LL.M.

- SEM – II

JUDICIAL PROCESS

Nature and scope of Judicial Process as an instrument of Social Ordering :

Everything done by the judge is an process of attaining justice is called Judicial Process.

Judicial Process is basically whole complex phenomenon of court and to find the lacunae
in the midst of process is what the object of this project.

Social ordering means activating the instument of Judicial Process in setting right the
wrong done or eliminating injustice from the society.

Article 21 deals with the lacunae in the judgment delivery system i.e., the judicial process
in India with decided case laws and the way forward. If error is done accidentally, its a
mistake and if error persists for a long time, its called Injustice.

Judicial Porcess as an instument of Social Ordering :

Article 32 of the Constituion empowers the Supreme Court to issue directions or orders
or writs for enforecement of any right conerred under the Constitution for securing social
justice. The Supreme Court has granted great relief in cases of social injustice to the
affected groups of the society under this provision. Article 32 is an important instrument
of judicial process to enfore social ordering. The Supreme Court has played positive role
in implementing social order.
1. Judicial power is invoved in the legal ordering of facts and is under the obligation
to approximate ís'to óught'. This ordering is nothing but the performance of
adminstrative duties. Supremacy of law implied that it is equally applied and
nobody is above the law.

2. Enforcement of Fundamental Rights : Article 32 is an important instrument of

judicial process to enforece social ordering whtich empowers the Supreme Court
to issue directions or irders to writs for eformecement f any right conferred unde
rthe Constitution for securing social justice.

3. Supreme Court is a sentinel of all fundamental rights : Article 32 empowers the

Supreme Court while Article 226 empowers the High Courts to issue writs
against any authority of the State in order to enforece the Fundamental Rights.

4. Social Ordering invoves an alteration of society; its economic structure, values and
beliefs, and its economic, political and social dimensions also undergo
modification. However, social ordering does not affect all aspects of society in the
same manner.

5. Legal prohibition of untoucability in free india has not succeeded because of

inadequate social support.
6. After independence, the Constitution of India provided far-reaching guidelines for
ordering. Its directive principle suggested a blue-print for a new nation. The

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 derecognition of caste-system, equality before the law, and equal opportunities for
all i economic, political and social spheres were some of the high points of the
Indian Constitution.

8. Social ordering involves an alteration of society; its economic struture, values and
beliefs, and its economic, political and social dimensions also undergo
modification.

9. Social ordering does not affect all aspects of society in the same manner. While
much of social ordering is brought about by material orderings such as
technology, new patterns of production, etc. Other conditions are also necessary.

10. Legal prohibitoin of untouchability in free India has not succeeded because of
inadequate social support. Nonetheless, when law cannot bring about ordering
without social support, it still can create certain preconditions for social ordering.

Now it will be appropriate to examine the areas in which judicial process play a vital
role in eliminating social dis-order :

1. Backward Clasess of the Society : Indira Sawhney Vs Union of India – Appex

court has innovated conept of çreamy layer test'for securing benefit of social
justice to the backward class, needy people, and excluded persons belonging to
çreamy layer'.

2. Bigamy : Bigamy is a social evil which often creates social disorder.

Lily Thomas Vs Union of India – Apex Court held that the second marriage of
Hindu husband after conversion to Islam without having his first marriage
dissolved under law, would be invalied, the second marriage would be void in
terms of the provisions of Section 494 of IPC.

3. Bride Burning : Paniben Vs State of Gujarat – Apex Court held that it would be
a travesty of justice if sympathy is shown when cruel act like bride burning is
committed. In such cases heavy punishment should be awarded.

4. Casted system and Judicial process : Lata Singh Vs State of U.P. - Apex court
has given protection ot the major boy and girl who have solemnnized inter-caste
or inter-religious marriage.

5. Child Labour : M.C. Mehta Vs State of Tamilnadu – Supreme Court has issue
direction the State Governments to ensure fulfillment of legislative intention
behind the child Labour (Prohibitoin and Regulation) Act.

6. Child Prostitution : Gaurav Jain Vs Union of India – Apex court issued

directions for rescue and rehabilitation of child prostitutes and children of the
prostitutes.

7. Dowery Death : Dowery death is perhaps one of the worst social disorders
prevailing in the society. Raja Lal Singh Vs State of Jharkhand – Supreme Court
laid down that there is a clear nexus between the death og Gayatri and the dowery

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 related harassment inflicted on her, therefore, even if Gayatri committed suicide,
Section 304-B of the IPC can still be attracted.

8. Harrasment of Woman : Vishakha Vs State of Rajasthan - Apex court held 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.

9. Immoral Trafficking : Immoral trafficking has now become a widespread social

disorder. State of Maharashtra Vs Mohd. Sajid Husain – The Court rejected
application for anitcipatory bail, in the acase where a minor girl was driven to
flesh trade by accused persons, comprised of plice officers, politicians and all were
absconding for long time.

10. Maintenance : Mohd. Ahmed Khan Vs Shah Bano – Apex court granted
maintenane to divorced Muslim woman and ignoring her personal law, keeping
in view essece of equality before law.
In Dimple Gupta Vs Rajiv Gupta, Apex court granted maintenance to illegitimate
child. The path breading judgment has given breath to the innocent children who
were victim of no fault of their own.

11. Outraging Modesty of Woman : Kanwar Pal S. Gill Vs State ( Admn. U.T.
Chandigarh - The accused who was DGP of the state of Punjab slapped on the
posterior of the prosecutrix, Mrs. Rupan Deol Bajaj, an IAS Officer, in the presence
of other guests. The CJM convicted him under Sections 354 and 509 of IPC.

12. Prevention of Atrocity : When members of the S.C. and S.T. Assert their rights
and demand statutory protection, vested interest try to cown them down.
Anticipatory bail is not maintainable to persons who commit such offences.

13. Rape : State of M.P. Vs Babulal – The court laid down the priciple that rape cases
need to be ealt with sernly and severely.

14. Bounded Labourers : Bandhua Mukti Morcha Vs Union of Inida

15. Equality – Man and Woman
16. Female Foeticide and Judicial Process

This goes to show that how the Supreme Court is keen in eliminating social disorder by
the heavy hands of judicial process.

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According to Benjamin Cordozo “the final cause of law is the welfare of society”.

Everything done by judge in the process of delivery of justie is called Judicial Process.
Judicial process is basically the path or the method of attaining “justice”. Justice is the
approximation of the ís'to óught'. Judicial power is invoved in the legal ordering of facts
and is under the obligation to approximate ís' with the óught'. This ordering is nothing
but the performance of administrative duties.

The objective nature of the judicial process in the owrds of Justice Cardozo is a follows :
The chief lawmakers in out country may be, and often are, the judges, because they are
the final seat of authority.

Judiciary is one pious system. The judicial process is very essential for the smooth
running of country as well as the progress of country. Apart from the regular arbitrator,
judges have to give dicision on different issues touching the national importance.

Law cannot be efficient and useful without taking recourse of judicial process in
maintaining social order. According to Justice P.N. Bhagwati and Justice V.R. Krishna
Iyer, law is an instrument of social change, social justice and social ordering.

Law is a means to an end and jsutice is the end. Therefore, undoubtedly we can say that
Judicial Process, which operates laws, is an instrument of social ordering.

What do I do when I decide a case ? Benjamin Cardozo posed this question in 1921.
Cardozo's analysis and philosphy examin the accepted definition of the judicial process;
what courts do and should do how judges reason and should reason in deciding
particular cases.

His thesis is that law or legal proposisions are not final or aboslute but ar in the state of
becoming. Every new case is an experiment; and if the accepted rule which seems
applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be
modified at once, for the attempt to do absolute justice in every single case would make
the development and maintenance of general rules impossible; but if a rule continues to
work injstice, it will eventually be reformulated.

Cardozo explained that sometimes the source of the law to be empodied in the judgment
is obvious, as when the Constitution or a statute applied. In this situations, the judge
simply obeys the consititutional or statutory rule. But when no constitutional or
statutory madate constrols, the judge must compare the case no constitutional or
statutory mandate controls, the judge must compare the case before him with the
precedents.

He observed, in countless litigation, the law is so clear that judges have no discretion.
They have the right to legislate within gaps, but often there are no gaps.

He observed, my analysis of the judicial process comes then to this, and little more :
logic, and history, and custom, and utility, and the accepted standards of right conduct,
are the forces wich singly or in combination shape the progress of the law.
The tools and techniques of Judicial creativity :

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This section focuses on the Federal Court system. Every state has its own sate court
system, which is separate from the federal system. The Federal Court system is not
separated by state, but rather by districts and circuits. The District court is the trial court
of the federal system.

The mind of creatvie judge is never free. His mind is always working for innovation in
law. That makes to pass the judgment going beyond the for-corner of tradional
decisions.

In Bandhua Mukti Morcha Vs Union of India ( AIR 1984 SC 802 ) it was held that when
the poor comes before the ourt, particularly for enforcement of their fundamental rights,
it is necessary to depart from the adversarial procedure and to evove a new procedure.
Judiciary has invented novel forms of action to provide relief to the poor,
underpriviledged, downtrodden sections af the society.

Epistolary jurisdiction allows access to justice to the poor and the weaker section of the
soceity. The court entertains a letter as writ petition ignoring all procedural norms and
technicalities. The epistolary jurisdiction is a new strategy adopted by the judiciary for
protection of the human rights of the vulnerable sections of the society.

The Supreme court while elaborating the scope of the right guaranteed under Article 21
observed in Francis Coralie Mullin Vs Adminstrator, Union Territory of Delhi ( AIR
1981 SC 746 ) that right to life cannot be restricted to mere animal existence. It means
something more that just physical survival.

Right to life includes the right to live with human dignity and all that goes along with it,
namely the bare necessities of life such as adequate Nutrition, clothing and shelter and
facilites for reading, writing and expressing oneself in diverse forms, freely moving
about and mixing and co-mingling with fellow human beings.

The Supreme Court ruled that the deune should be treated with more humanity and
dignity than the unde trial or a convict.

In Chameli Singh Vs State of U.P. ( AIR 1996 SC 1050 ) it was held that the right to life
as a human being is not ensured by meeting only the animal needs of a man. Right to
live guarantee in any civilized society implieds the right to food, water, decent
environment, education, medical care and shelter. Right to shelter includes adequate
living space safe and adecent structure clean and decent surrounding, sufficient light,
pure air and water, electricity, sanitation and other civic amenities like roads etc. So as to
have easy access to his dialy avocation. The right to selter, therefore, does not mean a
mere right to a roof over one's head but right to all infrastructure necessary to enable
them to live and delop as a human being.

Supreme court has virtually amended Article 211 of Constitution, by holding that before
finalizing the list of the Judges to be appointed in the Supreme Court, consent of the
Chief Justice of India along with some senior judges has to be obtained by Govt. Of India.
Nature and scope of Public Interest Litigation :

Public interest Litigation (PIL) means litigation filed in a court of law, for the protection
of “Public Interest” and not for personal gains. Any matter where the interest of the

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public at large is affected can be redressed by filing a Public Interest Litigation in a court
of law such as Pollution, Terrorism, Road safety, Constructional hazards, etc.

The landmar S.P. Gupta Vs President of India and Others case kicked off the PIL
revolution. Justice P.M. Bhagwati, the key architect of the PIL, delvered the judgment,
which relaxed the locus standi and opened the doors of the judiciary to public-spirited
citizends – both those seeking to advocate for the poor and oppressed and those seeking
to envorce the performance of public duties. Justice Bhagawati stated in his decision that
“any member of the public acting bonafide and having sufficient interest in instituting an
action for redress of a public wrong or public injury could move the court.”

In S.P. Gupta, the court overturned the traditional concept of locus standi by alloing
people with the direct or indirect interest in the outcome of a lawsuit to be represented in
court.

In another important case, Sunil Batra Vs Delhi Administration – Fundamental rights

of prisoners, the court relaxed the adversarial procedures to the point where it
recognized a prisioner's right to file a complaint with the court alleging that another
prisoner had been tortured.

Hundreds of lawsuits were filed on the variety of topics, including human rights
violations, women;s rights, children's rights, bonded labour, pollution, and even
constitutional and governance issued.

In every way, PIL signalled the beginning of India's era of judicial activism.

The judiciary appears to have taken up or assumed the functions of other government
organs in the process of performing such roles, which many refer to a “Judicial
Activism”. Court activism through the PIL route has evoved into a variety of forms, the
most prominent of which are lawmaking and executive.

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Notions of Judicial Review :

Generally Judicial Review means the revision of the decree or sentenace of an inferior
court by a superior court. Judicial review has a more tecnical signifance on public law,
particularly in countries having a written constitution which are founded on the concept
of limited governemt.

Judicial review in this case meanse that court of law have the power of testing the
validity of legislative as well as other governmental action with reference to the
provisions of the constitution.

The doctrine of judicial review has been originated and develped by the American
Supreme Court. The power of judicial review was firt acquired by the U.S. Supreme
Court in Malbury Vs Madison Case, 1803.

Judicial review is significant for the reasons mentioned as under :

• It averts the tyranny of executives

• It safeguards the fundamental rights of the citizens
• It is crucial for shielding the independence of the judiciary
• It is an absolute necessity for maintaining the supremacy of the constitution

1. Judicial Review Power is used by both the Supreme Court and High Courts :
Both the Supreme Court and High Courts exercise the power of Judicial Review.
But the final power to determine the constitutional validity of any law is in the
hands of the Supreme Court of India.

2. Judicial Review of both Central and State Laws : Judicial Review can be
conducted in respect of all Central and State Laws, the orders and ordinances of
the executives and constitutional amendments.

3. Limitations : Judicial Review cannot be conducted in respect of the laws

incorporated in the 9th Schedule of the Constitution.

4. It covers laws and not political issues : Judicial Review applies only to the
questions of law. It cannot be exercised in respect of political issues.

5. Judicial Review is not automatic : The Supreme Court does not use the power of
Judicial Review of its own. It can use it only when any law or rule is specifically
challenged before it or when during the course of hearing a case the validity of
any law is challenged before it.

6. Decisions in Judicial Review Cases : The Supreme Court can decide – i) The law
is constitutionally valid, ii) The law is constitutionally invalid and iii) only some
parts or a part of the law is invalid.

7. Judicial Review Decision gets impleented from the date of Judgment

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 8. Principle of Procedure establish by Law : Judicial Review in India is governed
by the principle – 'Procedure established by law'.

9. Clarification of provisions which a rejected law violates : While declaring a law

unconstitutional, the Supreme Court has to cite the provisions of the constitution
which it violates.

Judicial Review is considered to be the basic feature of our Consitution.

Case Laws :

A.K. Gopalan Vs State of Madras – In which the preventive Intention Act. 1950 was
challanged as invalid.

Champakan Dorairajan's Case – Supreme Court held that the order of the State
Government fixing proportionate scales, for different communities for admission to
medical colleges was unconstitutional.

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Concept of Dharma in Indian legal thought :

Law and morality are mutually helpful instruments for sensitising and promoting justice.

Law without morality is a treee without fruit and morality without law is a tree without
root. The law and morality are the social tools which make justice accessible to
individuals free from personal and vested prejudices as is evident from Hindu scriptures,
shastras, Hebrew and Christian Bibles and Islamic and Buddhistic scriptures.

Dharma is a principles of rightousness. The concept of law and order is called Dharma.

Vedic Perception :

Valmiki says, in this universe truth alone is God. Dharma lies in truth. Truth is root of
all virtues. There is nothing greater than truth.

Rama Vs Ravana and Pandavas Vs Kauravas which magnificently portray the moral
supremacy and victory of good over evil, or justice over injustice and of dharma over
adharma.

In the whole eighteen puranas the great sage Vyasa has said but two things – Doing good
to another is right, causing injury to another is wrong. Similarly, all the four Vedas insist
on equality and respect for human dignity as is evident from Yajurveda.

Lord Buddha who once again re-adopted the philosophy of middle path – the
madhyama marga as a way out to seek jutice for humanity.

Buddhistic morality in the administration of justice. Ashoka's mission for equal and
impartial justice is evidently clear from his directives and his governors in Kalinga Edict
7 which reads – All men are may children.

It was Buddha and Ashoka who really preached and practised equality amongst all
classes, men or women and prohibited cruelty to animals.

Buddhism rejected discrimination on grounds of caste, sex, religion or profession and

espoused the doctrine of equality as the sheet anchor of religious-cum-temporal
philosophy.

Post-Vedic Concept of Justice :

1. Code of Manu : Manu – Manusmriti is considered the authoritative work of law

of the Hindus. Manu set for each caste a standard of good conduct Varna dharma
which the judge was supposed to encorce and the king to execute faitfully and
impartially.
Manu says, a king who knows the sacred law, must inquire into the law of the
caste of districts, of guilds and of amilies and thus, settle the particular law of
each.

2. Kautilya : Chanakya known also as Kautilya who was contemporary of Plato and
Aristotle and practical stateman who engineered a coup détat that overthrew the

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 Magadh Em,pire in 321 B.C. And established Mauryan dynasty which ruled India
for more than three centuries. In his Arthashastra the women and shudras are
given equal treatment along with men. Kautilya also emphasised on the need of
promotion dharma with king as its ultimate defender and preserver.

3. Doctrine of Matsyanyaya : Literalyy it means the fish rule that is the sytem of life
in the aquatic regions where bigger fish devour the small. Matsyanyaya is found
in Santiparva of Mahabharata on the subject of Rajdharma or duties of the king of
government.
The law alone is their protector. The law keeps awake whilst all the people are
fast alseep; the wise, therefore, look upon law as Dharma or Right. When rightly
administered, the law makes all men happy, but when administered wrongly, that
is, witout due consideration as to the requirements of justice, it ruins the King – all
order would come to an end and there would be nothing but chaos and corruption
if laws are not properly enforced.

4. Muslim Era : Muslim rule in India was not founded on the baisc principles of
human diginity, equality and jsutice and was essentially autocratic, theocratic and
irresponsible devoid of the rule of law, morality, justice, tolerance and social
harmony. Such was the essence of justice called Kazi Justice – wholly arbitrary
incosistent with priciples of minimum morality and elementary justice.

5. British Period : They were more governed by economic-drain theory than

acceleration of political change and social justice. During the long colonial
domination Indians had come to realise that there can be no justice without liberty
and liberty without justice.

Before the advent of the British rule in India the legal system mainly emboided
customary, moral cum religious rules as obtained in the Dharmashtras. Manusmriti
declares, “the king should not leave an offender unpunished; whatever may be his
relationship with him. Thus the king in ancient India was the symbol of Dharma – rule
of law and was described as protector of the people, defender of faith and moral values.

In ancient India the king was bound by Rajyadharma which enshrined duties and
obligations of the king for the promtion of welfare of his subjects.

Dharma as the foundation of legal ordering in Indian thought :

Manu is firm believer in non-dualistic creed of philosophy. It is this ideology of Manu,
which is behind all the concepts, social and legal. The concept of Dharma in Manu is
directed towards the realizatin of secular and spiritual ends which certainly incudes the
realiztion of idea of justice in society.

1. Justice as Virtue : The most important of virtues in Manu which an administrator

of justice must possess is humulity or modesty. The king who is foundation of
legal justice must possess moral virtue without which justice cannot be
administered in the ture sense of the term.
2. Justice as Equality : The society is divided into two groups, Varna and avarna.
Varnas are four viz. Brahamans, Kshatriya, Vaishya and Shudra. Thus, there are
five social groups. If this division is accepted as scientic and necessary them it
implies that this classification is based on a rational distinction and on intelligible

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 differentia. An unbiased analysis of the law code of Manu reveals that all human
beings are not born equal. This distinctive feature of Indian philosophy coannot
be ignored; it must rather be accepted by a votary of ture democracy.

3. Social Justice : According to the Hindu sociology the emphasiswas on overall

welfare of the society. In Hindu jurisprudence, so much emphasis was laid on the
duites of a king that he was to be held responsible even for supernatural
calamities over which he had no control but were supposed to be cause due to the
failure of the king in his duties of general admnstration.

The administration of justice is the prime responsibility of the king and there is an
agreement on this point among all the ancient Hindu jurists. In Hindu jurisprudence the
word Dharma is frequently used for justice, though various meanings have been
attached to the word dharma. The Dharmashastras contain the rules, the violation of
whichcause injustice. Injustice is adharma, the opposite of dharma.

Analysis dharma necesarily explain the idea of justice, because hen dharma is used in the
sense of body of rules for governing mutual relation of people, means for the
adminstration of justice. In the code of Manu itself the distinction is made between
Dharma as a body of rules and justice as an end of Dharma.

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