JAMIA MILLIA ISLAMIA

FACULTY OF LAW

Assignment

on
JUDICIAL LAW MAKING

Submitted under the keen guidance of

Dr Asad Malik sb.

Submitted by:

Dilnisar

DILNISAR Page 1
 ACKNOWLEDGEMENT

I, DILNISAR, student of LL.M.2nd year, 2013-2014, owe my heartest

allegiance towards the almighty Allah, because of whose blessings

this Assignment has got the Finale touch. I also express my gratitude

towards my subject Teacher Dr Asad Malik Sb for his guidance and

support in completing this Assignment.

DILNISAR Page 2
 DILNISAR

CONTENTS

 Introduction
 Realistic school of jurisprudence
 Law making provision under constitution of india

 Role of judiciary in the making of law

 Judicial activism under the indian constitution
 Judicial activism: the india scenario
 Article 21 and judicial activism
 Doctrine of prospective overruling – meaning
 Applicability of prospective overruling in india
 Public interest litigation
 Need for PIL
 Definition of 'stare decisis'
 Stare decisis and art. 141, constitution of india
 Ratio decidendi
 Review of judgnments.
 Curative petition
 Special leave petitions
 Special leave petition or slp can be presented under following
circumstance
 Recent cases
 Conclusion
 Bibliography

DILNISAR Page 3
 JUDICIAL LEGISLATION

Introduction:-

Judicial process is the method of attaining justice which seeks to achieve the desirables and
prohibit  undesirables.  Justice, is  itself an irrational concept , However in a layman word justice
means  absence of fear which is possible only when there is - lack of arbitrariness , freedom of
liberty,  and equal access to the quick affordable satisfactory credible dispute settlement forum .
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.

 Judicial legislation means new legal rules made by judges. It means the power of the judicature
to make rules for the regulation of their own procedure by adopting their delegated legislative
powers. Judicial legislation varies from precedent whereby judges create new laws. Usually the
judicial branch has no power to veto any legislation, but they can use judicial review to label
properly challenged legislation unconstitutional. laws held to be created by the pronouncements
of a judge who departs from a strict interpretation of a law according to the manifest intention of
the legislature.

Montesquieu, a French scholar, found that concentration of power in one person or a group of
persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he

DILNISAR Page 4
felt the need for vesting the governmental power in three different organs,the legislature, the
executive, and the judiciary. The principle implies that each organ should be independent of the
other and that no organ should perform functions that belong to theother. Through his doctrine
Montesquieu tried to explain that the union of the executive and the legislative power would lead
to the despotism of the executive, for it could get whatever Jurisprudence

The legislature, the judiciary and the executive are three separate organs for agencies of the state,
entrusted with the sovereign power of governance of the state by rule of law making under in
accordance with the constitution of India. However the task of governance of the state by rule of
law is not entrusted entirely to one organ or agencies exclusively but it is multifaceted task
entrusted to all the three organs or agencies of the state, mandated to function in cooperation
with one another-under current of conflict likely to be felt when the function of two organ for
agency intrudes on that of the other or the manner of performance and perception defer 1. Since
both legislation and administration of justice including its enforcement are the prime component
of law and directly concern the governance of the country a function especially entrusted by the
constitution to the judiciary under article 141 to test the validity of legislation on the touch stone
of the constitution and declare it as valid and invalid. in doing so, the judiciary interpretes the
concern legislation in the conext of the provisions of constitution under which it is challenge and
proceeds to formulate, declare and lay down its own statement of law, in the form of a judicial
pronounce. The judicial law making power is not the same as legislative law making2.

On the subject judicial review is thus the most effective instruments of the governance of the
state by the administration of justice established way back in 1903 by chief justice John Marshal
wgo held the belief that legislative enactments must be subjurvient to the constitution it was the
function of the court alone to decide whether the legislation was valid or not Marbury Vs.
Madison-1803,

1
JUDICIAL LAW MAKING BY M.S PHIROZA Ankelesaria
2
Judicial law making by man raj singh “andra law times”

DILNISAR Page 5
Realistic school of jurisprudence:-

Gray says-“law is what the judges declare”

The recent trends in the PIL which professor upendra bakhsi prefer to call as
social action litigation have, however widened the scope of judicial activism to a
great extent but the judges have to formulate their decision within the limit of
constitutional frame of the law by using their interpretive skill3. This is in other
words means the judges in India cannot ignore the existing legislative statute and
enactment. They have to confine their judicial activism within the limit of statutory
law. The doctrine of president which has no place in the realistic philosophy, play
a significant role in the Indian judicial system as precedent provide guidance to the
presiding judge about the existing position of the law in question. They are
however free to overrule the previous decision on the ground of inconcistency,
incompatibility, vagueness, etc. thus the Indian legal system though endow the
judges with extensive judicial discretion does not make them omnipotent in the
matter of formation of law the legislative statute and enactment precedent and the
rule of equity, justice and good conscinse are essential part of judicial system in
india. The constitution of india itself provide ample scope for the judges to take
into consideration the hard realitites of socio economic and cultural life of Indian
people while dispencing social and economic justice to them4.

It may be retreated that though Indian jurisprudence does not formally subscribe to
the realist legal philosophy it does lay great stress on the functional aspects of the
law and relates law to the realities of social life. As per the realistic view that
judges made law and at the same time it does not completely ignore the role of
3
D.R NV PRANJAYPE ,PAGE NO 87 “STUDIES IN JURISPRUDENCE AND LEGAL THEORY”
4
Supra Ch.5

DILNISAR Page 6
judges. Thus it would be correct to say that the Indian legal system has developed
on the pattern of sociological jurisprudence. Undoubtly the Indian judges do have
the liberty of interpreting law in its contextual and social setting keeping in view
the social and economical political etc. Indian society. The power of review the
doctrine of overruling its earlier decision has enabled the SC to effectuate socio
economic content of the constitutional mandate.5 Through the process of judicial
interpretation and use of its inherent power of. Thus in apex court in Bengal
Immunity case overruled its earlier decision6. Dwaraka vs shipping and
weaving co. and observed that “the court” is bound to obey the constitution rather
than any other court. the court further observed that where a constituitional
decision affect the lives and property of the public and where the court finds that
its earlier decision is manifestly wrong and injurious to the pubil interest, it should
not hesitate to overrule the same.

In the case of golaknath Vs. State of Punjab Air 1971 SC speaking through
Subbarao CJ “while ordinarily the SC will be relectent to revise its previuo\s
decision, its duty on the constitutional field to correct itsels as early as possible, for
otherwise the further progress of the country and happiness of the people will be at
a stake”.

Adopting a same line of approach justice BP Gajendra Gadkar in keshev mills

Vs. Income Tax commisioner 7 observed that SC has inherent jurisdiction to
reconsider and revise its earlier decision if it does not serve the interest of public
good.

5
Part III, IV,of the constitution of India
6
Bengal Immunity Ltd vs. State of Bihar Air 1955 SC 661.
7
Air 1965 Sc 1616

DILNISAR Page 7
The observation made by Justice K. Ramaswamy deserve a special mention in
context of realism in interpretationof the constitution and the law of land to quote
his words he observed:-

“The judge is the living oracle working in the dry light of realism pouring life or
force into the dry bones of law to articulate the felt necessities of the time.”

Basic Features of realistic school:

In strict sense of the term, realists define law as generalized prediction of what the
courts will do the main characterstics feature of realist jurisprudence as stated by
Goodhard are as follows8:-

1. Realist believe that there can be no certainty about law as its predictability
depends upon the set of facts which are before the court.
2. They do not support the formal, logical and conceptual approach to law
because the court while deciding a case reaches its decision on emotive
rather than logical grounds.
3. They prefers to evaluate any part of law in term of its effect.

8
D.R NV PRANJAYPE ,PAGE NO 82 “STUDIES IN JURISPRUDENCE AND LEGAL THEORY

DILNISAR Page 8
Law making provision under constitution of India:-

Art 141 declared by constitution of India:-

Law Declared by the SC to be binding on all courts- provides the law declared by the Supreme
Court shall be binding on all courts within the territory of India Means that Supreme Court is not
bound by its own decision and may in proper case reverse its previous decision9.

SC in the case of Bengal Immunity Corp. Vs. State of Bihar AIR 1955 SC 10, Held that there is
nothing in the Indian constitution which prevents the SC departing from its previous decision if it
is convinced of its error and its beneficial effects on the general interest of the public the court
also laid down the guidelines for overruling its earlier decision.

Stare decisis and Art. 141, Constitution of India

The principle of stare decisis is embedded in latin Maxim ‘stare decisis et non quieta movere’,
firmly entrenched in British system of doctrine of binding precedent and embodied in Article 141
of the Constitutions of India, in short ‘Constitutin’ if provides that the law declared by Supreme
Court shall be binding on all courts within the territory of India. The expressions ‘binding’ and
‘on all courts’ catch our eyes. It is to be discerned as to what is binding and determined whether
the Supreme Court is bound by its own decisions.

Article 142 of the Indian constitution, (Inherent Power of SC)

Article 142 provides that SC in exercise of its jurisdiction may pass such degree or make such
order as is necessary for doing complete justice in any cause or matter pending before it, and any
degree so passed or order so made shall be enforceable throughout the territory of india in such
manner as may be prescribed by or under any law made by parliament and, until provision in that
behalf is so made in such manner as the president may by order prescribed11.

9
Bare act “constitution of india”
10
AIR 1955 SC
11
. “the constitution of india” Dr J.n panday

DILNISAR Page 9
Esp Rajaram Vs. Union of India, AIR 2001 SC 581, the SC held under Art 142 the SC has
power to pass such decree or make such order as is necessary for doing complete justice in any
case or matter pending before it. The provision contains no limitation regarding the causes or
circumstances in which the power can be exercised. The exercise of the power is completely to
the discretion of the highest court.

Article 143 Power of the president to consult SC-

If at any time it appears to the president that a question of law or fact has arrival or is likely to
arise which is of such a nature and of public importance it is expedient to obtain the opinion of
SC, he may referred the question to the SC for consideration and court may if it think fit report to
the president, its opinion thereon12.

Kerela Education Bill case13:- the court has express the view that the advisory opinion under
article is not binding on courts because it is not law within the meaning of article 141.

In the land mark judgment Ismail Farooqui Vs. Union of India 14 (five judge bench held the
presidential reference seeking the SC opinion whether a temple originally existed at the site
where the Babri Masjid subsequently stood was superfluous and unnecessary and opposed to
secularism and favour one community and therefore does not required to be answered.

Role of Judiciary in the making of law:-

Judicial lawmaking that bridges the gap between law and society must be consistent not only with
society’s basic values but also with society’s fundamental perception of the role of the judiciary.  The
power of a judge to bridge the gap between law and society in a society that, like Montesquieu,  sees
the judge merely as the mouthpiece of the legislature is different from the judge’s power in a society
that views comprehensive judicial lawmaking as legitimate. Society’s perception of the judicial role,
however, is fluid. Not only is judicial activity influenced by it, it also influences that perception.

12
M.p jain constitution of india
13
AIR 1958, SC-956
14
(1994) 6 SSC 360

DILNISAR Page 10
The SC has observed the fact that it cannot be assumed that the legislative function are
performed by the legislature the executive function by the executive and the judiciary function
by judicial although it is indeed possible to characterized the precision that any particular agency
of the state is the executive legislative and judicial but it cannot be predicted that particular
function exercised by any individual agency is essentially of the character that it bear. So the
judiciary and particularly Sc of India can be said to be duly authorized and empower to
participate in the governance of country by judicial law making in the manner and to the extent
specified by the constitution of India

The judge is responsible for all of this. He must interpret the individual statute consistently with the
whole system and ensure that the interpretation succeeds in bridging the gap between law and life.
From this perspective, the judge’s role in creating common law (as a senior partner) is similar to the
judge’s role in interpreting legislation (as a junior partner).In both cases the judge works in the
interstices of legislation. Of course, he has a different degree of freedom in each situation, but his
role is primarily the same: to bridge the gap between law and society. A judge must therefore
consider the elements discussed above the need to guarantee stability through change and to take
systemic and institutional considerations into account in bridging the gap between law and society,
both by creating common law and by interpreting legislation

JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION:-

The phrase ‘judicial activism’ carries more than one connotation. The common law tradition
conceives of courtroom litigation as an adversarial process where the onus is on the pleaders to
shape the overall course of the proceedings through their submissions. In this conception, the
role of the judge is cast in a passive mould and the objective is to dispassionately evaluate the
arguments made by both sides. However the actual experience of a courtroom clearly bears
witness to the tendency on part of some judges to pose incisive questions before the practitioners.
This may have the consequence of proceedings being judicially-directed to a certain degree.

DILNISAR Page 11
 While this literal understanding of activism from the bench may have its supporters as well as
detractors, the focus of my talk will be on another understanding of ‘judicial activism’

Judicial Activism: The 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.
In India, on the other hand, these modern principles and institutions were not a product of our
own struggles.  They were imported from the West and then transplanted from above on a
relatively backward, feudal society, the aim being that they will pull India forward into the
modern age.
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 upto 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.

DILNISAR Page 12
            In 1967 the Supreme Court in Golakh Nath v. State of Punjab 15, 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, AIR 1973
SC 1461 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.

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 this connection it may be mentioned that when the Indian Constitution was being
framed the Constitutional Adviser Mr. B.N. Rau went to America and met Justice Frankfurter,
the celebrated Judge of the U.S. Supreme Court, to seek his advice.  Justice Frankfurter advised
that the Indian Constitution should not have a due process clause as that had created a lot of
difficulties in America.  Hence following his advice, and following the language used in the
Japanese Constitution, only procedural due process was adopted in the Indian Constitution, and
not substantive due process.  Also, before the word `liberty’ the word `personal’ was added to
clarify that liberty did not include liberty of contract.

In A.K. Gopalan v. State of Madras,16 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
15
AIR 1967 SC 1643 
16
AIR 1950 SC  27

DILNISAR Page 13
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,17 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 18 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.19 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.

D. K. Basu vs. State of West Bengal, the Supreme Court stated that "a citizen does not shed off his
fundamental right to life . . . the moment a policeman arrests him." In other words, every citizen,
regardless of their position or status in society, deserves the protection afforded them under the

17
, AIR 1978 SC 597    
18
AIR 1978 SC 597
19
(1994) 6 SCC 632
DILNISAR Page 14
Constitution. However, the Supreme Court was aware that this is not always the case in practice.
Thus, it issued 11 requirements to be followed in all cases of detention. Among the most notable
guidelines is that police must make a memo of arrest to be countersigned by a witness and the
arrested person, and the friends or relatives of anyone arrested should be informed of the arrested
person's location. Moreover, the police must keep a diary with the names of the custodial police
officers, and the detainee must be medically examined at the time of their arrest and every 48 hours
afterward.

The theory behind these guidelines, especially those involving documentation of the arrest
procedure, is to ensure that the laws regarding arrest and detention are properly followed and
respected.

People's Union for Civil Liberties vs. Union of India 20that. In this case, the Supreme Court
acknowledged the right to food as a right to life issue under Article 21 of the Constitution, stating,
"What is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute
women, destitute men who are in danger of starvation, pregnant and lactating women and destitute
children, especially in cases where they or members of their family do not have sufficient funds to
provide food for them." In a similar fashion, the Supreme Court enforced the right to food by
creating programmes designed to prevent hunger in all states. On Nov. 28, 2001, the Supreme Court
issued an order that significantly made these programmes "entitlements" of all citizens. Among these
entitlements were the food for work programme and the targeted public distribution scheme, which
entitled each family to 25 grams of grain per month. Perhaps most significant was the midday meal
programme requiring primary schools to supply a midday meal consisting of 300 calories and eight
to 12 grams of protein. Moreover, governments were asked to take measures to ensure the
transparency and public awareness of these programmes.

This monumental decision is important, both because it recognised the right to food as an
enforceable right and because it sought to enforce government programmes to counteract the effects
of hunger throughout the country. In addition, the Supreme Court directed India's states to
implement these programmes within certain time frames, which was intended to ensure
accountability and proper enforcement of the decision.

20
AIR 1997 SC 568

DILNISAR Page 15
Unni Krishnan, J.P., v. State of A.P21. and Others The Court held that the right to basic education
is implied by the fundamental right to life (Article 21), when read in conjunction with the directive
principle on education (Article 41). The Court held that the parameters of the right must be
understood in the context of the Directive Principles of State Policy, including Article 45 which
provides that the state is to endeavor to provide, within a period of ten years from the
commencement of the Constitution, for free and compulsory education for all children under the age
of 14.

The Supreme Court also ruled that the right to life guaranteed under Article 21 includes the right
to livelihood as well.22 The right to food as a part of right to life was also recognised in Kapila
Hingorani Vs. Union of India23 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,[54] 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,24 right against solitary confinement, right against handcuffing and bar fetters, 25 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.
21
1993 SCC 645
22
Oliga Tellis Vs. Bombay Municipal Corporation; AIR 1986 SC 180
23
2003 6 SCC 1
24
P. Katara Vs. Union of India, (1998) 4 SCC 286
25
Charles Shobhraj Vs. Delhi Admi.
DILNISAR Page 16
 In Budhadev Karmaskar vs. State of West Bengal 26, a bench of which I was the senior
member directed the government to try to rehabilitate sex workers. In India there are hundreds of
thousands of them. These women enter the flesh trade not because they enjoy it but because of
abject poverty. Hence we directed the Central and  State Governments to prepare schemes for
giving some technical training to these sex workers so that they can earn their bread not by
selling their bodies but  by some technical skills, and we formed a committee headed by a senior
Supreme Court lawyer for overseeing this. This case is still being heard from time to time even
after my retirement in 2011 by another bench.
Aruna Shanbang vs. Union of India 27 we declared passive euthanasia valid, but subject to some
restrictions. We did this because often when a person goes into come and is on life support in
hospital the relatives cannot go on paying for the hospital expenses, although the doctors have
declared that the patient will not come out of the coma.

In the case of Divisional Manager Aravali Golf Club Vs. Chander , 2008 SC. The judgment
delivered by Justic Markanday Katju he has tried to put limitation upon the power of judicial
activism the issue was whether excessive judicial activism would distort the harmonious
functioning of three organs of the governance. The harmony among the three is the bedrock of
the constitution and constitution does not stipulate the situation of conflict among the three
organs. Judicial activism to an extent may be proper particularly when it is a question of
compelling necessity to conserve certain fundamental rights or to attain the DPSP,s. thus it is for
the court to itself determine where to draw the line.
Murli S deora Vs. Union of India 2001 SC. The SC has directed all the state and union
territories to immediately issue orders banning smoking in public place and public transport
including railway. The order banning smoking in public place would include hospital, institute
and educational institutes’ courts.

MC Mehta Vs. State of Tamil Nadu, AIR 1991 SC 417. SC held that children cannot be
employed in Match factories which are directly connected with the manufacturing process as it is
hazardous employment within the meaning of employment of children Act 1938.

26
, Crime Appeal 135/2010
27
2011 SSC 454

DILNISAR Page 17
Ankur Gutkha vs. Indian Asthma Care Society. 2013 SC

The Supreme Court sought compliance reports from all state governments that have banned the
sale and manufacture of gutkha and paan masala containing tobacco. They have been given four
weeks to submit their reports. Gutkha, zarda, pan masala, gul, bajjar and such other toxic and
addictive forms of chewing tobacco are mandated to be banned by various states, as per
Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales)
Regulations of 2011, made under the Food Safety and Standards Act. At the moment, 23 states
and five Union Territories in India have banned the gutkha products. The bench comprising
Justices G S Singhvi and Kurian Joseph issued notices to the health secretaries of all the 23
states and 5 Union Territories to file compliance reports on the implementation of the ban. The
court also asked why the products have not been banned in other states and why Regulation 2.3.4
has not yet been implemented. The Supreme Court passed its order after the submissions by
additional solicitor general Indira Jaisingh on behalf of the Centre that gutkha is being
manufactured and sold in these states, including Delhi, Uttar Pradesh and Maharashtra, in
violation of law. She also claimed that the rules are not being properly implemented by the state
authorities .Prashant Bhushan, appearing for Health for the Million Trust, in his submissions
underlined how the ban is not being properly enforced as there is no control over manufacturing
units. The banned products are also easily available from states where gutkha has not been
banned. Advocate Vishnu Behari Tewari, appearing on behalf of Indian Dental Association,
demanded a nationwide ban on all forms of chewing tobacco products.

Doctrine of Prospective Overruling – Meaning

The basic meaning of prospective overruling is to construe an earlier decision in a way so as to

suit the present day needs, but in such a way that it does not create a binding effect upon the
parties to the original case or other parties bound by the precedent. The use of this doctrine
overrules an earlier laid down precedent with effect limited to future cases and all the events that
DILNISAR Page 18
occurred before it are bound by the old precedent itself. In simpler terms it means that the court
is laying down a new law for the future.

There are two aspects to the doctrine of prospective overruling. The first aspect was laid down
by Lord Blackstone, according to this theory Judges don't make the law; their job is to define the
law. They should however follow the doctrine of Stare Decisis. The doctrine of Stare Decisis
means "to stand by precedent and not to disturb the settled point of law"1; the logic behind this
doctrine is that people should not get confused as to what is legal and what is illegal.

1. N.K Jayakumar “Judicial Process in India” APH Publishing Corporation.

The advocates should be able to clarify to their clients the exact law and not get confused
themselves. So accordingly it connotes that it should be up to the judges to decide which
decision should be affected retrospectively and which one should be adapted
prospectively. This theory is in total conflict with the Doctrine of Prospective Overruling.
2. The second aspect was propounded by Cardozo J. and Lerned Hand J. who were
strongly in support of the Doctrine of Prospective Overruling. According to them if this
doctrine is not given effect it will wash away the whole dynamic nature of law, it will be
against the concept of judicial activism. Cardozo J. was of the view that the law should
keep up with the changes occurring in the society, the law has to be dynamic and not
static. If in a new and changed society, the citizens are bound by an old law it will lead to
grave injustice. The citizens whose lives are bound by the law of land should be given
laws according to changed needs. Therefore the doctrine of Prospective Overruling is an
important tool in the hand of judiciary to give fair and timely justice to its citizens. The
Doctrine of prospective overruling supplies the gap in legal theory and offers the
doctrinal foundations for an extended view of judicial function with built in discretion in
the Court to indicate the time dimension and the type of cases for which the holding in a
particular case shall have operative effect. Mathew J. explains the thrust of the rationale
behind the doctrine of prospective overruling by observing that it is not meant to supplant
the Black stonian doctrine but' is a necessary device in any system of law to protect the
interest of the litigant public when judicial overruling of a precedent entails a change in
the law2.

DILNISAR Page 19
 Applicability of Prospective Overruling in India
The concept of the Doctrine of prospective overruling has now been accepted in its full
form in India. This doctrine was for the first time applied in India Golak Nath Vs State
of Punjab28. The Doctrine of Prospective Overruling is now an integral part of the Indian
Legal System, it is enshrined in our jurisprudence but not in the fashion it is installed in
American jurisprudence. After Golak Nath's case the judiciary has given different views
over this doctrine. It can be said that the judiciary has itself tried to evade the discussion
over this issue of prospective overruling.

Prospective Declaration of Law

The purpose of prospective declaration of law by the Supreme Court is to avoid
reopening of settled issues and to prevent multiplicity of proceedings by implication, all
contrary actions taken prior to such declaration stand validated. The subordinate courts
are bound to apply the law to future cases only5. Sometimes the Court itself may fix a
date, decisions taken before which would not be disturbed, while invalidating a law or
over ruling a decision. Kailash Chand Sharma v. State of Rajasthan (2002) 6 SCC
562: AIR 2002 SC 2877.

The Supreme Court however, rejected the plea to apply the principle of prospective
overruling to protect allottees of petrol pumps and gas agencies by the concerned
minister, which was held to be indiscriminate in absence of any guidelines prior to the
decision in Centre for Public Interest Litigation case 1995 Supp (3) SCC 382. This was
stated in V. Purushotam Rao v. Union of India (2001) 10 SCC 382.

Public Interest Litigation

Evolution:-

28
AIR 1967 (SC) 1643

DILNISAR Page 20
 The judicial activism gets its highest bonus when its orders wipe some tears from some
eyes. This epistolary jurisdiction is somehow different from collective action. A number
of PIL cells were opened all over India for providing the footing or at least platform to
the needy class of the society. The innovation of this legitimate instrument proved
beneficial for the developing country like India. PIL has been used as a strategy to
combat the atrocities prevailing in society. It’s an institutional initiative towards the
welfare of the needy class of the society. Intervention of the court may be sought by way
of PIL in cases where the statutory provisions have arbitrarily and irrationally overlooked
the interests of a significantly affected group that would otherwise suffer in silence.
Public interest may demand judicial intervention in cases where the existing rules and
standards are not complied with due to indifference towards a particular group, unjustly
denying them any legal entitlements or resulting in unfair and hostile treatment. Public
Interest Litigation may provide a platform for projecting social values for those who do
not have a formal access or voice in the policy making processes.

The first reported case of PIL in 1979 focussed on the inhuman conditions of prisons and
under trial prisoners29. Then in Anil Yadav case30 the court took notice of the dastardly
acts of the Bihar Police who used to blind the suspected criminals by putting acid into
their eyes. In Bandu Mukti Morcha Case31 the Supreme Court ordered for the release of
bonded labourers. In another case the Supreme Court ordered that handcuffs and other
fetters shall not be forced upon the under trials and convicts 32. In a further case, the
Supreme Court ordered the banning of smoking in publ33ic places34. And there were many
judgements which were pronounced to uplift the women’s condition in the society.

There were numerous cases filed by M C Mehta for the cause of environment protection
which may not be possible if the concept of PIL were not there.

29
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
30
Anil Yadav v. State of Bihar AIR 1982 SC 1001.
31
Bandu Mukti Morcha v. Union of India (1984) 3 S.C.C. 161.
32
Citizens for Democratic Rights v. State of Assam (1995) 3 SCC 743.
33
34
Murli Deora v. Union of India AIR 2002 SC 40.

DILNISAR Page 21
 In Guruvayoor Devaswom Managing Committee and anr v. C K Rajan35 and ors, its
worth to note the comments of supreme court that, “the courts exercising their power of
judicial review found to its dismay that the poorest of poor, depraved, the illiterate, the
urban and rural unorganised labour sector, women, children, handicapped by ignorance,
indigence and illiteracy and other downtrodden have either no access to justice or had
been denied justice. A new branch of proceedings known as social interest litigation /PIL
was evolved with a view to render complete justice to the aforementioned classes of
persona. It expanded its wing in the course of time. The courts on pro bono publico
granted relief to the inmates of the prisons, provided legal aid, directed speedy trial,
maintenance of human dignity and covered several other areas. Representative actions,
pro bono publico and less litigation were entertained in keeping with the current access
in justice to the common man and a necessary disincentive to those who wish to pass by
the, real issues on the merits by suspect reliance on peripheral procedural
shortcomings….. pro bono publico constituted a significant state in the present day
judicial system. Then, however provided the dockets with much greater responsibility for
rendering the concept of justice available to the disadvantaged sections of the society
Procedural propriety was to move over giving place to substantive concerns to the
deprivation of rights. The courts in place once disinterested and dispassionate
adjudicator became active participant in the dispensation of justice”.

Remedial nature of PIL indirectly incorporated the principles enshrined in the part IV of
the constitution of India into part III of the Constitution. By riding the aspirations of part
IV into part III of the constitution had changed the procedural nature of the Indian law
into dynamic welfare one. An array of case decisions are the obvious example of this
change in nature of judiciary. The doctrine of citizen standing makes a significant
expansion of the courts rule, from protector of individual rights to guardian of the rule of
law wherever threatened by official lawlessness. The change as we have seen, are both
substantial and structural. It has radically altered the traditional judicial role so as to
enable the court to bring justice within the reach of the common man. Public interest
litigation is here to stay but the initial momentum seems to be missing. With the passage
of time, things have changed a lot, and the worst part is that it was for worst.
35
Guruvayoor Devaswom Managing Committee and anr v. C K Rajan and ors J.T. 2003 (7) S.C. 312.

DILNISAR Page 22
Article 32 of The Constitution Of India
Remedies for enforcement of rights conferred by this Part
(1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2)The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
Article 226(1) of The Constitution Of India
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose
Article 226(2) of The Constitution Of India
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories

Need for PIL:-

In the recent years the impact of PIL has been in wane. Some say it’s because of the
misuse of PIL. Some says that the number of PIL cases has increased a lot adding to the
burden of the judiciary, some others are the opinion that as the court cannot effectively
implement its verdict and the government too find it difficult to implement the courts
orders, as they feel India has not developed itself so much so as to avail all these rights to
the people enumerated in the constitution, adding to the financial troubles and lack of
bureaucratic will power. What ever may be the hollow excuses, nothing can be justified
in view with the rights guaranteed by the constitution. Now how this situation can be

DILNISAR Page 23
 rectified, what can be done to avail the rights of the common man, as guaranteed by the
Constitution? In order to answer this question we have to identify what are the inherent
problems with the entire system.. Not every one is in a situation where one can even
demand for justice. It seems that for a person to have access to justice he should have
several qualifications other than the fact that his right is denied which has been
guaranteed by the constitution or any law made there under. A person is supposed to buy
justice by paying fees which itself cannot be justified as it itself is violative of his right to
equality and access to justice. It means that a person with no money cannot avail justice.
And a rich man and a poor person stand in different footing when they approach the court
for justice. Apart from the fact that he is to comply with complex rules and procedures
and he himself is not competent to plead for justice, for which he is supposed to hire an
advocate by paying exorbitant amount, who will plead his case.

Majority of the citizens even doesn’t know that he has a right to life and
liberty and equality and so on. Then, how one can expect to know that he can approach
the courts for enforcement of his rights. But to an extend, this problem was solved by way
of public interest litigation by giving the opportunity to represent the diffused interest
before the court to the public spirited people. People who are concerned for others
welfare were permitted to file cases on behalf of the deprived class. This as has been said
above, has given many people relief which would otherwise, could not have been
provided. Time constraints are also there, which needs to be looked into. A major
function of the legal profession should be to assist people to obtain the social rights
provided by law and to ensure that laws designed to reduce inequality and provide
welfare payments operate as effectively as possible.

Supreme Court recognizes transgenders as 'third gender'

In a landmark judgment, the Supreme Court on Tuesday created the "third gender" status
for hijras or transgenders. Earlier, they were forced to write male or female against their
gender. The SC asked the Centre to treat transgender as socially and economically
backward. The apex court said that transgenders will be allowed admission in educational
institutions and given employment on the basis that they belonged to the third gender
category. The SC said absence of law recognizing hijras as third gender could not be

DILNISAR Page 24
 continued as a ground to discriminate them in availing equal opportunities in education
and employment. This is for the first time that the third gender has got a formal
recognition. The third gender people will be considered as OBCs, the SC said. The SC
said they will be given educational and employment reservation as OBCs. The apex court
also said states and the Centre will devise social welfare schemes for third gender
community and run a public awareness campaign to erase social stigma.

The SC said the states must construct special public toilets and departments to look into their
special medical issues. The SC also added that if a person surgically changes his/her sex, then he
or she is entitled to her changed sex and can not be discriminated. The apex court expressed
concern over transgenders being harasssed and discriminated in the society and passed a slew of
directions for their social welfare. The apex court said that trangenders were respected earlier in
the society but situation has changed and they now face discrimination and harassment. It said
that section 377 of IPC is being misused by police and other authorities against them and their
social and economic condition is far from satisfactory. The bench clarified that its verdict
pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are
also considered under the umbrella term 'transgender'. The bench said they are part and parcel of
the society and the government must take steps to bring them in the main stream of society. The
apex court passed the order on a PIL filed by National Legal Services Authority (NALSA).

LALITA KUMARI V. GOVT OF U.P

Guidelines issued by sc for police officer regarding FIR

A. However, if no cognizable offence is made out in the information given, then the FIR
need not be registered immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of ascertaining as to whether a
cognizable offence has been committed.
B. But, if the information given clearly mentions the commission of a cognizable offence,
there is no other option but to register an FIR forthwith
C. whether the information is credible etc. These are the issues that have to be verified
during the investigation of the FIR. At the stage of registration of FIR, what is to be seen
is merely whether the information given ex facie discloses the commission of a

DILNISAR Page 25
 cognizable offence. If, after investigation, the information given is found to be false,
there is always an option to prosecute the complainant for filing a false FIR..

Definition of 'Stare Decisis':-

. Stare decisis is a legal principle which dictates that courts cannot disregard the standard. The
court must uphold prior decisions. In essence, this legal principle dictates that once a law has
been determined by the appellate court (which hears and determines appeals from the decisions
of the trial courts) to be relevant to the facts of the case, future cases will follow the same
principle of law if they involve considerably identical facts.

Stare decisis and Art. 141, Constitution of India

            The principle of stare decisis is embedded in latin Maxim ‘stare decisis et non quieta
movere’, firmly entrenched in British system of doctrine of binding precedent and embodied in
Article 141 of the Consitution of India, in short ‘Constitution’ if provides that the law declared
by Supreme Court shall be binding on all courts within the territory of India. The expressions
‘binding’ and ‘on all courts’ catch our eyes. It is to be discerned as to what is binding and
determined whether the Supreme Court is bound by its own decisions.
Meaning of Stare decisis
            ‘Stare decisis’ means ‘to stand by decided cases meaning thereby” let the decision stand
in its right place36 ’. Wh have hierarchy of courts. The Supreme Court is at the top of pyramid. It
decides cases with a seal of finality. The decision is an authority for what it actually decides.
What is of essence in a decision is it ratio, and not every observation found therein,l nor what
logically flows from the various observations made in the judgment. The enunciation of the
reason or principle on which a question before a court has been decided is alone binding as a
precedent.
Law declared binding
            It is ‘law declared’ that is binding. The decision not express, nor founded on reasons, nor
proceeding on consideration of the issue cannot be deemed as ‘law declared

Stare decisis is a doctrine or policy of following rules or principles laid down in previous judicial
decisions. It is the principal that maintains that previous decisions are to be followed by the
36
Dr .n.v paranjapae studies in juries prudence and legal theory.

DILNISAR Page 26
courts. This policy dictates that the court must abide or adhere to decided cases. When a point
has been settled by a decision in court, this forms a precedent that must not be departed from.
However, this doctrine has been overruled by courts in some cases. International trade laws have
not always followed prevous decisions and thus might produce inconsistent decisions.

Ratio decidendi
Ratio decidendi (Latin plural rationes decidendi) is a Latin term meaning "the reason" or "the
rationale for the decision". The ratio decidendi is "the point in a case which determines the
judgment" or "the principle which the case establishes"

In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of
legal reasoning within a judgment on which the outcome of the case depends.

It is a legal phrase which refers to the legal, moral, political, and social principles used by a court
to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a
general rule, binding on courts of lower and later jurisdiction through the doctrine of stare
decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction
however, out of interests of judicial comity, they generally try to follow coordinate rationes.

The process of determining the ratio decidendi is a correctly thought analysis of what the court
actually decided—essentially, based on the legal points about which the parties in the case
actually fought. All other statements about the law in the text of a court opinion—all
pronouncements that do not form a part of the court's rulings on the issues actually decided in
that particular case (whether they are correct statements of law or not)—are obiter dicta, and are
not rules for which that particular case stands.

Ratio decidendi and Obiter dicta

            It is ratio decidendi that is binding, and not casual remarks, something said by the way,
statements on hypothetical fact-situations, or problems, which are passed for as obiter dicta. The
obiter dicta is the incidental question which may arise, indirectlly connected with the main
questions, for consideration. Normally even an obiter dictum of Supreme Court is expected to be
obeyed and followed. The observations on unreal questions decided in personam are not binding

DILNISAR Page 27
as precedent .obiter dicta is simply a passing refrence or remarks that is followed in
exceptionally circumstances
Shokeen case obiter dicta may be binding on the lower court or the high court in exceptional
cases37

Article 137 of Indian constitution

Review of judgments or orders by the Supreme Court Subject to the provisions of any law
made by Parliament or any rules made under Article 145, the Supreme Court shall have power to
review any judgment pronounced or order made by it. On the ground mention in oreder 57 rule 1
of CPCA review will lie in the SC or :-
1. Discovery of new important matters of evidence
2. Mistake or error on the face of record
3. Any other sufficient ground- Liknath Tla Ram Vs. BN Raghmani AIR 1975 SC, 279 38

R.D Sugar Vs. V. Nagari AIR 1`976 SC 2183 the SC has held the judgement of final
court of land is final a review of such judgement is an exceptional phenomenon permitted
only whre a grave and glaring error. Savita Kumari Vs Union of India , in a review
petition and a error of a substantial nature can be reviewed if there is a plea of self
defense is taken and if the court is satisfied that it is probable and there is basil for the
same and if the benefit is to be given to the accused than the litigity of conviction is itself
is involved.

Curative petition.

The concept of Curative petition was evolved by the Supreme Court of India in the matter of
Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an
37
Dr asad malik sir clas notes
38
Const of india dr j.n panday

DILNISAR Page 28
 aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court,
after dismissal of a review petition. The Supreme Court in the said case held that in order to
prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its
judgements in exercise of its inherent powers. For this purpose the Court has devised what has
been termed as a "curative" petition. Though review proceedings ordinarily render decisions
final, the Supreme Court, in a 2002 decision (Rupa Ashok Hurra v. Ashok Hurra) established
the curative petition that allows the Court to take up cases even after dismissal of review petition
provided that it involves gross miscarriage of justice or violation of natural justice. This is an
extraordinary process in which the Supreme Court can re-examine its previous decision in the
exercise of its “inherent power” to do justice.

In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned
therein had been taken in the review petition filed earlier and that it was dismissed by circulation.
This has to be certified by a senior advocate. The Curative petition is then circulated to the three
senior most judges and the judges who delivered the impugned judgement, if available. No time
limit is given for filing Curative petition. A curative petition was created by the apex court in
2002 as a mechanism for aggrieved parties to apply for relief after the dismissal of a review
petition.

On Tuesday, a four-judge bench comprising chief justice P. Sathasivam and justices R.M.
Lodha, H.L. Dattu and S.J. Mukhopadhaya considered the plea for an open hearing of the
curative petition filed by the Naz Foundation Trust, filmmaker Shyam Benegal, parents of
lesbian, gay, bisexual and transsexual persons, academicians, mental healthcare professionals
and Voices Against 377, an umbrella of non-government organizations. The Supreme Court will
hear on Tuesday a curative petition filed by gay activists and Naz Foundation seeking to cure
“defects” in the judgment upholding the validity of Section 377 IPC, which criminalises
homosexuality between two consenting adults A curative petition was created by the apex court
in 2002 as a mechanism for aggrieved parties to apply for relief after the dismissal of a review
petition. Since then, only two have been admitted.
 Navneet Kaur w/o Devender Pal Singh Bhullar, filed the present Curative Petition against
the dismissal of Review Petition (Criminal) No.435 of 2013 in Writ Petition (Criminal) No.
146 of 2011 on 13.08.2013, wherein she prayed for setting aside the death sentence imposed

DILNISAR Page 29
 upon Devender Pal Singh Bhullar by commuting the same to imprisonment for life on the
ground of supervening circumstance of delay of 8 years in disposal of mercy petition. this
Court, after examining and analyzing the materials brought on record by the respondents,
arrived at the conclusion that there was an unreasonable delay of 8 years in disposal of mercy
petition, which is one of the grounds for commutation of death sentence to life imprisonment
as per the established judicial precedents. Judgement by CJI sathasivam

Special Leave Petitions

Special Leave Petitions in Indian Judicial System the Constitution of India under Article 136
vests the Supreme Court of India with a special power to grant special leave to appeal against
any judgment or order or decree in any matter or cause passed or made by any Court/tribunal in
the territory of India.

This is special power bestowed upon the Supreme Court of India which is the Apex Court of the
country to grant leave to appeal against any judgment in case any substantial constitutional
question of law is involved or gross injustice has been done.

“Special leave petition” or SLP hold a prime place In the Indian judicial system. It provides the
aggrieved party a special permission to be heard in Apex court in appeal against any judgment or
order of any Court/tribunal in the territory of India

Special Leave petition or SLP can be presented under following circumstance:

1. SLP can be filed against any judgment or decree or order of any High Court /tribunal in
the territory of India.
2. SLP can be filed in case the High court refuses to grant the certificate of fitness for
appeal to Supreme Court of India. Time frame within which SLP can be filed: SLP can
be filed against any judgment of High Court within 90 days from the date of Judgement.

DILNISAR Page 30
 3. SLP can be filed within 60 days against the order of the High Court refusing to grant the
certificate of fitness for appeal to Supreme Court.

Who can file SLP?

Any aggrieved party can file SLP against the judgment or order of refusal of grant of certificate.

Contents of SLP:

This petition is required to state all the facts that are necessary to enable the court to determine
whether SLP ought to be granted or not. It is required to be signed by Advocate on record. The
petition should also contain statement that the petitioner has not filed any other petition in the
High court.

It should be accompanied by a certified copy of judgement appealed against and an affidavit by

the petitioner verifying the same and should also be accompanied by all the documents that
formed part of pleading in Lower court.

The scope of power vested with the Supreme Court of India under Article 136: The constitution
of India vest “discretionary power” in the Supreme Court of India. The Supreme Court of India
may in its discretion be able to grant special leave to appeal from any judgment or decree or
order in any matter or cause made or passed by any Court/tribunal in the territory of India.

Kunhayammed vs. State of Kerala 39The Supreme Court observed that Article 136 is of 2
distinct stages.The Court observed that while hearing the petition for special leave to appeal, this
court is called to see whether petitioner should be granted such a leave or not.The Court
observed that while hearing such a petition, this Court is not exercising its appellate jurisdiction
and is merely exercising its discretionary power to grant or not grant leave to appeal.

N. Suriyakala Vs. A. Mohandoss and Others 40The Supreme Court observed with regard to
scope of Article 136 that Article 136 of the Constitution is not a regular forum of appeal at all.
It is a “residual” provision which enables the Supreme Court to interfere with the judgment or
order of any court or tribunal in India in its discretion.

39
(2000) 245 ITR 360 (SC)
40
(2007) 9 SCC 196
DILNISAR Page 31
 In Delhi judicial service association Vs. State of Gujarat 41 held that under article 136 the
Supreme Court has wide ppower to interfere and correct the judgment and order passed by any
court or tribunal in the country. In addition to the applets power the court has special residuary
power to entertain appeal against any order of any court. Accordingly the court punish five
police officials for committing contempt of the chief judicial magistrate court of town Nandiad in
the state of Gujarat and also quashed the false criminal proceedings against the magistrate filed
by the police .

In another significant judgment of union carbide corporation Vs. Union of India 1991 SC.
Held that under article 136 court has inherent power to withdraw or transfer to original suit
pending in the district court of Bhopal and dispose of the same and also pending criminal
proceedings in the course of hearing of appeal arising out of the suit.

SC's power to grant special leave is discretionary Under article 136 of the Constitution of
India, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment,
decree or order made by any court or tribunal in India.

There are several recent pronouncements of the apex court on the circumstances in which a
special leave petition may be admitted or dismissed. Article 136 of the Constitution of India
confers a special jurisdiction on the Supreme Court which is sweeping in nature. It is a residuary
power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to
special leave being granted in such matters as may not be covered by the preceding articles.

Even in the field covered by the preceding articles, jurisdiction conferred by article 136 is
available to be exercised in an appropriate case. It is an untrammelled reservoir of power
incapable of being confined to definitional bounds; the discretion conferred on the Supreme
Court being subjected to only one limitation, that is, the wisdom and sense of justice of the
judges. No right of appeal is conferred upon any party; only a discretion is vested in the Supreme
Court to interfere by granting leave to an applicant.

41
(1991)4SCC 406

DILNISAR Page 32
The jurisdiction conferred by article 136 is divisible into two stages : the first stage is upto the
disposal of the prayer for special leave to appeal; the second stage commences if and when the
leave to appeal is granted and the petition for special leave to appeal is converted into an
appeal.While hearing the petition for special leave to appeal, the Supreme Court is called upon to
see whether the petitioner should be granted such leave or not. While hearing such petition it
does not exercise its appellate jurisdiction; it merely exercises its discretionary jurisdiction to
grant or not to grant leave to appeal.

If the petition seeking grant of special leave is dismissed, it is an expression of opinion by the
Supreme Court that a case for invoking the appellate jurisdiction of the Court was not made out.

If the order refusing special leave to appeal is a speaking order, ie., it gives reasons for refusing
the grant of leave, then the order has two implications. Firstly, the statement of law contained in
the order is a declaration of law by the Supreme Court within the meaning of article 141 which
will obviously be binding on all courts and tribunals in India and certainly the parties thereto.

Secondly, other than the declaration of law, whatever is stated in the order are the findings
recorded by the Supreme Court which would be binding on the parties and the court, tribunal or
authority whose order was under challenge, in any proceedings subsequent thereto, on the
principle of judicial discipline, the Supreme Court being the apex court of the country. The
declaration of law will be governed by Article 141 but, the case not being one where leave is
granted, the doctrine of merger does not apply.Inspite of a petition for special leave to appeal
having been filed, the judgment, decree or order against which leave to appeal has been sought
for, continues to be final, effective and binding as between the parties.

RECENT CASES

National legal service authority v. uoi (2014) SC.

The apex court said that transgenders will be allowed admission in educational institutions and
given employment on the basis that they belonged to the third gender category. The SC said

DILNISAR Page 33
absence of law recognizing hijras as third gender could not be continued as a ground to
discriminate them in availing equal opportunities in education and employment. This is for the
first time that the third gender has got a formal recognition. The third gender people will be
considered as OBCs, the SC said. The SC said they will be given educational and employment
reservation as OBCs. The apex court also said states and the Centre will devise social welfare
schemes for third gender community and run a public awareness campaign to erase social
stigma. The SC said the states must construct special public toilets and departments to look into
their special medical issues. The SC also added that if a person surgically changes his/her sex,
then he or she is entitled to her changed sex and can not be discriminated. The apex court
expressed concern over transgenders being harasssed and discriminated in the society and passed
a slew of directions for their social welfare. The apex court said that trangenders were respected
earlier in the society but situation has changed and they now face discrimination and harassment.

It said that section 377 of IPC is being misused by police and other authorities against them and
their social and economic condition is far from satisfactory. The bench clarified that its verdict
pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are
also considered under the umbrella term 'transgender'. The bench said they are part and parcel of
the society and the government must take steps to bring them in the main stream of society. The
apex court passed the order on a PIL filed by National Legal Services Authority (NALSA)
urging the court to give separate identity to transgenders by recognising them as third category of
gender.

Lily Thomas v. uoi(2013)SC

Sc held that if MPs , MLC,or MLAs, are convicted of of an offence punishable with with more
than two year ,will be disqualified as an elected representatives on the date of conviction .
furthermore, sec 8(4) of representatives of people act ,which allowed elected representatives
three month to appeal as declared unconstitutional by the bench of justice A.K. Patnayak and
justice Mukhopaddhaya.

A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional
Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-

DILNISAR Page 34
month period for filing appeal to the higher court and to get a stay of the conviction and
sentence. The Bench, however, made it clear that the ruling will be prospective and those who
had already filed appeals in various High Courts or the Supreme Court against their convictions
would be exempt from it.

Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person
convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1)
(2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified
for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection
to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within
three months.

Laxmi v. uoi (2013) SC Criminal Writ Petition 129 of 2006

SC laid down guidelines to prevent the acid attack .

On 6.2.2013, a direction was given to the Home Secretary, Ministry of Home Affairs associating
the Secretary, Ministry of Chemical & Fertilizers to convene a meeting of the Chief
Secretaries/concerned Secretaries of the State Governments and the Administrators of the Union
Territories, inter alia, to discuss the following aspects:

i) Enactment of appropriate provision for effective regulation of sale of acid in the States/Union
Territories.

(ii) Measures for the proper treatment, after care and rehabilitation of the victims of acid attack
and needs of acid attack victims.

(iii) Compensation payable to acid victims by the State/or creation of some separate fund for
payment of compensation to the acid attack victims.

3. Various State Governments/Union Territories have filed their affidavits. The Union of India
filed its last affidavit on 17.7.2013. Along with that affidavit, draft Model Rules entitled “The
Poisons Possession and Sale Rules, 2013” (for short “Model Rules”) have been placed on record.
Mr. Mohan Parasaran, learned Solicitor General states that the Central Government will circulate

DILNISAR Page 35
the Model Rules to regulate sale of acid and other orrosive substances framed under the Poisons
Act, 1919 to all the State Governments and Union Territories within a week from today. He also
states that Model Rules will include, inter alia, the form of acids (liquids or crystalline and its
concentration) that can be stored and sold, issue of licenses, procurement by individuals,
educational and research institutions, hospitals, industries, Government Departments and
departments of Public Sector Undertakings.

4. the States and Union Territories are concerned, we are informed that the States of
Maharashtra, Karnataka, Kerala, Haryana, Punjab, Madhya Pradesh, Sikkim and Arunachal
Pradesh have framed rules to regulate sale of acid and other corrosive substances.

5. In our opinion, all the States and Union Territories which have not yet framed rules will do
well to make rules to regulate sale of acid and other corrosive substances in line with the Model
Rules framed by the Central Government. The States, which have framed rules but these rules
are not as stringent as the Model Rules framed by the Central Government will make necessary
amendments in their rules to bring them in line with the Model Rules. The Chief Secretaries of
the respective States and the Administrators of the Union Territories shall ensure compliance of
the above expeditiously and in no case later than three months from the receipt of the draft
Model Rules from the Central Government.

6. The Centre and States/Union Territories shall work towards making the offences under the
Poison Act, 1919 cognizable and non-bailable.

7. In the States/Union Territories, where rules to regulate sale of acid and other corrosive
substances are not operational, until such rules are framed and made operational, the Chief
Secretaries of the concerned States/Administrators of the Union Territories shall ensure the
compliance of the following directions with immediate effect:

i) Over the counter, sale of acid is completely prohibited unless the seller maintains a log/register
recording the sale of acid which will contain the details of the person(s) to whom acid(s) is/are
sold and the quantity sold. The log/register shall contain the address of the person to whom it is
sold.

DILNISAR Page 36
(ii) All sellers shall sell acid only after the buyer has shown:

a) a photo ID issued by the Government which also has the ddress of the person:

b) specifies the reason/purpose for procuring acid.

(iii) All stocks of acid must be declared by the seller with the concerned Sub-Divisional
Magistrate (SDM) within 15 days.

(iv) No acid shall be sold to any person who is below 18 years of age.

(v) In case of undeclared stock of acid, it will be open to the concerned SDM to confiscate the
stock and suitably impose fine on such seller up to Rs. 50,000/-

(vi) The concerned SDM may impose fine up to Rs. 50,000/- on any person who commits breach
of any of the above directions.

8. The educational institutions, research laboratories, hospitals, Government Departments and the
departments of Public Sector Undertakings, who are required to keep and store acid, shall follow
the following guidelines:

(i) A register of usage of acid shall be maintained and the same shall be filed with the concerned
SDM.

(ii) A person shall be made accountable for possession and safe keeping of acid in their premises.

(iii) The acid shall be stored under the supervision of this person and there shall be compulsory
checking of the students/ personnel leaving the laboratories/place of storage where acid is used.

9. The concerned SDM shall be vested with the responsibility of taking appropriate action for the
breach/default/ violation of the above directions. 10

10. Section 357A came to inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009
w.e.f. 31.12.2009. Inter alia, this Section provides for preparation of a scheme for providing

DILNISAR Page 37
funds for the purpose of compensation to the victim or his dependents who have suffered loss or
injury as a result of the crime and who require rehabilitation.

11.We, accordingly, direct that the acid attack victims shall be paid compensation of at least Rs.
3 lakhs by the concerned State Government/Union Territory as the after care and rehabilitation
cost. Of this amount, a sum of Rs 1 lakh shall be paid to such victim within 15 days of
occurrence of such incident (or being brought to the notice of the State Government/Union
Territory) to facilitate immediate medical attention and expenses in this regard. The balance sum
of Rs. 2 lakhs shall be paid as expeditiously as may be possible and positively within two months
thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories
shall ensure compliance of the above direction.

12. The Chief Secretaries of the States and Administrators of the Union Territories shall take
necessary steps in getting this order translated into vernacular and publicise the
sameappropriately for the information of public at large.

People union for civil liberties(PUCL) v. uoi (2013)SC judgement by Former CJI
Sathasivam

The sc ,upheld the constitutional right of citizens to cast a negative vote(nota)the constitutional
validity of rules 41(2),(3) and 49-0of the conduct of election rules ,1961,impunged the
combined effect of these rules was the persons who did not vote in election were recorded as
having not voted.

Suresh kumar kousal v. Naz Foundation

. In 2009, the Delhi High Court had held that Section 377 violated Articles 14, 15 and 21 of the
Constitution. The apex court on December 11, 2013, set aside this ruling and upheld the
validity of Section 377. the Supreme Court recently dismissed a petition seeking review of the
Suresh Kumar Koushal judgment that upheld the criminalisation of homosexuality in Section
377 of the Indian Penal Code

DILNISAR Page 38
.

Lalita Kumari V Govt. of UP :-

The sc issued guidelines for police officer while registering the F.I.R

I. Therefore, we are of the cogent view that mandatory registration of FIRs under
Section 154 of the Code will not be in contravention of Article 21 of the Constitution
Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the
mandatory registration of FIRs on receipt of all cognizable offence, ,
II. there may be instances where preliminary inquiry may be required owing to the change in
genesis and novelty of crimes with the passage of time. One such instance is in the case
of allegations relating to medical negligence on the part of doctors. It will be unfair and
inequitable to prosecute a medical professional only on the basis of the allegations in the
complaint
III. Therefore, in view of various counter claims regarding registration or non-registration,
is necessary is only that the information given to the police must disclose the commission
of a cognizable offence. In such a situation, registration of an FIR is mandatory.
IV. However, if no cognizable offence is made out in the information given, then the FIR
need not be registered immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of ascertaining as to whether a
cognizable offence has been committed. But, if the information given clearly mentions
the commission of a cognizable offence, there is no other option but to register an FIR
forthwith
V. whether the information is credible etc.. At the stage of registration of FIR, what is to be
seen is merely whether the information given ex facie discloses the commission of a
cognizable offence. If, after investigation, the information given is found to be false,
there is always an option to prosecute the complainant for filing a false FIR..

DILNISAR Page 39
 Conclusion

In a democracy, the role of judiciary is crucial.  Judiciary is a faithful keeper of the constitutional
assurances. An independent and impartial judiciary can make the legal system vibrant. Our Indian
judiciary can be regarded as a creative judiciary. Credibility of judicial process ultimately depends
on the manner of doing administration of justice. Justice K. Subba Rao explains the function of the
judiciary as thus

DILNISAR Page 40
 It is a balancing wheel of the federation;

 It keeps equilibrium between fundamental rights and social justice;

 It forms all forms of authorities within the bounds;

 It controls the Administrative Tribunals.

Justice – Social, economic and political is clearly laid down in the preamble as the guiding
principle of the constitution. Social justice is the main concept on which our constitution is
built. Part III and IV of Indian constitution are significant in the direction of Social Justice and
economic development of the citizens. Judiciary can promote social justice through its
judgments. In other sense, they are under an obligation to do so. While applying judicial
discretion in adjudication, judiciary should be so cautious. And prime importance should be to
promote

Supreme Court had itself suggested in one of the early and landmark case (Bandhu Mukti
Morcha v Union of India 1984) I SCC 161, 234) that There is a great merit in the
court proceedings to decide an issue on the basis of strict legal principle and avoiding
carefully the influence of purely emotional appeal.  For that alone gives the decision of the
court a direction which is certain and unfaltering, and that especial permanence in
legal jurisprudence which makes it a base for the next step forward in the further progress of
the law.  Indeed both certainty of substance and certainty of direction are indispensable
requirement in the development of the law and invest it with credibility which commands
public confidence in its legitimacy.

The Court must take care to see that it does not overstep the limits of its judicial function and
trespass into areas which are reserved to the executive and the legislature by the constitution. 
Clear violation of constitutional or statutory provision must be interfered by the apex
judiciary.  If a considered policy decision has been taken which is not in conflict with any law
or is not malafide, it will not be in Public Interest to require the court to go into and
investigate those areas which are the function of the executive.  When two or more options or
views are possible and after considering them the government takes a policy decision it is then
not the function of the court to go into the matter a fresh and in a way, sit in appeal over such

DILNISAR Page 41
a policy decision (Balco v. Union of India (2002) 2 SCC 333) .whatever method adopted by
judiciary in adjudication, it must be the procedure known to the judicial tenets. .

Bibliography
 JUDICIAL LAW MAKING BY M.S PHIROZA Ankelesaria
 Judicial law making by man raj singh “andra law times
 Bare act “constitution of india”
 the constitution of india” Dr J.n panday.
 M.p jain” constitution of india”

DILNISAR Page 42
  Constitution law of india “V.N.Shukla.
 Dr .n.v paranjapae “studies in jurisprudence and legal theory”
 Internet

DILNISAR Page 43