FOUNDATION PAPER III

JUDICIAL PROCESS

Presented by-

Prof Alka R. Patil Department of Law,

University of Mumbai

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JUDICIAL PROCESS

• “Judicial process” means any judicial proceeding in connection with the dispensation of justice by any court of competent jurisdiction.

• “Social ordering” means activating the instrument of judicial Process is setting right the wrong done or eliminating injustice from the society.

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Historical Background of Judicial System in India

• The present judicial system of India was not a sudden creation.

• Slow and gradual process• After Constitution have been the greatest

molding factors.• Administration of justice is one of the most

essential function of the state.• If men were god.• Laws and courts have always gone together.

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JUDICIAL SYSTEM IN ANCIENT INDIA

• Its started when Manu and Brihaspati gave us Dharma Shartras,

• Narada the smritis, &• Kautilya the Arthshartra• In ancient times, India has a fairly well-

developed and sophisticated system of adve law.

• In civil judicial proceeding • Plaint- Purva Paksha• Written statement – Uttar Paksha 4

• The conclusion – Nirnaya• Certified copies- Jayapatra• The doctrine of res judicata – Pran Nyaya• In Criminal Law---classification of offence• Rape, dacoity and conventional offences.• Punishment was prescribed for causing dame

to trees but no serious matters.• Six types of punishment• Fine, reprimand, torture, imprisonment, death

and banishment

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• Theft was 3 kinds• Open or patent thieves- traders who employed

false weights, measures, gamblers, etc,.• Secret thieves – clandestinely (done secretly,

concealed)• Manu prescribed-(oath)• Judge cause a Brahmin to swear by his truth• Kshatriya by his weapons• A Vaishya by his Cattle, grain and gold• A shudra by imprecating on his head the guilty of

all grievous offences.• Bentham critise above oath

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• Taghlaq period – civil procedure code called (fiqha-e-feroze shahi)

• written in Arabic & was translated into Persian under the order of (F-E-F SHAHI).

• Period of Aurangezeb (above repeal) (Fatawa-i-Alamgiri written in1670.

• Plaintiff – Muddai• Defendant – Mudda Allaih• Plaint – Daawa, the complaint in criminal cases –

Istaghasa• British Govtn – four Law Commission years 1834-

1947

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JUDICIAL PROCEDURE IN ANCIENT TIMES.

• In early Vedic times, no judicial procedure• Rigveda gives civil laws• The kings can do no wrong• Disputes according to the rule of their own

profession. Artisans, trade guilds, money-lenders etc,.

• No limits to the jurisdiction of courts in Civil matters.

• No evidence was forthcoming• Plaintiff-the Prasnin, the defendant –Abhi

Prasnin, judge- Prasna-Viveka

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JUDICIAL SYSTEM IN PRESENT INDIA• Is a foreign transplant on Indian soil.• Constitution of India- three types of court• The Supreme Court of India. instrument of social

ordering – Article 32.

Chapter IV of Part V

Original jurisdiction-dispute betn centre and state.

Appellate Jurisdiction- (substantial question) Article 132,133 and 136.

Advisory Jurisdiction – (the court report to president- Ques of public importance- Article 143.

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HIGH COURTS• Chapter V part VI of the const.• Establishment• Court of Record – power to punish• Appointment-by the president after

consulting the CJ of India, the Governor CJ of High Court

• Number of Judges- fixed by the president• Qualifications –10 yrs judicial office/Adv high

court• Tenure- 62 yrs. Cont…..

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• Salary- prescribed 2nd Schedule of the Constitution

• Conduct Discussion-not be any legislature, Central or State except on a motion for his removal

• Writ Jurisdiction-Article 226• Superintendence- Article 227- over all Courts

and Tribunals within its territorial Jurisdiction.• Subordinate courts-Chapter VI of Part Vi• Panchayats Part IV Article 40-state organize &

73rd and 74th Amendement.11

THE LITIGATION PROCESS• Civil litigation• Criminal litigation• Alternative dispute resolution—out of court

1)Arbitration

2)Mediation

3)Conciliation

4)Negotiation

5)Lok adalat.

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JUDICIAL PROCESS AS AN INSTUMENT OF SOCIAL ORDERING

• judicial process & social ordering meaning

• Article 32- instrument of social ordering

• Administration of justice is application of legal principles

through the court of law.

• Cardozo, a democratic system-judicial process becomes an

instrument of social ordering.

• Every society has to maintain- rights and duties.

• Various factors play imp role in the decision making by the

courts

1. Precedent

2. Custom

3. Morality and sociology. Judicial process 13

PRECEDENT

Judicial precedent in England with authority: it is not merely the evidence of law but a source of it; and the courts are bound to follow the law that is so established……….

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Meaning of Precedent

• Is statement of Law found in a higher judicial decision, followed by the same court or subordinate court.

• “law” involves and be speaks of a uniformity.• The judges surely could hat have ignored the

mores, the customs, usages and habits of the people.

• In Common Law of England, precedents –to some extent, based on the recognized, reasonable and time honored customs and usages of the people.

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PRECEDENT AS A SOURCE OF LAW• Precedent speaks with authority• Principle becomes binding for future cases and

it thus becomes a source of law.• An established rule to abide by the former

precedents where the same points come again in litigation.

• Authoritative precedents are a legal source of Law.

• Persuasive precedents are a historical source of law (not a binding)

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Doctrine of Precedent• Two meanings• The strict sense – should be regarded as

authoritative and should be followed except in certain circumstance.

• The loose sense – reported judgments of the law courts meant to be cited, and that these judgments will probably be followed by the judges.

• Carry some legal principles.• Legal principles—ratio decidendi (question of Law)• The ratio decidendi is the heart of a precedent.

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Nature of judicial precedent

• Is purely constitutive in nature and never abrogative.

• Create a Law but cannot alter it.• Judges are not at liberty to put their own

views.• Judges can fill in the gaps and remove

imperfections of the existing laws.

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Kinds of precedentsFour types of precedents

1)Declaratory and original precedents• Create law are original precedents• Declaratory of existing laws are declaratory

precedents.

2)Persuasive Precedents• judges are under no obligation to follow• But they must take into consideration.• In India, the decision of one High Court are only

persuasive precedents in other High Courts. 19

3) Absolutely Authoritative precedents

• A precedent is said to be authoritative –the court to which cited is to bound to follow it irrespective of the fact that the court doesn’t agree with that decision.

• AAPs , binding character of the precedents are absolute

• In India, every court is absolutely bound by the decision of court superior to itself.

• E.g. – single judge—divisional judges---full bench judges

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4) Conditionally Authoritative Precedents• Is one which though ordinarily binding on the

court to which it is cited.• Is liable to be disregarded in certain

circumstancesDoctrines of Precedent in Tribunals of India• If a Bench of the Tribunal wishes to take a view

different from the one taken by the earlier Bench,

• Propriety demands that it should place the matter before the president of the Tribunal so that the case is referred to a larger bench

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Doctrine of Precedent in High Courts of India• The decisions of a high Court binding on all

the subordinate Courts and Tribunals within its jurisdiction

• One High Court have only a persuasive value in a Court which is within the jurisdiction of another High Court.

• In conflict, superior Court always prevail.• Decision later in time to be follow appeals are

heard by a single judge—but conflict ---referred to a larger bench.

Conti……..

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• The Government of India Act 1935• Section 212 of above Act---The federal Court binding and they continue to

be so even after 1950 by the authority of Article 225,Article 395

Subject to the provision……….the law administered in any existing High Court..shall be same as immediately before the commencement of this constitution.

• Conflict between pre-constitution privy council decision and a Federal Court decision, Privy Council that would prevail.

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The Supreme Court and the Doctrine of Precedent

• The Supreme Court –1950• Highest Court, the law declared by it is binding

on all courts of the country.—Article 141• “law declared” means not only the ratio

decidendi of a decision but it includes also obiter dictum.

• Ratio decidendi(reason of the decision) includes – a concrete decision binding on the parties--- the concrete, practical decision, the force of law.

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• Obiter dicta• Legal opinion on issues which they are not

asked to decide.• Ratio decidendi is the general principle of the

case• Obiter dicta is what the judge said unwantedly,

just by the way.• OD—which does not have any binding

authority

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• Supreme Court is not bound by its own decisions

• All courts in Article 141---Other than the Supreme Court.

• Supreme Court observed that the Doctrine of Stare Decisis is a very valuable principles of precedent

• If departed from it there are extraordinary or special reasons to do so.

• In Constitution– does not place any restriction on our power to review our earlier decision.

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Doctrine of Stare Decisis• Means “let the decision stand in its rightful

place”.• Maxim includes stare decisis et non quieta

movere---to stand by decisions and not to distrub what is settled.

• Two principles• Each court is absolutely bound by the decisions

of the courts above it.• Higher Courts are bound by their own decision. In

India, SC is not bound by its own decision• Doctrine of prospective overruling

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CUSTOM

“Custom may be defined as the uniformity of habits or conduct of

people under like circumstances”- Allen

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History

• Source of law• In early societies- no articulated system of

law- making• Law , we can discover• In tradition – one generation to another

generation• As at present- lost its efficacy as a source of

law (legal system grow)

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Kinds of Custom • Two kinds of Customs 1. Legal – operative per se as binding rule of law. Itself the

force of law. Absolute.I. Local – pervails in some defined locality. narrowest sense. In India, Local custom may be divided into twoGeographical Local Custom:Personal Local Custom :- these customs are Law only for a

particular sect or familyII. General - all the members of a societyKeeton– General Custom must not only be reasonable but

also be followed and accepted as bindingShould not be contrary to statute law as well as the

common law of the land.

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2. Conventional Custom – According to Salmond, is one whose authority is conditional on its acceptance and incorporation in agreements between the parties to be bound by it.

• Is referred to as usage and legal custom

Its apply in three stages:-

1. Well established, must be proved on the basis of evidence.

2. Through a judicial decision- form of a precedent

3. After this- finally accepted as a statutory law after its codification(development)

the Bills of Exchange and most of the provisions of the Sale of Goods Act have their origin in the conventional custom and usages.

Two types = General and Local CC.

LCC- are limited- particular place or particular transaction.

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Some condition which are fulfilled before the Court (conventional custom incorporated in a

contract-• It(Custom) is clearly established and fully known. Reasonable

• No fixed period• In India, custom need not be immemorial,Long usage is essential • Cannot alter the general law of the land• Valid only within the area of the observance• Main function- on such rights and liabilities of the

parties on which contract is silent• May relate to any trade, or commercial dealing

which may be national or even international

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Custom is one of the three source of Hindu Law.

Custom may override a statute subject to a clear proof of usage.

Hindu Law recognizes three types of Custom:-

1.Local Custom

2.Class Custom

3.Family Custom

A Custom is repeatedly brought to the notice of the court- the court may hold that custom- no proof at all.

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Distinction between Custom and Usage

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Requisites of a Valid Local CustomCertain requirements laid down by law in order

to be valid and operative as a source of law.

1.Reasonableness- no court will enforce an unreasonable, prevailing custom is never absolute, includes public justice and utility.

if it is contrary, apply principles of justice, equity and good conscience, custom should not be repugnant to reason, it can be refused recognition only when opposed to public policy.

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2. Conformity with Statute Law:-

Must not be contrary to statute law.

No custom can take away the force of an Act of Parliament.

In England this rule is observed as a positive principle of Law.

Savigny – customs and statutes are put on the same level- with respect to their efficacy

Customary law may complete, modify, or repeal a statute, it may create new rule.

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3.Observance as a Right –

Custom as a source of law

Observed as of right

Followed openly

Obligatory force

Supported by the general public opinion

A custom that every man is to contribute—his own pleasure.

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4. Immemorial Antiquity

Custom to have the force of law

Must be immemorial

Existed for so long a time

Any one can show the beginning of a custom, it is no good custom

In English law – has set an arbitrary but necessary limit to “legal memory” fixing it at 1189 AD,

In India this rule is not applicable.

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5. Peaceable Enjoyment

Custom must have been enjoyed peaceably

Custom is in dispute for a long time before a court,

It’s cannot be peaceable enjoyment.

6. Certainty

Must be certain

Which is vague or indefinite cannot be recognized.

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7. ConsistencyMust be consistency in the custom A particular custom must not come into conflict

with the other established custom.

8. ContinuityCustom to be valid Have been continuously in existence from time

immemorialIn England, it is essential that the custom should

not have abandoned at any time after 1189, and then re-continued

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CUSTOM AND PRESCRIPTION• Custom is a long practice operating as a source of law--

Prescription is along practiced operating as a source of rights

• Custom is lex loci--Prescription is fixed in the person• Course of conduct is practiced for a long time, it gives

rise to a rule of Law-(custom) whereas it(prescription) gives rise to a right.

• A custom extends to a particular place, locality, or community as a whole whereas Ps is of personal nature- individual or his relatives.

• A custom originates from long usage whereas a prescription originates from waiver of a right.

• Validity of custom, apply principles of justice and public utility but it is not so in the case of Ps.

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THEORIES OF CUSTOMARY LAW• Customary law is established not by legislators or

professionally trained judges but by popular practice.• Historical theory and Analytical theory-Two theories

of customary law.• Historical theory – law has its existence -the

common consciousness of the people and customary observance is not the cause of law but the evidence of its existence.

• The primary source from which all law which derives its legal efficacy & authority.

• Conduct of men from the beginning of time will continue to govern it to the end of time.

Cont….42

• Custom is a formal source of law.• Customary law may complete,• Modify or repeal a statute.• It may create new rule and substitute it for the

statutory rule which it has abolished.• Some author said- custom did not originate from

judicial decision instead originated from the household and relations.

• Customs posses the sanction of the people.• In the end- custom and statute are not equal.• Statute derives its authority from custom• Custom is the sole source of law—face of facts.

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ANALYTICAL THEORY• Here, custom derives its binding force not from its own

nature, but by state recognition—adopted by an Act of Parliament.

• There is no statute law- decision before a judge he may look into the custom for guidance.• Custom is the first and most essential law.• Custom enforced by courts because it is already law.—it

does not become law only by enforcement by court.• Most of the customs are recognized not by the court but

by the community as a whole & people.• Custom becomes a law when it is adopted by state

recognition.• Custom is based on reasonableness.

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IMPORTANCE OF CUSTOMARY LAW• Custom was the sole source of law in early times.• With the development of judicial process the imp

of custom is constantly diminishing.• Custom has played an importance role in the

development of Law. • In England, lex non scriptum (customary–to some

extent) lex est consuetudo- Law is English custom.

• In India, Indian Sale of Goods Act and the Indian Partnership Act, shall be taken subject to any custom, usage or contract to the contrary.

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• The law relating to• Succession, inheritance,• Property, contract etc. evolved from customary

rules.• The personal laws of the Hindus in India is at

present customary law which has recognized by judges and embodies in judicial decisions.

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MORALITYHISTORY

In early period- no distinction between law and morals.In Hindu law-no distinction between law and moralsIn the 19th century, Austin gave his theory that the law has nothing to do with morals. Law is the command of the sovereign.In modern times, there is a change in the trend of thought because now the sociological approach to law indirectly studies morals also.

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Nature of law• In early law- pre state societies, was based on beliefs

and superstition. It was really not law, but quasi-law.• After the coming of the state, customs and traditions

came to be recognized by judges.• In England these became the common law—we have

the judge made law.• In India, law was based on religious precepts.• In Hindu society, law was based—with dharma-it’s

recognized legal rights & duties=morals rights &duties.• Muslim rulers- it was the Koranic law( Mohamedan

Law comprises the customs of Arabia cleansed and purified by the holy Prophet Muhammad.

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Nature of Morality• Morality is an internal force• Morality appeals to the conscience, while law acts

externally through sanctions.• Contents of Law and Morality are often identical,• Even contents are sometimes in conflict.• Moralists, talked of “moral sanctions”.• Moral sanctions are more appropriately “social

sanctions” or “internal sanctions”• If a rule of morality is broken, then society would

look down upon the wrong-doer • Morality does not frighten/command but enjoins

through an appeal to the conscience.

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Morality and religion• Intimate relation between Morality and religion• Two are inter-dependent – it’s difficult to say-• Morality was the product of religion or vise versa.• Morality removed from religion some of the

fantastic, unreasonable or superstitious customs that had crept into religion

• Religion can be distinguished from morality-• There are external sanctions in religion, while

there are no externals threats in morality.• Religious- reward for good actions, and

punishments for evil deeds.• Man wills himself to be moral.

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RELATION BETWEEN LAW AND MORALITY

• Law is a powerful instrumentality for the maintenance for peace.

• Law is based on public policy• Public policy is based on some healthy principles

—healthy moral principles• Law is meant to maintain the healthy principles

of moral law, or the positive morals of the people.

• Law is a command• Therefore law is maintain morality.

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Necessary connection between Law and Morality

• Necessarily, everyone has a duty to obey the law of his country.

• Necessarily, everyone has a reason to obey the law of his country.

• Necessarily, if the law is just all its subjects have a duty to obey it.

• Necessarily, if the govtn of a country is democratic all its subjects have a duty to obey its law.

• Necessarily, one has an obligation to support a just legal system

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Distinction between law and MoralsLaw

• Concentrates mainly on the society and lays down rules concerning the relationship of individual with each other and with the state.

• Concerned with the conduct of the individual for which it lays down standard.

• Law is to help in smooth functioning of the society.

• Law has relative value, time, place & so varies from society to society

Morals

• Concerned with the individual and lay down rules for the moulding of his character.

• Morals look into motive, they should be followed because they are good in themselves.

• Morals is a matter of individual conscience.

• Morals are considered to be of universal value.

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Relation between law and Morals1. Morals as the basis of law --- •In early societies, all rules originated from the common source and the sanction behind them was of the same nature.•When the state came into being, those rules which were important of the society.•State put its own sanction and then enforced them.•These rules came to be known as “law”•Both law and morals originated from the same source but in the course of their development they differed from each other.

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Morals as the test of law

• In the 17th & 18th century- law must conform to natural law.

• In modern times, law must conform to morals, if it is not then it’s not valid and binding, does not hold good.

• If the legal standards are too high, there are great difficulties of enforcement.

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Morals as the End of Law

• Morals have been often considered to be the end of Law.

• Law is defined in terms of “justice” by many jurists.

• The aim of law to secure justice which is very much based upon morals.

• The law has always a purpose, it is a means to an end and this end is the welfare of society.

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Influence of Morals on Law• The law of every modern state- the influence of

both the accepted social morality and wider moral ideals.

• In the United States, the ultimate criteria of legal validity--- incorporate principles of justice or substantive moral values.

• At last, problems would be found in all branches of philosophy,…….

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SOCIOLOGY• 1. The study of human social behavior,

especially the study of the origins, organization, institutions, and development of human society.

• 2. Analysis of a social institution or societal segment as a self-contained entity or in relation to society as a whole.

• Sociology of law is a diverse field of study• Examines the interaction of law with society• Includes philosophy of law, social theory, and

criminology.58

• Institutions of social construction, social norms, dispute processing and legal culture.

• Includes law and society(socio-legal studies)• Philosophy, history and custom may give its

consistency.• Everything must be subordinated to the end of

social justice or welfare of the society.• Sociology is especially fruitful in the process of

constitutional law, certain branches of private law and the welfare legislation.

• Law can be extensive used as an instrument of social change---effective method of social control.

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JUDICIAL PROCESS AND CREATIVITY IN LAW

• source of law is used different senses•Source is origin .•Source of law 1) material and formal•Material –legal and Historical•Legal 1) legislation 2)precedent 3)custom 4)agreement and Professional opinion.• formal sources are the law derives its force and validity.—will of the state.•Material sources are 2 types conti…

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• Legal sources are those which are recognized as such by the law itself.

• Historical material source are unauthoritative lacking formal recognition by the law.

• They have no legal recognition.LEGAL SOURCES OF LAW ARE– • Reasonable immemorial customs• Judicial decisions• Acts of legislature• Equity• conventions

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Source of law in India

• Prior British rule in India, Hindus and Muslims –population of this country—were governed by their personal laws.

• Original Hindu law -4 sources of law

I. The Sruti;

II.The Smritis:

III.The conduct of the virtuous, and

IV.One’s own conscience.

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• The primary sources of Mohammedan law—

I. Quran;

II.Sunnat and Ahadis;

III.Ijma, and

IV.Qiyas .

Classification of Sources• The binding source of law• Persuasive sources

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Law and society• Indian legal system is dependence on colonial rule.• The practice of the British legal system created

conflict between old laws and modern notions of justice------Justice Krishna Iyer.

• Law is a social science—linked with society.• A society cannot remain static but it keeps on

changing with economic, scientific and technological developments.

• Law and society gave inspiration---therefore pronounced sociological theory for the study of law.

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• Law depends on popular acceptance which has a great creative force.

• Law consists not of propositions alone, but of legal institutions which people cherish in the society.

• Law is not a branding omnipotence in the sky but a flexible instrument of social order,

• The law should keep on changing along with the changing social order.

• New added and old should be discarded-time to time.

• This change is known as the dynamic of law.

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LAW ANF THE LEGISLATION (THE CONSTITUTION)

• British rule in India, development of native law was very slow.

• Britisher were orthodox(their rule and regulations)

• 1950—const of India, independence of the country created a new era.

• Social economic changes in the country.—new challenges before the nation

• At present gap- between poor and the rich.—weaker section of the society, prevent exploitation, corruption etc,.

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Objectives of the constitution• Legislative process started for bringing about

socio-economic changes for all round rural upliftment.

• Village Panchayat.• Improvement of agriculture, horticulture and

animal husbandry, schemes, project and programmed have been launched.

• Numerous labour legislations have been enacted

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• The supreme court of India – guarantor and protector of the fundamental rights & interpreter of the constitution

• Constitutional duty to secure socio-economic & political justice to all the citizens of the country.

• Judicial activism had interpreted the law.• Art 12- other authorities, Maneka Gandhi case

expand the fundtl rts.• Directive Principles of state policy

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• Public interest litigation-social Action litigation.

1.Protection of the weaker sections of society- Art.32

2.Protection of Ecology and Environmental Pollution

3.Securing Human Rights and Dignity

4.Matters of Public Interest

5.Granting of Reliefs

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Procedure for PIL

• May not apply strict rules in case of PIL.• There must be sufficient material in the

petition• Onus of providing specific data• Documentary evidence to substantial

evidence is on the petitioner.

Character of Judgment in PIL

Judgment in rem

Issue of notice is not necessary in every case.70

Interaction of social forces and law• Tend to mould each other• In a democracy-• Social opinion and the law moulding activities

of the state is more obvious and articulate one.

• Public opinion- not only through elected representatives in the Legislative Assemblies,

• But also public discussion in press, media, radio, public lectures,……other channels

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LAW AND SOCIAL CHANGE• In a changing society, • Law cannot afford to remain static.• Law takes its own time to articulate social

changes through a process of amendment.• Social group play a vital role.• Indian societies applies- with changing norms of

legitimacy in every society.• The history of development of Hindu Law,-----

it was never static, changed from time to time to meet challenges of the changing social pattern at different time.

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Rule of law is a Dynamic concept• Adjustment of law to social needs is a continuing

process.• Law must always be responsive to the social

development.• Continuing process requires a watchful

legislature and an alert judiciary.Need for certainty in Law• The law should be clear & certain so that people

know, where they stand and conduct their affairs • Mathematically accurate classification cannot be

done.• Reasonable & rational applies , should not be

allowed vagueness and uncertainty.

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LEGAL AID• Means giving to persons of limited means gratis or

nominal fees.• Legal advice & legal assistance in civil and criminal

matters.• Preamble justice, social, economic and political• Dignity of the individual and the unity of the Nation• Articles 14 and 38 of the constitution provide-• Equality of justice to all citizens.• Article 39-A legal aid—SC play role on it.• Lok Adalats.-legal Services Authorities Act, 1987.----------------------------------***-------------------------------

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STATUTORY AND CODIFIED SYSTEM

CODIFICATION“Code” means s systematic collection of statutes,

body of laws, so arranged as to avoid inconsistency and overlapping.

• Compilation• Promulgation• Collection• Systematization of the body of law in a coherent

form by an competent state.

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• The reduction of the whole corpus juris (law store)so far as practicable, in the form of enacted law.

• In England, Bentham- very strongly pleaded legislation and precedent.

• In India, the code of Manu is a very ancient code.

• Britishers paid attention- codification• Provisions of the Charter Act of 1833- 1st

Indian Commission chairman Lord Macaulay-• Drafted a number of codes IPC,CPC,ILA

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• 2nd Law Commission established and many acts were passed

• 1861 &1879 Law Commissions were again set up & passed many Act like

• CrPC & IPC were passed and revised.Condition for codification• A certain background and a certain stage of social

development are necessary.• The uncertainty character of the existing law.• The development of an efficient organ of

legislation• The needs for one uniform law in a political

community or received divergent locals laws.77

Classification of codesCreative –makes a law for the 1st time without any

reference to any other law.• Law making by legislature• E.g. Indian Penal Code.Consolidating –consolidates whole law- statutory,

customary and precedent,• Systematically and simplifying the law,• E.g. Transfer of Property Act,1882Creative and Consolidating –make law as well as

consolidate the existing law on a particular subject.• E.g. the recent Hindu Legislation

Creative –makes a law for the 1st time without any reference to any other law.

• Law making by legislature• E.g. Indian Penal Code.Consolidating –consolidates whole law- statutory,

customary and precedent,• Systematically and simplifying the law,• E.g. Transfer of Property Act,1882Creative and Consolidating –make law as well as

consolidate the existing law on a particular subject.• E.g. the recent Hindu Legislation

78

Merits of Codification • Necessary and useful for the development of

society

1.Certainty –no vague and uncertain—is in precedent and custom

2.Simplicity –makes law simple and accessible to everybody-citizens know their Rts and duties.

3.Logical Arrangement—no chance of conflict or inconsistency arising among different provisions of the law. Cont……..

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4. Stability –makes the law simple and stable.• stability is very essential for law.• People may have confidence in it.• The legal transactions may be made easy.

5. Planned Development –codification brings uniformity, planned development of the country.

6. Unity –uniform and wider application.• Developing affinity and unity among the

people---governed by the same laws.

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Demerits of Codification• Rigidity –the codification causes rigidity in the

law.• Changing condition in society---law must be

change ----becomes difficult----only amendments—(its not easy and time consuming)

• Incompleteness—not possible to anticipate all the problems(future)—the codes are incomplete

• New problem arise—difficult for the people and courts to tackle it.—solution—but not uniformity to all cases.

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• Hardship –codes gives uniform laws—applicable to all----territory of the country.

• Rarely on the ground of convictions, custom and habits of the individuals

• Some cases, causes great hardship.• Defective Codes –certain defects are bound to

remain in a code• Cannot be removed except by a legislative

amendments.• It causes great delay and inconvenience.

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INTERPRETATION OF STATUTES• Statutes are carefully drawn up.• Statutory interpretation is the process by which

courts interpret and apply legislation.• Interpretation is often necessary when a case

involves a statute.• there is some ambiguity or vagueness in the

words of the statute that must be resolved by the judge.

• In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations.

• Statutes are carefully drawn up.• Statutory interpretation is the process by which

courts interpret and apply legislation.• Interpretation is often necessary when a case

involves a statute.• there is some ambiguity or vagueness in the

words of the statute that must be resolved by the judge.

• In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations. 83

• Meaning• Words are imperfect symbols to communicate

intent. They are ambiguous and change in meaning over time.

• Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.

• Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.

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Interpretation is of two kinds

1.Literal intrepretation (grammatical); - literal construction of law.

Reasonable manner,

2. Functional interpretation (logical)• Conflicts between sources of law• Internal and external consistency• Statements of the legislature • Ejusdem generis ("of the same kinds, class, or

nature") car ,motor bikes etc…..(vehical)

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• Strict and Equitable interpretation• Restrictive and Extensive Interpretation• Logical Interpretation• Historical interpretation• Equity of statute

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PUBLIC INTEREST LITIGATION

• Introduction• Legal history—emergency provision 1975-77

U.S.A.– prior to 1980---1st reported case of PIL 1979—Husainara Khatoon V. state of Bihar.---S.P. Gupta V. U.O.I---1981 case of Anil Yadav V. State of Bihar

• Meaning –a legal action ---relates public interest and general interest.

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• People’s union for Democratic Rights V. union of India.

• Rule of Law• Concept of PIL----Article 32 &226.• Writ jurisdiction under above Articles • Explain five types of writs• Subjects of PIL-public interest, labour matters,

matters of neglected children• Procedure for filing PIL-a) filing b) the

procedure

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• Against whom PIL can be filed• Aspects of PIL-a)remedial in nature b)

representative standing c) citizen standing d) non-adversarial litigation

• Recent development • significant part of judicial process• Conclusion

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JUDICIAL ACTIVISM

INTRODUCTION• Judicial discretion cannot be guided by

expediency. • Courts are not free from statutory law.• justice rendered according to law.• Judges are not entitled to discretionary.• Judicial discretion must be law and order and

the principles.

INTRODUCTION• Judicial discretion cannot be guided by

expediency. • Courts are not free from statutory law.• justice rendered according to law.• Judges are not entitled to discretionary.• Judicial discretion must be law and order and

the principles.

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• Evolution of judicial activism in India-difficult to origin—since judiciary has come—under the Govt of India Act,1935—subsequent to 1935 under the High Courts Act, 1861 exhibited certain flashes of Judicial Activism

• Justice Mahmood of the Allahabad H.C(the seed for judicial activism in India)

• 1950-basic structure of the constitution.• 21 H.Courts & S.C at the apex—Indira Gandhi

case.• Concept of state—locus standi—Art.141, Art

21,

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• Definition –way of exercising judicial power which seeks fundtl recodification of power relations among the dominant institutions of state, manned by members of the ruling classes.

• Judicial activism and judicial restraint are the –assertiveness of judicial power.

• U.S. the concept of judicial activism• Reasons for judicial Activism.• Near collapse of responsible government-Article

50• Pressure on judiciary to step in aid—protect

their fundtl rts and freedoms

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• Judicial enthusiasm to participate in social reform and change.—PIL,

• Legislative vacuum left open—parliament & state legislatures—make law for 24 hours a day and 365 days in a year---cannot be sufficient to changing need of the society.

• The constitutional scheme—Article 13,Article 32 &131,132 to 137. Articles 142,143, 145 &129.

• Authority to make final declaration as to validity of a law.—Article 141—indra sawney v. u.o.i.

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• Role of judiciary as guardian of fundamental rights—Articles 13, 32 to 35 and 226.

• Public confidence in the judiciary.• A framework for the Analysis of Judicial

Activism— different between India and U.S.A• Different dimensions of judicial Activism—

1.Majoritarianism—S.C.—judicial review—unconstitutional.

2.Interpretive stability—A.k.gopalan, Maneka Gandhi's, E.p.royappa case,

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3. substance- Democratic process Distinction—doctrine of legitimate expectations

4. Specificity of policy—positive policy e.g. Taj Mahal

5. Availability of an alternate policy maker—judicial review---vishake’s case.

6. Typical examples of judicial Activism in India– Article 368 keshvananda bharti case, --Art 143 ,142 (1), 129 and124.

7. Judicial activism in India 1980’s---emergency 1975

8. Basic structure—supremacy of const, democratic form of govt, separation of power between 3 organs etc

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9. Fundamental rights10. Personal liberty and judicial Activism—

Articles 19 (1)(d), 21.11. Menaka Gandhi v. UOI—Indian judicial

ActivismJudicial Activism of Supreme Court—Changing

Facet of Divertive.P. and fundamental rights after 1980S.P

Equal pay for equal workRights of childrenRight to free legal aid

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• Right to Health care of citizens• Right to Education• Right to pollution free environment

JUDICIAL ACTIVISM IN INDIA AND EMERGING TRENDS Article 324-election Duty and educationPublic interest limitation---limits and limitationPrivileges of parliament and judicial reviewAffirmative action and its limitsArticle 21 and 247—speedy justiceJudicial legislation—Article 21Role of judicial Activism--------------------------**************---------------------------

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DHARMA• In India the development of jurisprudence—

Hindu law,--western jurists and legal philosophers.

• Indian jurists—narmada, jaimini, Yagnavalkya, Manu , kane, Kautilya were there.

• These thinkers developed their own system of law

• In the 20th contury indain Jurists, Dr BR Ambedkar, PV Gajendragadkar, PN Bhagvati, chagla, Krishna Iyer—developed legal system and principles of reasoning and human being.

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Dharma or Law

Hindu legal works, the word for law is Dharma

Dharma means—sustains or holds

English Writers ---Dharma—includes religious, moral, social and legal duties and can only be defined by its contents.

Hindu scriptures—Dharma stands religious rights, fixed principles of rules of conduct and the whole body of religious duties.

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Hindu legal theory is Hindu Dharmasastra• Hindu jurisprudence is rooted in Hindu religion

and custom• Personal law of Mahomedans• Truths of Hinduism are Brahma(God)—

Dharma(conformity with a man’s inner and true nature) Karma(act accruing merits and demerits according to Dharma)

• Man has to do Karma• Go along the path of Dharma & attain Brahma—

called Moksha.• when he attains Brahma or Moksha he is

governed by the Dharmasastras, or law.• Muslim too have accepted the Koran or God’s

words---source of their Law100

• Jamini’s view-conducive to the welfare of the society.---According to him—Dharma-ordained by the Vedas.---Dharma includes 3 things, relation, duty and inseparable quality of a thing or order.

1.1st, religion—to the law of God.

2.2nd, Dharma stands for duty or Kartavya

3.3rd,Dharma connotes essential characteristic features of a thing or object.

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• Sources of Dharma- law is discoverable by reason because the will of God & human reason coincide.

• Smritikar(those person who were learned in the Vedas) laid down 4 sources of law-Veda, Smriti, Sadachar & self-satisfaction.—they interprete it but not create it(Vedas).

• Law givers Dharmasutras BC 600 to 200- Vedas were studied by the Brahmins who were divided into various branches.

• The sutras were Dharma sutras.• The srautasutras and the Grihyasutras were the sutras

dealing with ceremonial and domestic rituals.• Most ancient legal literature includes the

Dharmasutras of Gautam Baudhayana, Apastamba and Vaisistha.

• The Dharmasastras existed even before BC 600 to 300.102

• Gautam and His Dharmasutra—28 chapters,---included source of Dharma, raja dharma, certain Punishment, etc,. On his Dharmasutra, Haradatta wrote a commentary called the Mitakshara.

• Baudhayana’s– mentioned 12 kind of sons belonging to both the families and inheriting.

• A) the class in which the sons can inherit their shares in the property.

• B) the sons—entitled to the benefits of membership of the family, & nothing by way of inheritance.

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• Apastamba-- - composed in the 4th & 5th century BC---recognized 6 marriage ties as the only proper marriage ties.—didn’t recognized (secondary and adopted sons, & prohibited the gifting or sale of children ) even the daughter must be regarded as an heir.

• Vasistha and his Dharmasutra– round about BC 300, --authoritative character of custom and recognised 6 forms of marriage rites & permitted re-marriages of widows.---recognized 12 types of sons---6 of them being heirs—remaining 6 are not entitled to any succession but only rights of member of the family

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• Manu and Manusmriti (about 5th Century BC or about BC 200)– manu gave 18 titles of rights and remedies—gifts, sale, deposits, relation—etc,.

• Yajnavalkya– great jurist –foundation of the law of inheritance—1st recognised “cognates” as heir.

• Narada –he gave a legal code, distinction betn law and ethics, --doctrine of civil law, allowed remarriage of widows—gave adopted son the 9th rank.

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• Brihaspati – the rules of civil law, --gave father and son had equal rights in ancestral property;

Mother , daughter &widow of the deceased Hindu should be regarded as his heirs.—fair treatment of women—clear distinction betn civil and cr,laws & justice.

• Katyayana– several types of stridhan( women power of disposal)– About 600 BC

• Reconciliation between stability and change- Legal order should appear fixed and stable—

exigencies of changing human needs.

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• Law as Duty• Law, Religion and Morals• Conception of law– according to Vedas, law

as a divine origin. Manu, law is an order of human behaviour (relation).

• Law and equality

• Law as Duty• Law, Religion and Morals• Conception of law– according to Vedas, law

as a divine origin. Manu, law is an order of human behaviour (relation).

• Law and equality

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THANK YOU

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