DR RAJENDRA PRASAD LAW INSTITUTE

KUMAUN UNIVERSITY NAINITAL

SESSION 2020-2021
ASSIGNMENT JUDICIARY IN INDIA AND
JUDICIAL PROCESS A STUDY
SUBMITTED TO SUBMITTED BY
DR DEEPAKSHI MOHAMMAD SAIM
JOSHI HUSSAIN LLM II
PROFESSOR SEMESTER ROLL NO
DR RPLI 19012579008
JUDICIAL PROCESS INTRODUCTION
The judicial process is a set of interrelated procedures and
roles for deciding disputes by an authoritative person or
persons whose decisions are regularly obeyed.
The disputes are to be decided according to a previously
agreed upon set of procedures and in conformity with
prescribed rules.
As an incident, or consequence, of their dispute-deciding
function, those who decide make authoritative statements
of how the rules are to be applied
The statements have a prospective generalized impact on
the behavior of many besides the immediate parties to the
dispute.
The judicial process is both a means of resolving disputes
between identifiable and specified persons and a process
for making public policies.
DEVELOPMENT OF THE CONCEPT
• For centuries hundreds of writers in thousands of
articles and books have tried to determine what is the
essence of the judicial or adjudicatory process, what
distinguishes it from the legislative and administrative
processes.
• During the last several centuries this exercise in
political taxonomy has taken on special urgency and
normative concerns.
• Under the doctrine of separation of powers it became
improper for legislatures to engage in the judicial
process—issuance of bills of attainder, for
example—or for judges to assume functions that are
thought to be within the scope of the legislative
• The classic doctrine of separation of powers divided
the world of political activity into the three familiar
divisions based both on what was thought to be the
behavior of political actors and on what were thought
to be the requirements for the maintenance of liberty.
• The judiciary was assigned the function of applying
the laws that the constitution makers and the
legislatures had created and that the administrators
enforced.
• Today political analysts have abandoned these
categories in favor of a continuum. At one pole is the
legislative process for making law (formulating norms)
and at the other the administrative and judicial
processes for administration or applying the law
(individualizing the norm).
• As to the distinction between the administrative and
judicial, some writers—such as Hans Kelsen and
Otto Kirchheimer—insist that these processes cannot
be distinguished functionally and that it is more or
less a historical accident whether some disputes are
assigned to what are known as courts whereas
others are assigned to what are known as
administrative agencies.
• Others, such as Roscoe Pound, insist that the
difference grows out of the fact that administrators
are not obliged to make their decisions by following
prescribed procedures or in accord with legal
doctrines.
The Nature of the Judicial Process
• The Nature of the Judicial Process is a legal classic
written by Associate Justice of the United States
Supreme Court, and New York Court of Appeals Chief
Justice Benjamin N. Cardozo in 1921.
• The central question of The Nature of the Judicial
Process is how judges should decide cases.
• Cardozo's answer is that judges should do what they
have always done in the Anglo-American legal
tradition, namely, follow and apply the law in easy
cases, and make new law in hard cases by balancing
competing considerations, including the paramount
value of social welfare.
FOUR LEADING METHODS OF LEGAL ANALYSIS :
• Method of logic (or “analogy,” or “philosophy”), which
seeks to extend legal principles in ways that preserve
logical consistency
• Method of history (or “evolution”), which adverts to the
historical origins of the legal rule or concept
• Method of custom (or “tradition”), which views social
customs as helpful guides to community values and settled
expectations
• Method of sociology, which looks to considerations of
reason, justice, utility, and social welfare
• In difficult cases where a legal rule is outmoded or the law
contains “gaps” that must be filled, judges should frankly
play the role of legislators and let “the welfare of society fix
the path.”
• Judges may make new law only “interstitially,” that is,
when the law contains gaps or a legal rule is clearly
obsolete.
• When judges invoke norms such as “reason,” “justice,”
or “social advantage” when employing the method of
sociology, they should look to community standards
rather than to their own personal values
• Judges in their exercise of judicial review should
never strike down a law unless it is so plainly arbitrary
and oppressive that right-minded men and women
could not reasonably regard it otherwise.
• The final cause of law is the welfare of society.
• A constitution states or ought to state not rules for the
passing hour, but principles for an expanding future.
Judicial Process under the Indian Constitution
Judicial process is basically the path or the method of attaining
justice.Justice is the approximation of the "is" to "ought". Judicial
power is involved in the legal ordering of facts and is under the
obligation to approximate ''is'' with the "ought‘".This ordering is
nothing but the performance of administrative duties. Supremacy of
law implies that it is equally applied and nobody is above the law
Indian Constitution adopted this principle in the form of Article 14
and the Preamble which provide equality of status and opportunity.
Thus, Constitution ensues to establish parity of power which requires
that every person must be on the same plane. The wording of Article
14 made it an Umbrella‘ Article under which all other rights, both
constitutional and statutory, find protection. This is so because all
laws treat every individual with equality and the protection of laws is
extended to all without any discrimination, then all others rights are
automatically enforced
Goal of Judicial Process
Ultimate goal of Judicial Process , undoubtedly, is to
ensure social order and to make the society safer for
its people. Law cannot be effective and useful without
taking recourse of judicial process in maintaining
social order. Justice P. N. Bhagwati and Justice V. R.
Krishna Iyer, both were of the opinion that law is an
instrument of social change, social justice and social
ordering. Justice Rangnath Mishra, former C.J.I., has
rightly observed that ' Law is a means to an end and
justice is the end.' Therefore, undoubtedly we can say
that Judicial Process, which operate laws, is an
instrument of social ordering.
Judicial process as an instrument of social ordering
Article 32 of the Constitution empowers the Supreme Court
to issue directions or orders or writs for enforcement of any
right conferredunder 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 as an important instrument of judicial process
Supreme Court to take suitable action for the enforcement of social
order. Deprivation of the fundamental rights often results in to socia
disorder. The Supreme Court is a sentinel of all fundamental rights,
and we are satisfied to see that the Apex Court has taken recourse
of judicial process effectively in every area of social disorder to set i
right and granted relief for each type of evil prevailing in the society.
The Supreme Court has played positive role in implementing social
Judicial process played a vital role in
eliminating social dis-order:-
BIGAMY "Lily Thomas v. Union of India", AIR 2000 S C 1650,
Bonded Labourers
Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a
good example of social ordering by way of judicial process
Caste system and Judicial Process
In "Lata Singh v. State of U. P.", AIR 2006 SC 2522, the Apex Court
has given protection to the major boy and girl who have solemnized
inter-caste or inter-religious marriage.
Child Labour
In "M.C. Mehta v. State of T.N.", AIR 1997 S C 699, the Supreme
Court has issued direction the State Governments to ensure
fulfillment of legislative intention behind the Child Labour (Prohibition
and Regulation) Act (61 of 1986).
Equality: Man and Woman
In AIR India v. Nargesh Meerza, AIR 1981 SC 1829, the Apex Court
declared that – ―the provision of AIR India Service Regulation 46 (i)
(c)‖ or on first pregnancy whichever occurs earlier‖ is UN constitutional, an
is violative of Article 14 of the constitution.
In "Centre for
Enquiry into Health and Allied Themes (CEHAT) v. Union of India",
AIR 2001 S C 2007, the Apex Court has held that despite the PNDT
Act being enacted by the Parliament five years back, neither the
State Governments nor the Central Government has taken
appropriate actions for its implementation. Hence, directions are
issued by the Court for the proper implementation of the PNDT Act,
for eliminating this Social evil
Harassment of Woman
The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011)
created law of the land holding that the right to be free from sexual
harassment is fundamental right guaranteed under Articles 14, 15
and 21 of the Constitution
Justice V. R. Krishna Iyer, has rightly observed that ― Law is not a
brooding omnipotence in the sky but a pragmatic instrument of
social
order. Judicial Process is a means of enforcing law. In the light of the
above discussion certainly it it would be perfectly right to say that
Judicial Process is an instrument of social ordering. The prominent
work of Indian Courts today may be seen as prosecuting poor
people for petty crime. The main Role of courts continues to be, as
in colonial times to (i) enforce law against (mostly poor) citizens; (ii)
protect property rights(state and private) and (iii) uphold and protect
the authority of state. On the other hand, in the immortal words of
Supreme Court in S.P.Gupta Case THE CONSTITUTION has made
a revolutionary change in the role of Indian Courts –from being an
arm of the RAJ to being an instrument of SWARAJ, an ―arm of social
revolution‖.
The present Indian judicial system is by all accounts unusual.
The proceedings of the Courts are extra ordinary dilatory and
comparatively expensive. A single issue is often fragmented into a
multitude of court actions. Execution of the judgment is haphazard,
the lawyer seem both incompetent and unethical; false evidence is
often commonplace; and the probity of judges is habitually suspect.
Above all, the courts often fail to bring the settlement of disputes that
give rise to litigation. The basic reason for this state of affairs is that
present mode of access to justice through courts operating in India is
based on Adversarial legalism
Therefore, we can say that effective justice dispensation through the
Courts requires three elements: access to courts, effective decision
making by judges, and the proper implementation of those decisions
because the primary responsibility of judiciary is policy control and
dispute resolution is only incidental to it.
 Conclusion and Suggestions
Judicial process is on the verge of total collapse. The
adversarial system which Indian legal system follows has
failed to answer the test of Article 14 read with Article 256
as it is required party must do everything from paying court
fees to execute the decree which actually is the task of the
state.
The adversarial system lacks dynamism because it has no
lofty ideal to inspire. It has not been entrusted with a
positive duty to discover the truth in the inquisitorial
system. When the investigation are perfunctory and
ineffective. Judges seldom take any initiative to remedy
the situation. During the trial, the judges do not bother if
relevant evidence is not produced and passive role as
they don‘t have any duty to search for the truth.
 REFORMS IN JUDICIAL PROCESS
The judiciary is sinking. The destruction is
from within, the court is what the court does.
Court fees to be abolished:
To charge fees for justice is like sealing the promise of law and
flouting the constitutional duty of state to provide justice to the
people at their door step, merely laying down the foundations of
judicial shops and washing their hands of from the process of justice
delivery is not warranted on the part of the state.
Advocate fees to be abolished:
As it is clearly provided under the provisions of Advocates Act that
advocates are the officers of the Court, then why the clients are
bound to pay hefty fees to lawyers for contesting thier cases. There
should be provision for public advocates which are available to
everyone and should be paid by state.
Selection of Judges
CJI committed blunder when in one of the most controversial case
he held that consultation by CJI means his consent. Here, by this
observation the power of President is reduced to zero and whole
spectrum of power given under the constitution is disturbed. The
judges should be appointed by President only with the consultation
of CJI and not by his consent.
Moreover, the provision of advocates becoming judges after certain
required years of practise should be abolished. Judges and
advocates are different profession and they should not be
intermingled. There should not be any mutual appreciation of
society.
Adversarial system to be abolished:
The present adversarial system should be abolished and replaced
with inquisitorial system of justice. Judicial process is essentially
deductive reasoning and it is to tell authoritatively what law is. The
judge should take judicial notice of all the law.
The Limitation Act should be struck down:
The Limitation Act should be stuck down as unconstitutional since it
is violative of Article 14. Under Article 14 there is no distinction
between state action and private action
Judges should not have any immunity:
If judges committed any negligence or there is dereliction of duty on
their part, then such judges should be punished under Section 166 of
the IPC because they are the public officers and hence liable for
punishment for negligence of duty.
Delays should be avoided:
The delays in our legal system are well known. There 30 million
cases pending in various Courts. The average time span for
dispute to be resolved through the court system is about 20
years
Supreme Court to have Benches throughout the country
No presumption should be raised in favour of anyone:
The presumption is always in the favour of constitutionality of
statute, and it is a gross misapplication of a justice as it tends to
presume the preponderance of power in favour of one party and tilt
the balance unjustly. This totally upset the balance of parity of
power, which is ensured through the guarantee of ―equal protection
of laws‖ under Article 14 as well as Article 13 (2) and (3) of the
Constitution, respectively. The burden of justifying the constitutional
validity of the law as well as the fact that the state action was in
accordance with such law should be on the state, and not on the
person who challenges its constitutional validity. Asking the injured
party to prove the wrong or injury suffered destroyed the guarantee
of equal protection of laws. Such an opinion of the part of court is
extremely low on the ethical count of the power spectrum
Judges should play active and not passive role while
deciding