, and according to Plato, only these
men of wisdom are fit to rule.

Plato thinks that just like the perfect individual is the one who has the ideal
combination of desire, emotion and knowledge, a just state is the one that has
individuals as its citizens for trade, to be soldiers and to rule. In the perfect state,
individuals driven by desire will lead to growth and production but would not
rule; the military armies would maintain security but not rule either. Only the
individuals who have no appetite to gain material possession or power and are
forces of knowledge would become the rulers.

Justice: the virtue of state

In his idea of justice, Plato identifies virtues that suit each social class.

 The social class of traders, whose dominant trait is desire, the

befitting virtue of traders is TEMPERANCE.
 The social class of soldiers, whose dominant trait is spirit or
emotion, the befitting virtue of soldiers is COURAGE.
 The social class of Philosophers, whose dominant trait is knowledge
or intellect, the befitting virtue of Philosophers, is WISDOM.
 The virtue that befits the state is JUSTICE which creates harmony in
all the three social classes and is a necessary condition for human
happiness.
The first three virtues belong to the respective three social classes, but the fourth
virtue is a manifestation of harmony between all the three classes. These four
virtues are also referred to as the four Cardinal Virtues of Plato's theory of Justice.

c. Utilitarian Theory of Justice:

According to this theory, an action is just if it promotes the greatest overall

happiness for the greatest number of people. In the context of law, this means
that laws should be designed to maximize societal welfare. Supreme Court
decisions often consider the utilitarian consequences of their rulings.
For example, in Brown v. Board of Education (1954), the Court ruled that racial
segregation in public schools was unconstitutional because it perpetuated
inequalities and denied equal educational opportunities, leading to an unjust
society.

d. Retributive Theory of Justice:

This theory emphasizes proportionality and just punishment for wrongdoing. It

asserts that individuals who violate the law should receive fair and appropriate
punishment.

The Supreme Court, in Gregg v. Georgia (1976), upheld the constitutionality of

the death penalty, stating that it served as a proportionate punishment for certain
heinous crimes, and thus, it was in line with the retributive theory of justice.

e. Restorative Justice:

This theory focuses on repairing harm caused by criminal behavior rather than
solely punishing the offender. It emphasizes reconciliation and rehabilitation.
Though not a specific case, the concept of restorative justice has influenced
alternative dispute resolution mechanisms, diversion programs, and juvenile
justice systems in various jurisdictions.

f. Distributive Justice:

This theory concerns the fair distribution of resources, opportunities, and

benefits in society. In the legal context, it addresses issues of social and
economic inequality.

The Supreme Court, in cases like Brown v. Board of Education and Grutter v.
Bollinger (2003), considered the concept of distributive justice by ruling against
discriminatory admissions practices in universities.

g. Procedural Justice:
This theory emphasizes fair and impartial processes in the legal system. It
focuses on ensuring that individuals have equal access to justice and are treated
fairly during legal proceedings. The concept of due process enshrined in the
U.S. Constitution reflects the importance of procedural justice.

h. Rawls’ theory
John Rawls was a firm opposer of utilitarianism, which held the view that just
or fair actions are the ones that bring the greatest amount of good for the
greatest number. He condemned utilitarianism because he opined that it paves
the way for governments to function in ways that bring happiness to a majority
but ignore the wishes and rights of a minority.

Rawls’ theory of justice is largely influenced by the Social Contract Theory, He

calls his conception “justice as fairness.”

 Veil of ignorance
To achieve justice for all, it is vital to set aside personal interests and be rational
while making rules or decisions affecting society. To reach a rational mindset,
Rawls argues that one must imagine himself as if he is behind a “veil of
ignorance.” This veil of ignorance is a theoretical device or hypothetical
separation between the decision-maker and the society he lives in. It prevents
him from knowing any material facts about himself or the people for whom he
is making the rule. These factors may be –

 Demographic facts – Examples of which may be age, sex, ethnicity,

level of income, colour, employment, personal strengths and
weaknesses, etc.
 Societal facts – Examples of which may be the type of government,
societal organisation, culture and traditions, etc.
 Facts about the decision-maker’s view of the good – These are the
decision-maker’s values and preferences of how one’s life should be. It
also includes specific morals and political beliefs.
Rawls hoped that by ignoring these facts, one can avoid the biases that might
otherwise come into a group decision.
  Two principles of justice
Rawls stated that in the original position, the members of a society would be led
by reason and self-interest to agree upon the following two principles of
justice;

1. The Principle of Equal Liberty

Rawls’ first principle of justice states that each person is to have an equal right
to the most extensive basic liberty compatible with a similar liberty for others.

As per the principle of equal liberty, all the people in the society must be given
certain liberties that are basic for human existence. Such liberties can not be
infringed at any cost, even if they may cause greater benefit to a larger mass of
people. Some of the basic liberties as stated by Rawls were the freedom of
speech, assembly, thought and conscience, liberties required to secure the rule
of law, sanitation, wealth, and health.

However, Rawls does not consider the economic rights and liberties like
freedom of contract or the right to own means of production, etc. as basic
liberties, because economic progress cannot happen without the expense of the
ones that do not happen to belong to the larger group.

Eg right to vote, Mobility, contest election, Equal protection etc.

2. The Principle of Difference and Fair Equality of Opportunity

Rawls’ second principle of justice states that social and economic inequalities
are to be arranged so that they are both –

1. To the greatest benefit of the least advantaged, and

2. Attached to offices and positions open to all under conditions of fair
equality of opportunity.
Clause(A) of Rawls’ second principle of justice is also called the difference
principle. It provides that in case of an unequal distribution of wealth and
income, the inequality must be such that those that are worst off are still better
off than they would be under any other distribution. So, in one way, Rawls
opines that no society can exist without economic disparity. However, such a
disparity must be diminished as much as possible.
Clause(B) of Rawls’ second principle of justice is also called the fair equality of
opportunity principle. It provides that society must facilitate everyone with the
most basic means to enable them to participate in social competition. Everyone
should have an equal opportunity to compete for the public or private offices or
positions that they wish for. This includes providing education, and healthcare.

i. John Locke’s theory of Justice:

his philosophy propose a social contact theory of justice. He believed that

individual enter into a social contract to form a govt that protects their natural
rights, including life,liberty, and property.

For locke justice involves upholding these rights and ensuring that govt operates
within its legitimate bonds.

12. Logic, History, Customs & Accepted standard of right

conduct are the Forces, which shape the Process of Law.
Illustrate with Examples?

INTRO:

The term "Sources of law" means the origin from which rules of human
conduct came into existence.

Ever imagined the situation when there were no codified laws, there can be
several questions up to one’s mind like would it result to anarchy or how would
you govern and regulate the particular class and sect? In ancient times when
there were no laws, the people were governed by the customs prevalent in their
particular community. Those customs were taken seriously by the community
and were enforced and implemented on each and every community of that
particular sect. Customs is a very authentic and binding source of law, because
of the historic value they have.

History:
Historical Sources of law are those which expresses the history or evolution for
the principal of law and the circumstances through which it attained the form of
law.

History plays a vital role in shaping the law by establishing precedents and
legal traditions. Precedents are previous court decisions that guide the
interpretation and application of the law in subsequent cases.

For example, the landmark case of Roe v. Wade (1973) established a precedent
in the United States that protects a woman's right to choose to have an abortion.
The historical context and the legal reasoning employed in that case influenced
subsequent decisions regarding reproductive rights.

CUSTOMS

A custom is a rule which in a particular family or in a particular district or in a

particular section, class or tribe, has from long usage obtained the force of law.

Tribal Customary Law In India

The constitution of India guarantees the protection to the Tribal people in order
to develop according to their own culture. An ancient custom is not only an
adjunct of ordinary law in jurisprudence, but it is also a fundamental component
of it. According to this line of thought, unwritten tribal customary laws
recognised as binding by their communities interact with the wider corpus of
law produced and enforced by the formal State.

This connection frequently misses their importance in maintaining tribal unity

and identity. The community feature is unique to most tribal customary laws.
This characteristic arose from the area-specific management of the natural
resources or environment that provided their subsistence.

. In case of Balusami v. BalaKishna, the custom permitting marriage with

daughter’s daughter has also been held immoral.

In case ofBudanso v. Faturr, a custom which would enable a woman to marry

again during the life time of her husband without any defined rules by which the
marriage with the first husband is dissolved before the second marriage is
contracted, was held to be contrary to public policy. In nut shell a custom is
valid if it not contrary to justice, equity or good conscience or opposed to public
policy.

Logic: Logic refers to reasoning and rationality in the legal process. It involves
the application of logical principles and coherent arguments to arrive at just and
consistent outcomes. For instance, in cases involving contracts, courts use
logical reasoning to interpret the terms and intentions of the parties involved.
They analyze the logical coherence of the arguments presented by both sides to
determine the legal rights and obligations of the parties.

cases where the court applied logical reasoning to arrive at a decision. One
such example is the Last Seen Theory under Indian evidence law. This theory
is based on circumstantial evidence and is used when there is no direct or
tangible evidence regarding how the offence has been committed or who
committed the offence. According to this theory, if a person is the last seen with
the deceased just before his death or within a reasonable period of his death that
no other person could have intervened in between them then the presumption
can be taken that he (the person who was last seen) is the author of the crime.
And thus the burden of proof shifts on him to negate this fact and if he is not
able to give a lucid and sufficient explanation about his innocence then the
presumption becomes even stronger.

IN Shailendra prasad Paswan v. state of Gujrat : the SC held that last seen
theory is strong piece of circumstantial evidence and can be used to convict an
accused if it is proved beyond reseaonble doubt that the accused was last seen
with the deceased before occurrence of the event.

Accepted Standards of Right Conduct:

Accepted standards of right conduct encompass ethical principles, moral values,

and societal expectations. These standards guide the formulation and
implementation of laws to promote fairness and justice.
Ethics are the code of conduct agreed and adopted by the people. It sets a
standard of how a person should live and interact with other people.

For example, laws prohibiting theft and assault are rooted in the widely
accepted standard that it is wrong to harm others or take their property without
permission.

The prohibition of driving under the influence (DUI) is an example of a law that
reflects accepted standards of right conduct. Society widely recognizes that
drunk driving poses a significant risk to public safety, leading to the enactment
of laws and penalties to deter such behaviour.

However, it does not have universal application because it is a subjective

concept. Leading example of the same is:

The concept of Same sex marriages is still not accepted by the Indian society
and somewhere it is still considered as unethical. Supreme court of India too
refused to grant legal recognition to same sex marriage. But it has been
legalised by more than 20countries across the globe.

Therefore, accepted standard of right conduct is a dynamic concept it is

subjective according to geographical location also it gradually changes with
time.

In Navtej singh Johar v. UOI, Indian Supreme Court (Court) unanimously held
that Section 377 of the Indian Penal Code, 1860, insofar as it applied to
homosexual consensual sexual conduct between adults in private, was
unconstitutional.

13. judicial activism v. judicial restraint

The Judiciary has been assigned active role under the constitution. Judicial
activism and judicial restraint are facets of that uncourageous creativity and
pragmatic wisdom.

The concept of Judicial activism is thus the polar opposite of Judicial restraint.
Judicial activism and Judicial restraint are the two terms used to describe the
philosophy and motivation behind some judicial decision. At most level,
judicial activism refers to a theory of judgment that takes into account the spirit
of the law and the changing times, while judicial restraint relies on a strict
interpretation of the law and the importance of legal precedent.

udicial Restraint is a theory of judicial interpretation that encourages judges to

limit the exercise of their own power. It asserts that judges should hesitate to
strike down laws unless they are obviously unconstitutional. Judicially-
restrained judges respect stare-decisis, the principle of upholding established
precedent handed down by past judges.

The expression `judicial activism’ is often used in contrast to another expression

`judicial restraint’. Judicial activism is a dynamic process of judicial outlook in
a changing society. Arthur Schlesinger Jr. introduced the term "judicial
activism" in a January 1947 Fortune magazine article titled "The Supreme
Court: 1947".

According to Black's Law Dictionary judicial activism is a " judicial philosophy

which motivate judges to depart from the traditional precedents in favour of
progressive and new social policies”.

In recent years law making has assumed new dimensions through judicial
activism of the courts. The judiciary has adopted a healthy trend of interpreting
law in social context.

Judicial activism describes judicial rulings suspected of being based on personal

or political considerations rather than on existing law.

Sometimes judges appear to exceed their power in deciding cases before the
Court. They are supposed to exercise judgment in interpreting the law,
according to the Constitution. Judicial activists, however, seem to exercise their
will to make law in response to legal issues before the Court.
The question of judicial activism is closely related to constitutional
interpretation, statutory construction and separation of powers. It is sometimes
used as an antonym of judicial restraint.

Judges should act more boldly when making decisions on cases

1. Law should be interpreted and applied based on ongoing changes in

conditions and values.

2. As society changes and their beliefs and values change, courts should then
make decisions in cases the reflect those changes.

According to the idea of judicial activism, judges should use their powers to
correct injustices, especially when the other branches of government do not act
to do so. In short, the courts should play an active role in shaping social policy
on such issues as civil rights, protection of individual rights, political unfairness,
and public morality.

Examples- of judicial activism are the decisions by the Indian Supreme Court in
Maneka Gandhi’s case as well as its decisions relating to Article 21 of the
Indian Constitution, etc.

Trends in Judicial Restraint

There is broad (though not absolute) separation of powers in the Indian

Constitution vide Divisional Manager, Aravali Golf Course vs. Chander Haas,
2008. The Constitution of India did not provide for the judiciary to be a super
legislature or a substitute for the failure of the other two organs. Thus, the need
arises for the judiciary to lay down its own limitations.

One of the examples of judicial restraint is the case of State of Rajasthan v

Union of India, in which the court rejected the petition on the ground that it
involved a political question and therefore the court would not go into the
matter.
In S.R. Bommai v Union of India The judges said that there are certain
situations where the political element dominates and no judicial review is
possible.
The exercise of power under Art.356 was a political question and therefore the
judiciary should not interfere. Ahmadi J. said that it was difficult to evolve
judicially manageable norms to scrutinize the political decisions and if the
courts do it then it would be entering the political thicket and questioning the
political wisdom, which the court must avoid.

In Almitra H. Patel Vs. Union of India, where the issue was whether
directions should be issued to the Municipal Corporation regarding how to
make Delhi clean, the Court held that it was not for the Supreme Court to direct
them as to how to carry out their most basic functions and resolve their
difficulties, and that the Court could only direct the authorities to carry out their
duties in accordance with what has been assigned to them by law.

Justice A.S. Anand former Chief Justice of India, in a public lecture cautioned
that with a view to see that judicial activism does not become “judicial
adventurism”, judges need to be circumspect and self- disciplined in the
discharge of their judicial functions. The worst result of judicial activism is
unpredictability. Unless judges exercise self-restraint, each judge can become a
law unto himself and issue directions according to his personal fancies, which
will create chaos. Reservations have been expressed in many quarters about
some very recent decisions of the Supreme Court.

The Indian Supreme Court, while conservative in the initial years, had later a
burst of judicial activism through the social philosophies of Justice
Gajendragadkar, Krishna Iyer, P.N. Bhagwati, etc. who in the garb of
interpretation of Articles 14, 19 and 21 of the Indian Constitution created a host
of legal norms by judicial verdicts.

Part III of the Indian Constitution enumerates certain Fundamental Rights which
are enforceable e.g. freedom of speech, liberty, equality, freedom of religion,
etc.

On the other hand Part IV called the Directive Principles of State Policy contain
certain socio-economic ideals e.g. right to work, to education, to a living wage,
to health etc. which though unenforceable are ideals which the State is directed
to strive for. Though Article 37 states that these Directive Principles are
unenforceable, the Indian Supreme Court has enforced many of them often by
reading them into certain Fundamental Rights e.g. in Unnikrishan’s case the
right to education was read into Article 21.

Judicial activism in Indian scenario

The Indian Constitution, promulgated in 1950, largely borrowed its principles

from Western models – parliamentary democracy and an independent judiciary
from England, the Fundamental Rights from the Bill of Rights, and federalism
from the federal structure in the U.S. Constitution, and the Directive Principles
from the Irish Constitution. These modern principles and institutions were
borrowed from the West and then imposed from above on a semi-feudal, semi-
backward society in India.

The Indian judiciary, being a wing of the State, has thus played a more activist
role than its U.S. counterpart in seeking to transform Indian society into a
modern one, by enforcing the modern principles and ideas in the Constitution
through Court verdicts.

In the early period of its creation the Indian Supreme Court was largely
conservative and not activist. In that period, which can broadly be said to be up
to the time Justice Gajendragadkar became Chief Justice of India in 1964, the
Indian Supreme Court followed the traditional British approach of Judges being
passive and not activist. There were very few law creating judgments in that
period.

Justice Gajendragadkar, who became Chief Justice in 1964, was known to be

very pro-labour. Much of the Labour Law which he developed was judge made
law e.g. that if a worker in an industry was sought to be dismissed for a
misconduct there must be an enquiry held in which he must be given an
opportunity to defend himself.

In 1967 the Supreme Court in Golakh Nath v. State of Punjab, held that the
fundamental rights in Part III of the Indian Constitution could not be amended,
even though there was no such restriction in Article 368 which only required a
resolution of two third majorities in both Houses of Parliament. Subsequently,
in Keshavanand Bharti v. State of Kerala, a 13 Judge Bench of the Supreme
Court overruled the Golakh Nath decision but held that the basic structure of the
Constitution could not be amended. As to what precisely is meant by `basic
structure’ is still not clear, though some later verdicts have tried to explain it.
The point to note, however, is that Article 368 nowhere mentions that the basic
structure could not be amended. The decision has therefore practically amended
Article 368.A large number of decisions of the Indian Supreme Court where it
has played an activist role relate to Article 21 of the Indian Constitution, and
hence we are dealing with it separately.

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

(2004), Justice Gajendragadkar ruled that a mandatory enquiry should be
conducted if a worker is dismissed on the ground of misconduct, and be
provided with an opportunity to defend himself. This judgement added
regulations to labour law which was ignored by legislation.

Similarly, Vishaka vs State of Rajasthan (1997) is an important case that

reminds the need of Judicial activism. Here, the SC laid down guidelines that
ought to be followed in all workplaces to ensure proper treatment of women. It
further stated that these guidelines should be treated as a law until Parliament
makes a legislation for enforcement of gender equality.

Some other famous cases of Judicial Activism include -

Kesavananda Bharati case (1973): The apex court of India declared that the
executive had no right to intercede and tamper with the basic structure of the
constitution.

Sheela Barse v. State of Maharashtra (1983): A letter by Journalist,

addressed to the Supreme Court addressing the custodial violence of women
prisoners in Jail. The court treated that letter as a writ petition and took
cognizance of that matter.

I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967): The Supreme
Court declared that Fundamental Rights enshrined in Part 3 are immune and
cannot be amended by the legislative assembly.
Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric
conditions of the undertrial prisoners reflected through the articles published in
the newspaper. Under article 21 of the Indian Constitution, the apex court
accepted it and held that the right to speedy trial is a fundamental right.

A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court rejected
the argument that to deprive a person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but also that such procedure
must be fair, reasonable and just.

Article 21 and Judicial Activism

Article 21 states: “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”

In A.K. Gopalan v. State of Madras, the Indian Supreme Court rejected the
argument that to deprive a person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but also that such procedure
must be fair, reasonable and just. To hold otherwise would be to introduce the
due process clause in Article 21 which had been deliberately omitted when the
Indian Constitution was being framed.

However, subsequently in Maneka Gandhi v. Union of India, this requirement

of substantive due process was introduced into Article 21 by judicial
interpretation. Thus, the due process clause, which was consciously and
deliberately avoided by the Constitution makers, was introduced by judicial
activism of the Indian Supreme Court.

Another great arena of judicial activism was begun by the Indian Supreme
Court when it interpreted the word `life’ in Article 21 to mean not mere survival
but a life of dignity as a human being.

Thus the Supreme Court in Francis Coralie vs. Union Territory of Delhi held
that the right to live is not restricted to mere animal existence. It means
something more than just physical survival. The Court held that:“… the right to
life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and
shelter and facilities for reading, writing and expressing one-self in diverse
forms, freely moving about and mixing and comingling with fellow human
beings.”

The ‘right to privacy’ which is a new right was read into Article 21 in R.
Rajagopal Vs. State of Tamil Nadu. The Court held that a citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education, among other matters.

The Supreme Court also ruled that the right to life guaranteed under Article 21
includes the right to livelihood as well. The right to food as a part of right to life
was also recognised in Kapila Hingorani Vs. Union of India whereby it was
clearly stated that it is the duty of the State to provide adequate means of
livelihood in the situations where people are unable to afford food. The Court
has also held that the right to safe drinking water is one of the Fundamental
Rights that flow from the right to life. Right to a fair trial, right to health and
medical care, protection of tanks, ponds, forests etc which give a quality life,
right to Family Pension, right to legal aid and counsel, right against sexual
harassment, right to medical assistance in case of accidents, right against
solitary confinement, right against handcuffing and bar fetters, right to speedy
trial, right against police atrocities, torture and custodial violence, right to legal
aid and be defended by an efficient lawyer of his choice, right to interview and
visitors according to the Prison Rules, right to minimum wages etc. have been
ruled to be included in the expression of ‘right to life’ in Article 21. Recently
the Supreme Court has directed providing a second home for Asiatic Lions vide
Centre for Environmental Law V. Union of India (writ petition 337/1995
decided on 15.4.2013) on the ground that protecting the environment is part of
Article 21. The right to sleep was held to be part of Article 21 vide In re Ramlila
Maidan (2012) S.C.I.1. In Ajay Bansal vs Union of India , Writ Petition
18351/2013 vide order dated 20.6.2013 the Supreme Court directed that
helicopters be provided for stranded persons in Uttarakhand.

Thus we see that a plethora of rights have been held to be emanating from
Article 21 because of the judicial activism shown by the Supreme Court of
India. However there can be grave reservations about some of these orders. One
wonders whether there will be any limit to the number of such rights created by
court orders.

In a subsequent decision, Bhagwan Dass Vs. State (NCT) of Delhi, 2011(5)

Scale 498, again authored by the writer, the Supreme Court mandated death
sentence for `honour killing’ i.e. killing of young men and women who married
outside their caste or religion, or in their same village, thereby `dishonouring’
the parents or their caste.

The most recent case on judicial activism was the case of Aruna Ramchandra
Shanbaug Vs. Union of India and Others,Aruna Shanbaug, a nurse in 1973,
while working at a Hospital at Mumbai, was sexually assaulted and has been in
a permanent vegetative state since the assault. In 2011, after she had been in this
status for 37 years, the Supreme Court of India heard the petition to the plea for
euthanasia filed by a social activist claiming to be Aruna’s friend. The Court
turned down the petition, but in its landmark judgment (authored by the writer)
it allowed passive euthanasia i.e. withdrawal of life support to a person in
permanently vegetative state, subject to approval by the High Court.

Judicial Activism vs. Judicial Restraint

The difference between judicial activism (“loose constructionist”) and “judicial
restraint (“strict constructionist”). These are ways of interpreting the
Constitution. A judge who is a strict constructionist might rule in cases in a way
that reads the Constitution very literally or relies on the original intent of the
framers. A judge that is a judicial activist might rule in a very broad manner that
takes into account how times have changed since 1787.

Judicial Activism and Judicial Restraint are two opposite approaches. Judicial
activism and judicial restraint, which are very relevant in the United States, are
related to the judicial system of a country, and they are a check against the
fraudulent use of powers of the government or any constitutional body.
1. Judicial activism is the interpretation of the constitution to advocate
contemporary values and conditions.

On the other hand, judicial restraint is limiting the powers of the judges to strike
down a law.

2. In the judicial restraint, the court should upload all acts of the congress and
the state legislatures unless they are violating the constitution of the country.

In judicial restraint, the courts generally defer to interpretations of the

constitution by the congress or any other constitutional body.

3. In the matter of judicial restraint and judicial activism, the judges are required
to use their power to correct any injustice especially when the other
constitutional bodies are not acting. This means that Judicial activism has a
great role in formulating social policies on issues like protection of rights of an
individual, civil rights, public morality, and political unfairness.

4. Judicial activism and judicial restraint have different goals.

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

government, judiciary, executive, and legislative. In this case, the judges and the
court encourage reviewing an existing law rather than modifying the existing
law.

5. When talking about the goals of judicial activism, it gives the power to
overrule certain acts or judgments.

For example, the Supreme Court or an appellate court can reverse some
previous decisions if they were faulty. This judicial system also acts as checks
and balances and prevents the three branches of government, judiciary,
executive and legislative from becoming powerful.

6. Judicial activism is the interpretation of the constitution to advocate

contemporary values and conditions.
Judicial restraint is limiting the powers of the judges to strike down a law. In
judicial restraint, the court should upload all acts of the congress and the state
legislature unless they are violating the constitution of the country.

7. In Judicial activism, the judges are required to use their power to correct any
injustice especially when the other constitutional bodies are not acting. Judicial
activism has a great role in formulating social policies on issues like protection
of rights of an individual, civil rights, public morality, and the political
unfairness.

8. Judicial restraint Judges should look to the original intent of the writers of the
Constitution.

Judicial activism judges should look beyond the original intent of the framers
(after all they were mere humans too and not infallible to making mistakes).

9. Judicial restraint Judges should look at the intent of the legislatures that wrote
the law and the text of the law in making decisions any changes to the original
Constitution language can only be made by constitutional amendments.
Judicial Restraint:

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

government, judiciary, executive, and legislative.

To uphold the law established by the government in the legislature.

To show solemn respect for the separation of governmental problems.

To allow the legislature and the executive to follow their duties by not reaching
in their arena of work.

To mark a respect for the democratic form of government by leaving the policy
on policymakers.

Trends in Judicial Restraint:

S.R. Bommai v Union of India (1994) is a famous example often stated to show
restraint practiced by Judiciary. The judgement stated that in certain cases the
judicial review is not possible as the matter is political. According to the court,
the power of article 356 was a political question, thus refusing judicial review.
The court stated that if norms of judiciary are applied on matters of politics,
then it would be entering the political domain and the court shall avoid it.

Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court
refused to direct the Municipal Corporation on the issue of assigning
responsibility for cleanliness of Delhi and stated that it can only assign
authorities to carry out duty that is assigned as per law.

Conclusion
When Judges start thinking they can solve all the problems in society and start
performing legislative and executive functions (because the legislature and
executive have in their perception failed in their duties), all kinds of problems
are bound to arise. Judges can no doubt intervene in some extreme cases, but
otherwise they neither have the expertise nor resources to solve major problems
in society. Also, such encroachment by the judiciary into the domain of the
legislature or executive will almost invariably have a strong reaction from
politicians and others.
 Judicial Activism Judicial Restraint

interpretation of the constitution limiting the powers of the judges

to advocate contemporary values to strike down a law
and conditions.

it gives the power to overrule the judges and the

certain acts or judgments. court encourage reviewing an
existing law rather than
modifying the existing law,
whereas in judicial activism:

judges should look beyond the Judges should look to the

original intent of the framers. original intent of the writers of
the Constitution.

has a great role in formulating helps in preserving a balance

social policies on issues like among the three branches of
protection of the rights of an government, judiciary, executive,
individual, civil rights, public and legislative.
morality, and political unfairness.

14. Equivalence Theories as a means of Justice

Equivalence theory means Justice as nothing more than the positive law of the
stronger class.

This chapter provides a summary review of the theories influencing the work
for social justice. It is a reflection on the theories and people who have actively
worked for social justice, reform, transformation, emancipation and revolution
in and out of the academy. There are three important commonalities shared by
social justice activists in the social sciences and education: (1) education and
research are not neutral; (2) society can be transformed by the engagement of
politically conscious persons; and (3) praxis connects liberatory education with
social [Link] Justice Theoreticians generally focus their research
and pedagogical efforts toward the ways in which class, race, gender, sexual
orientations and systems of power influence our conceptions of knowledge, the
knowing subject, and practices of inquiry and justification. One common aim of
engaged inquiry identifies ways in which dominant conceptions and practices of
knowledge systematically disadvantage subordinated groups. Claims of
objectivity consistently benefit specific power holder interests. Engaged
educators strive to reform these conceptions and practices so that they serve the
interests of social justice and social equality. Dominant knowledge practices
disadvantage subordinate groups by (1) excluding them from inquiry, (2)
denying them epistemic authority, (3) denigrating their cognitive styles and
modes of knowledge, (4) producing theories that represent them as inferior,
deviant, or significant only in the ways they serve elite interests, (5) producing
theories of social phenomena that render their activities and interests, or power
relations, invisible, and (6) producing knowledge (science and technology) that
is damaging at worst and not useful at best for people in subordinate positions,
thus reinforcing subjugation, exploitation and other social [Link] of
the basic problems that social justice theoreticians pose and expose is the
manner in which the academy in the USA is a foundational site for the
maintenance of social and economic inequalities. That universities were
developed historically excluding women, the indigenous, Africans, and the poor
is historical fact. In, Notes Toward an Understanding of Revolutionary Politics
Today, James Petras says that intellectuals, including academics, are sharply
divided across generations between those who have in many ways embraced,
however critically, ‗neo-liberalism" or have prostrated themselves before "the
most successful ideology in world history" and its "coherent and systematic
vision" and those who have been actively writing, struggling and building
alternatives (Petras 2001).Gramsci offered a theoretical paradigm combining the
social world and the economic world. He stressed the complexity of social
formations as a plurality of conflicts. Politics was assigned a constitutive role in
direct relation to ideology as a key prerequisite for political action in so far as it
served to ‗cement and unify' a "social bloc'. Without this consciousness, there
was no action (Martin 2002).

One of the most important and the most complex concepts that Gramsci
analyzed, is "hegemony". The concept of hegemony is crucial to Gramsci's
theories and to understanding the critique in this study. By ‗ideological
hegemony' Gramsci means the process whereby a dominant class contrives to
retain political power by manipulating public opinion, creating what Gramsci
refers to as the ‗popular consensus' (Boyce 2003). Through its exploitation of
religion, education and elements of popular national culture a ruling class can
impose its world-view and have it come to be accepted as common sense
(Boyce 2003). So total is the ‗hegemony' established by bourgeois society over
mind and spirit that it is almost never perceived as such at all. It strikes the mind
as ‗normality' (reification) (Boyce 2003). To counter this Gramsci proposes an
ideological struggle as a vital element in political struggles. In such hegemonic
struggles for the minds and hearts of the people, intellectuals clearly have a vital
role (Boyce 2003). Gramsci taught that the key index for analyzing a social
formation was the interaction of economic relations with cultural, political and
ideological practices or the ‗historical bloc'. As such, the interconnections
between state and economy and society were viewed processionally, as a
mutually determined whole (Martin 2002). By emphasizing the configuration of
the social formation Gramsci was able to dwell on the points at which the
elements of the social were linked. For example Gramsci showed how
intellectuals in Italy were engaged in the enterprise of legitimizing the
bourgeoisie state's power to the agrarian elite, in other words at the service of or
as agents of the bourgeoisie state (Martin 2002). In the same manner that a
historical bloc could serve elite interests Gramsci posited that a historical bloc
could counter an historical bloc. Revolution was conceived as the gradual
formation of the collective will, an intellectual and moral framework that would
unite a diverse range of groups and classes through an organic relation between
leaders and the praxis of subjects. This was a conception of revolution as
issuing from the immanent will of the people wherein praxis constituted the
very process of history itself (Martin 2002). Gramsci's theory posed that
domination by an economic class grows as they successfully embed economic
activity (e.g., profit before people) as a universal principle (Martin 2002). He
identified how domination was accomplished in conjunction with what he called
‗organic crisis' in which the various points of contact between the dominant
economic class intersected with other classes, specifically with the help of
intellectuals in institutions of education that link the classes in a common
identity (e.g., a nation) (Martin 2002). Gramsci believed this same program
could be countered using similar methods within the non-dominant classes and
groups. Thus a popular identity could be fostered by using organic crisis to link
groups with the help of organic intellectuals guiding and guided by vanguard
intelligentsia creating a community with a popular identity such as "the party".
Using this model would mean building a universalizing identity drawn from the
praxis of the proletariat, by which to supplant the bourgeoisie (Martin 2002).
Theoretically and practically, the terms and phrases such as "organic
intellectual," and "historical bloc" are Gramscian. Gramsci's organic intellectual
is someone whose knowledge is derived through firsthand experience, and
whose life-learning is complemented by self education and other alternative
forms of learning. The organic intellectual emerges from a social class to speak
against the established order in a manner directly connected to the goals of a
political movement and a community (Martin 2002). Gramsci identified how
the various cultural and economic structures force and reinforce people's
consent to subjugation. Methodologically, Gramsci proposed education as a
process of dialogue that would bring the working classes together in projects
and organizations politically and would develop a base of worker intellectuals
who would inform the intelligentsia of the Vanguard [Link] advocated
reflexivity as a mode for counterhegemonic discourse and identified its
importance as foundational for cultural revolution (Gramsci 1971). One of
Gramsci's insights was about cultural dialogue:Consciousness of a self which is
opposed to others, which is differentiated and, once having set itself a goal, can
judge facts and events other than in themselves or for themselves but also in so
far as they tend to drive history forward or backward. To know oneself means to
be oneself, to be master of oneself, to distinguish oneself, to free oneself from a
state of chaos, to exist as an element of order-but of one's own order and one's
own discipline in striving for an ideal. And we cannot be successful in this
unless we also know others, their history, the successive efforts they have made
to be what they are, to create the civilization they have created and which we
seek to replace with our own . . . And we must learn all this without losing sight
of the ultimate aim: to know oneself better through others and to know others
better through oneself. (Gramsci 1971)Gramsci held that each individual was
the synthesis of an "ensemble of relations" and also a history of these relations .
. . the constitution of the subject, then, is the result of a compex interplay of
"individuals" and larger-scale social forces (Hartsock 1998). The process by
which the observations that we make are dependent upon our prior
understandings of the subject of our observations-that they ‗refer back' to past
experiences based on class, culture, etc. are of central importance in praxisThe
Gramscian leitmotif of reflexivity served as a counterhegemonic method
fostering liberatory alliance among oppressed and exploited people. The intent
of the reflexive meth ds of revolutionaries and radicals was to give voice to the
lived experiences of exploitation and to expose and incite action against
oppressors (Fanon 1963). Reflexive methodologies were intended to focus on
the experiences and interpretations of the oppressed toward the aims of
increased understanding of peoples relationships to power structures as they
play themselves out in social relations. Historically the ruling class and
appointed privileged class intelligentsia have defined and constructed meanings
and interpreted the world for the poor, the labor class and middle class. In its
literal sense, the term reflection derives from the Latin verb reflectere, which
literally means "to bend back." Reflexive emancipatory methods require that
people claim the positions they already occupy, and account for what working
from and for such positions means-in particular, in terms of what ends these
positions advance and what interests these positions serve (Campbell 2001).

Justice as positive law of stronger class

The increasing disparity between rich and poor along with increasing global
control through overt and covert wars in Latin America led to dialogues in the
Catholic church about faith, transformation and liberation. The Second Vatican
Council produced a theological atmosphere characterized by creativity
influenced by the times (decolonization, independence struggles, and a
proliferation of socialist ideologies, Marxism and revolutionary and liberation
theorists post WWII) (Boff and Clodovis 2001).This creative theological
atmosphere could be seen at work among both Catholic and Protestant thinkers
with the emergence of the group Church and Society in Latin America (ISAL)
taking a prominent role. There were frequent meetings between Catholic
theologians such as Gustavo Gutiérrez, Segundo Galilea, Juan Luis Segundo,
Lucio Gera, to name a few. This movement led to intensified reflections on the
relationship between faith and poverty and the gospel and social justice. In
Brazil, between 1959 and 1964, the Catholic Left produced a series of basic
texts on the need for a Christian ideal of history, linked to popular action, with a
methodology that foreshadowed that of liberation theology. They urged
personal engagement in the world, backed up by studies of social and liberal
sciences, and illustrated by the universal principles of Christianity. (Boff and
Clodovis 2001) The foundational work defining a liberation theology praxis
came from Gustavo Gutiérrez who described theology as critical reflection on
praxis. Liberation theology begins with the premise that all theology is biased-
that is, particular theologies reflect the economic and social classes of those
who developed them. Accordingly, the traditional theology predominant in
North America and Europe is said to "perpetuate the interests of white, North
American/European, capitalist males." This theology allegedly "supports and
legitimates a political and economic system-democratic capitalism-which is
responsible for exploiting and impoverishing the Third World" (Gutierrez
1971). Liberation theologians say theology must start with a "view from
below"-that is, with the sufferings of the oppressed. Within this broad
framework, different liberation theologians have developed distinctive
methodologies for "doing" theology (Boff and Clodovis 2001).Gutierrez rejects
the idea that theology is a systematic collection of timeless and culture-
transcending truths that remains static for all generations. He views theology as
a fluid process, a dynamic and ongoing movement of human beings providing
insights into knowledge, humanity, and history. Emphasizing that theology is
not just to be learned, it is to be done he says that "praxis" is the starting point
for theology. Praxis involves revolutionary action on behalf of the poor and
oppressed-and out of this, theological perceptions will continually emerge. The
theologian must therefore be immersed in the struggle for transforming society
and proclaim the message from that point. In the theological process, then,
praxis must always be the first stage; theology is the second stage. Theologians
are not to be mere theoreticians, but practitioners who participate in the ongoing
struggle to liberate the oppressed (Gutierrez 1971). In this context, all social
justice praxis must be immersed in the struggle for transforming society as
revolutionary action on behalf of the poor and oppressed. Using methodologies
such as Gutierrez's and Baro's, liberationists interpret sin not primarily from an
individual, private perspective, but from a social and economic perspective.
Gutierrez explains that "sin is not considered an individual, private, or merely
interior reality. Sin is regarded as a social, historical fact, the absence of
brotherhood and love in relationships among men" (Gutierrez 1996).
Liberationists view present-day capitalism as sinful specifically because it has
embedded systems of oppression and exploitation encompassing the majority of
the world's people. Capitalists have become prosperous at the expense of
impoverishing people. This is often referred to as "dependency theory"-that is,
the development of the rich depends on the underdevelopment of the poor
(Gutierrez 1996).There is another side to sin in liberation theology. Those who
are oppressed can and do sin by acquiescing to their bondage. To go along
passively with oppression rather than resisting and attempting to overthrow it-
by violent means if necessary-is sin (Gutierrez 1996). To go along passively
takes many forms but certainly the most consistent form is by participating in
the production of knowledge that benefits the production of both material and
psychological weapons of mass destruction. However, another form of
destructive knowledge production is the contribution to mass media and
educational propaganda which "dumbs down" the people's development as
critical thinkers and critical knowers. The use of violence has been one of the
most controversial aspects of the liberation theology and liberation psychology
of the 1960s through the 1980s. Using violence to free oneself from oppression
was not considered sinful or psychologically damaging if it is used for resisting
oppression. Indeed, certain liberation theologians will in some cases regard a
particular action as sin if an oppressor commits it, but not if it is committed by
the oppressed in the struggle to remove inequities (Gutierrez 1996). The
removal of inequities is believed to result in the removal of the occasion of sin
as well" (Gutierrez 1996). This praxis too has seen some shifts in the past two
decades from radical to pacifistic approaches. Jose Ignacio Martin Baro was
strongly influenced by Gutierrez, and lived and worked in El Salvador. He
developed a praxis model described in his book, Writings for a Liberation
Psychology. He used the term "de-alienating social consciousness" as a core
focus for dialogue. There are three aspects to this process in the theoretical
paradigm of Liberation Psychology: (1) Dialogue-human beings are
transformed through changing their reality. This is a dialectical process that
only happens through dialogue, conversation about our thoughts and feelings in
relationship to our world and our history. (2) Decoding-through the gradual
decoding of their world, people grasp the mechanisms of oppression and
dehumanization. This crumbles the consciousness that posits a situation of
oppression as natural, and opens up the horizon to new possibilities for action
(Baro 1994). The individual's critical consciousness of others and the
surrounding reality brings with it the possibility of a new praxis, which at the
same time makes possible new forms of consciousness (Baro 1994), and, (3)
Social Identity-people's knowledge of their surrounding reality carries them to a
new understanding of themselves and, most important, of their social identity
(Baro 1994). They begin to discover themselves in their action that transforms
the problematic and in their active role in relation to others. Thus, the recovery
of their historical memory offers a base for a more autonomous determination of
their future (Baro 1994).Baro says that liberation theory asks us to respond to
oppression on the social level in three specific ways: (1) by promoting a critical
consciousness of the objective and subjective roots of social alienation (like the
socioeconomic mechanisms that cement the structures of injustice) and the
fatalistic thought processes and accompanying behaviors that give ideological
sustenance to the alienation of the popular majorities such as women, children,
elderly, the impoverished and colonized peoples of the world (Baro 1994). (2)
By breaking down the machinery of the relationships of dominance and
submission through dialogue and relationship. The dialectical process that
fosters individual self-knowledge and self-acceptance presupposes a radical
change in social relations, to a condition where there would be neither
oppressors nor oppressed, and this change applies whether we are talking about
formal schooling, production in a factory, or everyday work in a service
institution (Baro 1994), and (3) by reclaiming our past, by experiencing the
present and by projecting that into a personal and national plan we cast
ourselves in our social and national context, thereby setting forth the problem of
one's authenticity as a member of a group, part of a culture, a citizen of a
country (Baro 1994). Education and Liberation Brazilian educator Paulo Freire
also understood poverty from first hand experience and was influenced by
Liberationist methodologies in Latin America. His life and work as an educator
was full of hope in spite of poverty, imprisonment, and exile. He was a world
leader in the struggle for the liberation of the poor and a great teacher to many
who are teaching using the model he developed. Paulo Freire worked to instill
the strengths and skills necessary for men and women living in poverty to
overcome their sense of powerlessness to act in their own [Link] believed
that freedom through critical literacy necessitates carefully conceived
ethnographic research of a given community, and this means, again, becoming
one with the people. That is, the ethnographer must learn to "respect the reality"
of the people in order to minimize the distance between the people and him or
herself so as to be positioned to effectively work in their reality. He gave
practical instructions for educational praxis with his insistence that dialogue
involves respect (Olson 1992).Freire observed and experienced intense
repression and oppression in Latin America (Brazil, Chile, and Nicaragua). He
developed and practiced a radical approach to education that, as Gramsci had
also identified as necessary, must be linked to social [Link], starting
from a psychology of oppression influenced by the works of psychotherapists
such as Freud, Jung, Adler, Fanon and Fromm, developed a "Pedagogy of the
Oppressed." He believed that education could improve the human condition,
counteracting the effects of a psychology of oppression, and ultimately
contributing to what he considered the ontological vocation of humankind:
humanization. In the introduction to his widely-acclaimed Pedagogy of the
Oppressed, he argued that: "From these pages I hope at least the following will
endure: my trust in the people, and my faith in men and women and in the
creation of a world in which it will be easier to love." Pedagogy of the
Oppressed, which has been influenced by a myriad of philosophical currents
including Phenomenology, Existentialism, Christian Personalism, Marxism and
Hegelianism, calls for dialogue and ultimately conscientization as a way to
overcome domination and oppression among and between human beings.
Interestingly enough, one of the last books that Paulo wrote, Pedagogy of Hope,
offers an appraisal of the conditions of implementation of his Pedagogy of the
Oppressed in our days. (Godotti 1997).Freire also was concerned with praxis.
He thought that dialogue isn't just about deepening understanding-but is part of
making a difference in the world. Dialogue in itself is a co-operative activity
involving respect that has the potential to foster a community of people who
work together for community well being. Freire's attention to naming the world
has been of great significance to those educators who have traditionally worked
with those who do not have a voice and who are oppressed (Smith 2001). The
idea of building‖pedagogy of the oppressed" or a "pedagogy of hope" and how
this may be carried forward has formed a significant impetus to those of us
seeking ways to develop a consciousness that is understood to have the power to
transform reality. Freire's insistence on situating all educational activity in the
lived experience of people has opened up a series of possibilities for the way
activists and educators can approach practices in research and pedagogy (Smith
2001). Several generations of educators, anthropologists, social scientists and
political scientists, and professionals in the sciences and business, felt Freire's
influence and helped to construct pedagogy based in liberation. What he wrote
became a part of the lives of an entire generation that learned to dream about a
world of equality and justice that fought and continues to fight for this world
today. Many will continue his work, even though he did not leave behind
‗disciples.' In fact, there could be nothing less Freirean than the idea of a
disciple, a follower of ideas. He always challenged us to ‗reinvent' the world,
pursue the truth, and refrain from copying ideas. Paulo Freire leaves us with
roots, wings, and dreams. (Godotti 1997) For Freire, naming one's experience
and placing that voiced experience in context is the essence of dialogue (Freire
1970). Freire distinguished discussion from dialogue which is characterized as a
kind of speech that is humble, open, and focused on collaborative learning. It is
communication that can awaken consciousness and prepares people for
collective action. A generative theme is one that emerges from the lives of
learners as they engage a course of study. It presents a point of entry for
learning that has meaning and relevance to a particular group of learners at a
particular time. There are four aspects of Paulo Freire's work that were used in
the early praxis of the primary case study program and are practiced in the
writing of this study. Freire had seen the effects of vanguardism and elitism in
the academy and even community organizing and felt very strongly that
dialogue was about people working with each other (Smith 2001). Second,
Freire was concerned with praxis-action that is informed (and linked to certain
values). Dialogue wasn't just about deepening understanding-but was part of
making a difference in the world. Dialogue in itself is a co-operative activity
involving respect. The process is important and can be seen as enhancing
community and building social capital, and to leading us to act in ways that
make for justice and human flourishing (Smith 2001). Third, Freire's attention
to naming the world has been of great significance to those educators who have
traditionally worked with those who do not have a voice, and who are
oppressed. The idea of building a ‗pedagogy of the oppressed' or a ‗pedagogy
of hope' and how this may be carried forward has formed a significant impetus
to those seeking ways to develop consciousness, the consciousness that is
understood to have the power to transform reality (Smith 2001). Fourth, Freire's
insistence on situating educational activity in the lived experience of people has
opened up a series of possibilities for the way activist educators can approach
practice (Smith 2001).Thick description is an ethnographic research method
developed by anthropologists. In her analysis of culture and morality entitled,
"Fieldwork in Familiar Places," Michelle Moody Adams posits that thick
description means going beneath the surface, showing the complexity behind
social "facts" (or fictions) and social actions. Thick description is commentary
on more than just the facts themselves. Thick description involves interpreting
intentions and expectations, and especially the intricate public structures of
meaning within which it is possible to form intentions and actions on complex
expectations. Thick description is thus interpretation of those structures that
constitute the complex contexts within which meaningful action become
possible (Moody Adams 1997). Thus, the questions must be called: What
ideologies and theories informed our practice? What are our expectations? What
do we actually do? What do we actually accomplish? Who sponsors and
benefits? There are multiple interpretations and ideological frameworks from
which these questions may be answered. Geertz says that the principle tasks of
ethnography should be defined by reference to just such interpretive efforts to
identify intentions and expectations. Ethnography in his view is interpretive
science "in search of meaning" (Geertz 1973).

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