Judicial Process

Madhavi Satish Malge

Society for Legal Education, Training & Research, Satara

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Editorial Board Chief Editor Dr. Sujata Sanjay Pawar Principal Ismailsaheb Mulla Law College, Satara Dr Gigimon V S Associate Professor & Head of the Department Chair Coordinator Prof. NR Madhava Menon Chair on Legal Education Mar Gregorios College of Law, Trivandrum Dr. Bharati Patil Professor Dept. of Political Science, Shivaji University, Kolhapur Dr. Deepa P. Patil Assistant Professor Ismailsaheb Mulla Law College, Satara Yogesh Prasad Kolekar Assistant Professor Ismailsaheb Mulla Law College, Satara Nikhil Dhananjay Barge Modern Law College, Pune Tejas Ramesh Teli ILS law college, Pune Kiran Sanjay Shinde Ismailsaheb Mulla Law College, Satara Soha Sameer Shah Ismailsaheb Mulla Law College, Satara

Forward The Indian Constitution is called as a living document, as its scope is increasing according to needs of the society. The judicial process of constitutional interpretation consists the process of interpreting the law in such a way, that it will meet social change and social needs with the help of tool, i.e. Law. Law is an instrument of social change. Indian Constitution is a supreme law of India and it is the root of Indian legal system so, understanding about its new trends is essential for a better understanding of the Indian legal system. Even a common man should aware about his fundamental rights and States accountabilities. Law students should know contemporary challenges to ideals of Indian Constitution. For this purpose, students should be specially trained in understanding the duties of three organs of the government viz. Legislature, Executive and Judiciary. Judiciary is an important organ of the government, endowed with the power of judicial review. Judiciary can scrutinize constitutionality of laws and legality of the acts of executives. Unconstitutionality of law and illegality of executive act is scrutinized by judiciary taking into consideration the ideals and values of Indian Constitution. In India ‘Separation of Power’ principle is followed, with the purpose of maintaining check and balance amongst the organs of the government. Because we know that ‘power corrupts and absolute power corrupts absolutely’. A lawyer, a student or a professional, is expected to have the ability to analyze and evaluate the judicial process with a broader legal perspective. I am happy that the Judicial Process is a part of LL.M curriculum. It will make students aware regarding the nature of judicial process as a tool for social order. This book highlights the role of the court as a policy maker, and as a tool for social change.

This book highlights the noble role of judges in protecting fundamental rights of people through judicial process. The main purpose of judicial process or system is to administer justice, this book has systematically presented the concept of justice and its various theoretical principles. It familiarizes students with different dimensions of justice. It also deals with the concepts of judicial review, judicial activism, judicial discretion, Justice in Dharma Shastra etc. This book studies different constitutional adjudications, which are the base of Indian Legal System. Author is well versed with Indian Constitution and Jurisprudence. This book is a genuine attempt to cover all aspects related to ‘Judicial Process’ in simple language, with the help of landmark constitutional cases. This book is published by Society of Legal Education, Research and Training and is peer reviewed by the editorial board consisting of legal academicians, forensic experts, cyber experts, Constitutional Law, legal history experts and other professionals. The book is highly informative and equally useful to Graduation and Post-Graduation Law students. Kalidas L Wadane Former Judge of Bombay High Court and Presiding Officer, University of College Tribunal, Savitribai Phule Pune University, Shivaji University, Solapur University

Preface The book ‘Judicial Process’ is an attempt of the author to draw attention of readers towards the accountability three organs of the government viz. Legislature, Executive and Judiciary and the noble work of administration of justice by Indian judiciary. While administering justice, the court does not take into consideration, who is before it, rather, every litigant is entitled to the same consideration. Judiciary has been consistently carrying out its responsibility of maintaining of rule of law without fear and influence from any other organ of the government. Supreme Court and High Court with the help of its Subordinate Courts have substantially shouldered the responsibility of safeguarding the fundamental rights of citizens of the country. Human touch of judiciary is evident in various landmark cases like Maneka Gandhi V. Union of India, Hussainara Khatoon V. Home Secretary Bihar, Bihar Bliding Case, M.C. Mehata’s Cases. There is a long list of landmark judgments of Supreme Court and High Courts that have made us proud of Indian judiciary. Indian judiciary is the guardian of Indian Constitution and its cherished values. Judiciary has the power to scrutinize the law passed by Legislature and legality of actions of Executives whenever fundamental rights of citizens are violated. Whenever, there is gap on the part of legislature, judiciary has provided guidelines to protect the rights of weaker sections of the society. Vishakha V. State of Rajasthan is the best example of Judicial Activism. ‘Judicial Process’ forms a substantial part of LL.M Syllabus. This book has been written, considering the dearth of study material available to law students on Judicial Process. This book deals with the concept, Judicial Process, Doctrine of Separation of Power, Independence of Judiciary, Doctrine of Precedent, Basic Structure Doctrine, Judicial Review, Judicial Activism, Judicial Accountability etc. This book is an honest effort to provide updated and quality study material to law students. Even a common man can refer this book to understand ideals of Indian Constitution and judicial accountability.

For this book, the author would like show sincere gratitude towards, Dr. Sujata S. Pawar, Principal, Ismailsaheb Mulla Law College, Satara, Dr. Bharati Patil, Professor & Head of the Department, Political Science, Shivaji University, Kolhapur, Dr. Vivek Dhupdale, Head of the Department, Law, Shivaji University, Kolhapur, Former Judge of Bombay High Court, Hon’ble Justice Kalidas Wadne and Dr. Deepa Patil, Ismailsaheb Mulla Law College, Satara. I am really thankful to all these legal luminaries and academicians for their valuable guidance and cooperation. I am also indebted for the cooperation of Dr. Satish Babar for inspiring me during the studies and finally last and not the least my beloved husband, Shri. Satish H. Malge for his financial support and daughters Sayali and Swara for their patience during completion of this book. Madhavi Satish Malge

Index Chapter I Nature of Judicial Process Chapter II Doctrine of Precedent-Ratio decidendi and Obiter Dictum Chapter III Special Dimensions of Judicial Process in Constitutional Adjudications Chapter IV Logic and Growth in Law Chapter V Judicial Process in India Chapter VI Nature of Judicial Process Chapter VII The Concepts of Justice Chapter VIII Relation between Law and Justice Annexure

Chapter I Nature of Judicial Process “We want Supreme Court which do justice under the constitution. Not over it. In our courts we want a government of laws and not of men.” Franklin Roosevelt

There are three organs of government viz. legislature, administrative and executive. All three organs are accountable for maintaining democracy in India. The word democracy has derived from the Greek word, Demokratia. This word consists two words, viz. ‘Demos’ and ‘kratia’. The word ‘Demos’ means the people and ‘kratia’ means ‘power’. So, the ‘Democratia’ means the ‘power of peoples’. Government is the combination from all three organs. All these three organs have their own exclusive duties and powers. ‘Legislature’ makes law, ‘Executives’executes those laws and ‘judiciary’ interprets the law. Interpretation of the law is explaining law or clarifying it. “Each organ of the State viz. Judiciary, legislature and executive must function in conformity of Indian Constitution. The relationship of organs with one another has been clearly demarcated in purpose, intent and areas of activities, leaving hardly any scope for doubt or confusion. If there is any doubt, there is always the spirit of the constitution, which clearly delineates the harmonious relations among the various organs”. 1

1Pran

Chopra, The Supreme Court versus the Constitution, A Challenge to Ferderalism, Sage Publication, p.10.

India is indebted with the contribution of Supreme Court and the High Judges. Supreme Court of India came into existence on 26 th January, 1950, after India becoming a Sovereign, Socialist, Republic, the Supreme Court came into being. The inaugural function was held in the presence of Hon’ble Chief Justice Harilal J. Kania, Justice Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukharjea and S.R.Das. It was attended by Hon’ble Chief Justices of High Courts Allahabad, Bombay, Madras, Orissa, Assam, Nagpur, Panjab, Saurashtra, Patiala and some other states. “The original constitution of 1950 had made provision for one judge of Supreme Court and 7 Puisne Judges. It was left to the Parliament to increase the number of judges”. Initially, all the Supreme Court Judges used to sit together, however, “as the number of cases increased, Parliament increased the number of judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of judges increased, they started sitting in Smaller Benches of two and three-coming together in larger Bench of 5 and more only when required to do so to settle a difference of opinion or the controversies. Now the Supreme Court of India comprises the Chief Justice and 30 other judges appointed by President of India”. 2 “Law is the vehicle by which society makes some of its most important basic decisions and courts are the institutions whose major task is to defend and preserve the order of things.” This vehicle driven by both Bar and Bench. Having focused mind, honesty towards the nation, passion and commitment towards the administration of justice. Indian judiciary is known by various popular names like Justice Vaidyanathapuram Rama Krishna Iyer (15th November-4th December, 2014), who is called as a pioneer of judicial activism. Justice Krishna Iyer was a great author and human right activist. He has also worked for social justice and the environment. Justice Krishna Iyer was conferred the Padma Vibhushan in the 1999. 2Supreme

Court of India, Available at main.sci.gov.in/history

In the landmark judgment Maneka Gandhi V. Union of India Case.The name of Justice Krishna Iyer is taken along with Justice Prafullchandra Natwarlal Bhagwati (21 st December 1921-15th June 2017), then 17 Chief Justice of India, served from 1985-86. Justice P.N. Bhagwati introduced the concept of Public Interest Litigation. In Maneka Gandhi V. Union of India case, Justice Krishna Iyer and Justice Bhagwati decided the case in favour of Mrs. Maneka Gandhi. We cannot forget the name of Justice Adarsh Sein Anand (1 st Novemeber 1936-1st December 2017) has served as the 29th Chief Justice of India, known for his various landmark judgments in Nilabati Behera’s case, 3D. K. Basu’s Case 4etc. These cases deal with Compensatory Jurisprudence and the guidelines to be followed by Central and State Investigators and Security Agencies in all cases of arrest and detention. Justice Dipak Misra is again a jurist, known for his great contribution towards the Indian Judiciary. He has served as the 45 th Chief Justice of India. He is known for his various popular judgments like Own Motion V. State5, in which it was decided that Delhi police to upload the First Information Report on their Web site within 24 hours, so that the accused can file the appropriate application before the court for Redressal of their grievances. 6 Mr. Soli J Sorabjee, Attorney-General of Indiaserved from 19891990 and again from 1998-2004, known to be the champion of the cause of freedom of speech and expression and protection of human rights. For his noble work, he has been conferred the Padma Vibhushan in 2002. 7 3(193) 4AIR

2 SCC 746

1997 SC 610

52008

(DRJ) 144

6Zee

News, Delhi High Court bids farewell to CJ Dipak Misra, Available at zeenews. India.com 7BW

Legal World, Legal Luminaries Come Together to pay their tribute to Soli Sorabjee, Available on bwlegalworld.businessworld.in

Mr. Fali Nariman Senior Advocates and President Emeritus, Bar Association of India, who is an internationally recognised jurist on International Arbitration, who has been honoured with the 19th Lal Bahadur Shstri National Award for excellence in Public Administration 2018 who is known as most distinguished constitutional lawyer, awarded with the Padma Bhushan in 1991, Padma Vibhusan in 2007 and Gruber Prize for justice in 2002. He argued various leading cases like Bhopal Gas Disaster Case, appeared in many landmark cases like Golak Nath, S.P.Gupta, T.M.A. Foundation Case. Mr. Mr. Fali Nariman was appointed in an Advisory Board of the United Nations Conference on Trade and Development in 1999 and has served as a Chairman of the Executive Committee of the International Commission of jurists from 1995 to 1997.8 India cannot forget achievement of Kapil Sibal is a well-known Indian lawyer and the politician. He has served as Additional Solicitor General of India since 1989-1990. He is the member of the Board of International AIDS Vaccine Initiative, The Bill &Melinda Gates Foundation’s India AIDS Initiative, Working Group on Arbitrary Detention set up by the Human Right Commission, Geneva. We are also obliged with the contribution of Mr. Harish Salve, an Indian Senior Advocate, practices at the Supreme Court of India, who has served as the Solicitor General of India since 1999-2002. Mr. Harish Salve has fought the case of Kulbhushan Jadhav at the International Court of Justice and was appointed as a Queen’s Counsel for the Court of England and Wales. 9 Judicial process as an instrument of social order The term judicial process comprises two words ‘judicial and process’.The term judicial has been derived from the Latin word ‘iudiciarius’, which means belonging to a court of justice. 10 8Biography:

Fali Nariman

9BlackStone

Chambers, Available on blackstonechamber.com

10Available

on www. etymoline.com

The word judicial means relating to ‘judiciary’ and process is method of doing something, so the term judicial process, is a method of administration of justice. The term ‘social’ is derived from the Latin word ‘socii’ (allies) and orderly is arranging something in proper order. So, the term Social Order is Orderly Society. The society is orderly where all citizens follow their duties diligently, law enforcement agencies functions efficiently and without corruption, no organ of the government interferes in functioning of other government illegally, judiciary works without influences and fear from legislature or executives, equality in men, women and Transgender is properly maintained, girl child gets equal right to survival as well welfare by way education and employment, State does not violate the rights of poor, marginalised people, the rights of arrested person, undertrial prisoners are properly protected. There is a huge list. However, the picture in society is exactly opposite. Society is not orderly. To keep the society in orderly manner Indian judiciary works. Their dedication towards administering justice is the only reason of faith of people in the judiciary. People know that, when no one listens to them, the judiciary is there who will certainly look after them and protect their rights. The law changes the society and society changes the law. Law of land compels the society to be changed according to law. When any dispute involving the question of law comes before the judiciary, the judiciary on the basis of the rule of law forces the society to change either existing custom or the law. Even the society changes the law, which means that law is made by society, according to the requirement of its democratic institution. According to Blackstone, “Law is a rule of conduct, prescribed by the supreme power in the State, commanding which is right and prohibiting what is wrong. Jurisprudentially, law consists of rules prescribed by society for the governance of human conduct.”

Austin says, “A law in its literal meaning may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” In this way positive law is a command of a higher authority. Law is nothing but the will of the sovereign, backed by sanction i.e. Punishment. Positive law is not same as the divine law or the human inspired moral precepts. According to Chief Marshall, the judge of the Supreme Court, the constitution is the fundamental and paramount law of the nation and it is the court to say, what is law. He further says that when there is a conflict in the constitution and law, it is the duty of the court to enforce the constitution and ignore the law. American Judge Benjamin Cardozo has said that, the final cause of law is the welfare of society. Law is the tool and justice is an end. Social justice can be ensured by law, however law to be legitimate, it should satisfy the mandate of the constitution. Indian judiciary has given has always considered the needs of society, while interpreting the law. Judiciary has given fresh dimension to law by introducing various reformatory concepts like Public Interest Litigation, Alternative Dispute Resolution, and Writs etc.11 US. Supreme Court Justice Lewis Powell has said, “Equal justice under law….it perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same in substance and availability, without regard to economic status” Sometimes judiciary is criticized for not having the transparency. One of the issues which needs to be addressed in the judiciary is corruption. Due to delays in justice delivery the people are said to be adopting unethical practices. The process of administration of justice should be made more transparent. The judicial process is also criticized for being rigid. The process of getting justice should be so simple that, even a common man should not have any fear while approaching the court. 11Malik

2-3

& Raval, Law and Social Transformation, Allahabad Law Agency, 4 th Ed, 2014, p.

The situation of marginalised people about the administration of justice in India has been rightly quoted by Hon’ble Justice Krishna Iyer. He has said, “Our legal system, including the police, is anti-Dalit and antipoor. The death penalty laws’ wrathful majesty, in bloodshot equality, deals the fatal blow on the poor not the reach, the pariah, not the brahmin, the black not the white, the underdog not the top dog, the dissenter, not the conformist… the law barks at all but bites only the poor, the powerless, the illiterate, the ignorant.” Indian Judiciary faces various challenges, in spite of that it has proved itself the guardian of fundamental rights in a number of landmark cases. The judiciary plays an important role in the administration of justice. The judiciary plays dwell role. At one place it protects the Indian constitution and on the other side, it acts as an instrument of social change. Indian judiciary provides justice to the victim and deals with matters related to social issues and related crimes. The Supreme Court is the highest court in India. It has the original, appellate and advisory jurisdiction. The judiciary also protects citizens from arbitral decisions of administrators and executives. The law is complex phenomena. Sometimes law is silent or inadequate on certain issues, in such cases also, by providing appropriate guidelines, judiciary plays an important role.12 Law is a rule of conduct developed by the government or society over a certain territory. According to John Austin,“Law is the aggregate set of rules set by man as politically superior, or sovereign to men, as political subjects. ”Hans Kelson has contributed his ‘Pure Theory of Law’, He says “law is a normative science”. According to him, “the law does not seek to describe what must occur, but rather defines certain rules to abide by it”

12Vishakha

V. State of Rajastahn, AIR 1997 SC 3011