INTRODUCTION

In the previous unit you have read about the concept of the legal reasoning and the growth of law.
We have also discussed the importance of judicial precedents so as to understand the whole concept
of judicial process.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.

OBJECTIVES
 Understand the creativity in law through legal reasoning

 Discuss the judicial process as Legal Reasoning and development of law.

 Discuss the Importance of Precedents in statutory and codified systems

 Describe the tools and techniques of judicial precedents in India.

Judicial process and Development of Law

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. 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

Creativity in Law through Legal Reasoning

The ideal notion of the rule of law can be traced in ancient Indian legal system which laid greater
emphasis on the duty, by making the king as the head of administration. Dharma in ancient India did
not denote any kind of religion or right but only the performance of the duties . Everyone had to
perform his assigned Dharmas (Duties) .The duties assigned to the king was known as Rajadharma
which was a combination of several Dharmas , hence it was considered as very pious and supreme
Dharma. Although the king was the fountain head of the administration of justice, his powers were
limited by the norms of Rajadharma . He neither could impose arbitrary taxes nor could favour his
relatives, and if he deviated from the performance of the norms of Rajadharma , the punishment
prescribed for him was thousands times more than an ordinary individual . There was no distinction
between weaker and stronger and the weaker was able to prevail over stronger with the assistance
of the king if his rights or liberty was encroached. This duty approach setup of Rajadharma was
distorted with the coming of the Moughals and subsequently after the coming of Britishers.

JUDICIAL PROCESS IN ANCIENT INDIA

The Policy of self-restraint was the governing principle in ancient India, which was based on norms of
righteous conduct named Dharma. There was no sanction and People used to follow Dharma on
their own, because of its intrinsic merit. however this ideal stateless society didn‘t last for a long
time as some person out of , selfish worldly desires, began to flout dharma and created a situation of
'Matsyanyaya' (big fish devouring small fish) . This situation forced the law abiding people to search
for a remedy, which resulted in creation of the institution of kingship and formulation of
"Rajadharma" (law governing kings), which was the synthesis of all Dharmas. The object of
Rajadharma was to assist and support the achievement by individuals of the threefold ideals
(Trivarga) ,and to ensure that they secure wealth (Artha) and fulfil their desires (Kama) in conformity
with Dharma and do not transgress Dharma . Dharma had a very wide connotation involving
social ,moral, legal religious aspect. Since Dharma was entirely dependent upon the effective
implementation of Rajadharma it was considered as supreme dharma.

JUDICIAL PROCESS IN MODERN INDIA

(i) ACCESS TO JUSTICE

The term access to justice is variable according to the variation of the definition of justice , earlier
access to justicemeant merely the aggrieved individuals formal right to litigate or defend a claim but
now it means an equal right of having recourse to an affordable, quick, satisfactory settlement of
disputes from a credible forum.[21] Modern access to justice can categorized into formal and
informal access to justice. The formal access to justice is basically adjudication of disputes by the
courts which follow the rules of Civil and Criminal Procedure. Whereas informal access to justice
includes alternative modes of dispute resolution such as Arbitration, Conciliation, Mediation, Lok
adalats and Nyaya-Panchayats , which are merely of supplementary nature to the court system .
They are not bound by the provisions of C.P.C and I.P.C but has to follow the principles of natural
law. Informal and formal modes of justice both are against the principles of parity of law devised by
Article 14 of the constitution, because in informal modes of access to justice one has to often
compromise with his legal rights in interest of time, cost of money etc. which is very much against
the guarantee of Article 14 and duty imposed on state therein .

(ii) HURDELS IN ACCESS TO JUSTICE:

Formal modes of access to justice also has many drawbacks which are discussed below-

1. Law of limitation: The aggrieved person has to satisfy first of all that his suit is not barred by
the law of limitation act 1963 and if barred by law of limitation the judge may or may not
entertain his suit . Thus it is absolutely denial of Article 14 which imposes unqualified duty
on state to provide equal protection of laws
 2. 2.Court fees: With the institution of the suit a court fees is required which is determined by
the court according to the provisions of the court fees act of 1870, and on failure to pay the
court fees or postal charges the suit may be dismissed. This high cost of court fees compels
the litigants to abandon their just claims and defences. Here justice is not given but
sold.Thus court fees act is unconstitutional under Article 13(2) read with Article 14, which
was originally a method of raising fund and exploitation by ruler on ruled so that there can
be less accountability of the state .It also does not satisfy the ethical, time and other
essentials of the power spectrum
3. Advocacy: Advocates are inseparable part of the adversarial system , wherein the role of
judge is like a referee who decides the case on account of the performance of the both
parties advocates . He never intends to provide the justice by bringing the truth , but to
award the best competitor

(iii) DELIVERY OF JUSTICE

Delivery of justice is basically the part and parcel of the executive branch of the government
popularly identified as the access to justice through administrative authorities. Article 256

gives a supervisory power to the union over state for compliance of laws, and Article 356 read with
Article 365 is the consequential result for non compliance of constitutional obligations by the
state .But when the executive fails to perform his duty , the courts venture to deliver justice as a
corrective measure. Article 14 casts a duty on the state which also includes judiciary to provide
justice by giving equal protection of laws to all its citizens . But it has been seen that on many
occasions judiciary has failed to provide the justice according to the provisions of constitution and
statutes. It‘s analysis can be done through following

CASE ANALYSIS
S.C. Advocates- On- Record Association v/s Union of India[28]
FACTS: In this case a class petition was filed by the petitioner with regard to filing of
the vacancies in Supreme Court and high courts. The issue in this case was with
regard to the role of chief justice of India in appointment, transfer and fixation of
number of judges in Supreme Court and high courts.
JUDGMENT : Supreme court held that –
(1* The initiation for the appointment of the judges in supreme court and High
courts shall be taken by a collegiums, wherein decision be taken by the chief justice
of India after consultation with two senior most judges of supreme court . The
President in matter of appointment of supreme court and high court Judges, is bound
by the opinion of the chief justice of India , and the term consultation used in Article
124(2) and Article 217(1) means concurrence.
(2* The opinion of chief justice of India does not have mere primacy but is
determinative in the matter of transfer of judges of high courts under Article 222.
(3* Number of judges in high courts is sufficient but Supreme Court is empowered to
order the union to constitute a committee in future for fixation of number of judges.
Maneka Gandhi v Union of India

FACTS: In this case the passport of the Petitioner was seized on ground of interest of public by the
central government under section 10(3)(c) of the Passport Act 1967 without giving her opportunity
of any hearing . Hence she filed a writ petition under art 32 on following grounds –

(1* Section 10(3)(c ) is violative of Article 21 as it does not prescribed any procedure for the seizure
of the passport.

(2* Section 10(3)(c) is violative. of Article 14 as power conferred to the delegate is excessive .

(3* Section 10(3)(c) is violative of Article 19 (1)(a) and Article 19(1)(g) .

(4* She was denied from the opportunity of hearing which amount to the arbitrary exercise of the
power violating of Article 14.

JUDGMENT: in this case supreme court observed (not given the judgment) after assessing the
evidences that the seizure of the passport was mala fide in violation of Article 14 , 19 , 21 .
Procedure established by the law means a procedure which is just, fair and reasonable. Rule of Audi
Alteram Partem is a part of natural law protected underArticle 21

Importance of Precedent in Statutory and Codified Systems

In common law legal systems, a precedent or authority is a principle or rule established in a previous
legal case that is either binding on or persuasive for a court or other tribunal when deciding
subsequent cases with similar issues or facts. The general principle in common law legal systems is
that similar cases should be decided so as to give similar and predictable outcomes, and the principle
of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines
"precedent" as a "rule of law established for the first time by a court for a particular type of case and
thereafter referred to in deciding similar cases."[1] Common law precedent is a third kind of law, on
equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory
law (regulations promulgated by executive branch agencies).

Stare decisis

is a legal principle by which judges are obliged to respect the precedent established by prior
decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et
non quieta movere: "to stand by decisions and not disturb the undisturbed."[2] In a legal context,
this is understood to mean that courts should generally abide by precedent and not disturb settled
matters.[

Case law

is the set of existing rulings which have made new interpretations of law and, therefore, can be
cited as precedent. In most countries, including most European countries, the term is applied to any
set of rulings on law which is guided by previous rulings, for example, previous decisions of a
government agency - that is, precedential case law can arise from either a judicial ruling or a ruling
of an adjudication within an executive branch agency. Trials and hearings that do not result in
written decisions of a court of record do not create precedent for future court decisions.[

Case law in common law systems

In the common law tradition, courts decide the law applicable to a case by interpreting statutes and
applying precedent which record how and why prior cases have been decided. Unlike most civil law
systems, common law systems follow the doctrine of stare decisis, by which most courts are bound
by their own previous decisions in similar cases, and all lower courts should make decisions
consistent with previous decisions of higher courts

Binding precedent

Precedent that must be applied or followed is known as binding precedent (alternately

metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis,
a lower court must honor findings of law made by a higher court that is within the appeals path of
cases the court hears. In state and federal courts in the United States of America, jurisdiction is often
divided geographically among local trial courts, several of which fall under the territory of a regional
appeals court. All appellate courts fall under a highest court (sometimes but not always called a
"supreme court").

Lower courts

A lower court's opinion may be considered as persuasive authority if the judge believes they have
applied the correct legal principle and reasoning.

Higher courts in other circuits

A court may consider the ruling of a higher court that is not binding. For example, a district court in
the United States First Circuit could consider a ruling made by the United States Court of Appeals for
the Ninth Circuit as persuasive authority.

Horizontal courts

Courts may consider rulings made in other courts that are of equivalent authority in the legal
system. For example, an appellate court for one district could consider a ruling issued by an appeals
court in another district.

Statements made in obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not
binding, will often be persuasive to lower courts.

The obiter dicta is usually translated as "other things said", but due to the high number of judges and
several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the
decision).

For this reason, the obiter dicta may usually be taken into consideration.

Binding precedent in English law

Judges are bound by the law of binding precedent in England and Wales and other common law
jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries
throughout the world, particularly in mainland Europe, civil law means that judges take case law into
account in a similar way, but are not obliged to do so and are required to consider the precedent in
terms of principle. Their fellow judges' decisions may be persuasive but are not binding. Under the
English legal system, judges are not necessarily entitled to make their own decisions about the
development or interpretations of the law
Development

Early English common law did not have or require the stare decisis doctrine for a range of legal and
technological reasons:

 During the formative period of the common law, the royal courts constituted only one among
many fora in which in the English could settle their disputes. The royal courts operated alongside and
in competition with ecclesiastic, manorial, urban, mercantile, and local courts.

 Royal courts were not organised into a hierarchy, instead different royal courts (exchequer,
common pleas, king's bench, and chancery) were in competition with each other.

 Substantial law on almost all matters was neither legislated nor codified, eliminating the need for
courts to interpret legislation.

 Common law's main distinctive features and focus were not substantial law, which was customary
law, but procedural.

 The practice of citing previous cases was not to find binding legal rules but as evidence of custom.

 Customary law was not a rational and consistent body of rules and does not require a system of
binding precedent.

 Before the printing press, the state of the written records of cases rendered the stare decisis
doctrine utterly impracticable.

These features changed over time, opening the door to the doctrine of stare decisis:

Pros and cons

There is much discussion about the virtue or irrationality of using case law in the context of stare
decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes
decisions "predictable." For example, a business person can be reasonably assured of predicting a
decision where the facts of his or her case are sufficiently similar to a case decided previously. This
parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution. An
argument often used against the system is that it is undemocratic as it allows judges, which may or
may not be elected, to make law.

A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter
the case law (other than constitutional interpretations) by statute, the legislature is empowered to
do so.[33] Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it
to support precedent that the judge supported anyway, but ignoring it in order to change precedent
with which the judge disagreed.

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare
decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the
Constitution, and then this error in interpretation can be propagated and increased by further
precedent until a result is obtained that is greatly different from the original understanding of the
Constitution